Rios-Lopez v. Idaho Department of Correction et al
MEMORANDUM DECISION AND ORDER Petitioner's Motion for Appointment of Counsel (Dkt. 11 ) is DENIED. Respondent's Motion for Extension of Time to File Answer or Pre-Answer Motion (Dkt. 15 ) is GRANTED. Respondent's Motion for Summar y Dismissal (Dkt. 18 ) is CONDITIONALLY GRANTED on statute of limitations grounds. Petitioner shall have 60 days after entry of this Order in which to file a response to this Order. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)(Dkt 19 and this Memorandum Decision & Order mailed to Mr. Rios-Lopez at new address)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
MARCOS A. RIOS LOPEZ,
Case No. 1:17-cv-00509-CWD
Pending before the Court in Marcos A. Rios-Lopez’s federal habeas corpus matter
are several motions filed by the parties. All named parties have consented to the
jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt.
21.) See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. The Court takes judicial notice of the
records from Petitioner’s state court proceedings, which have been lodged by the parties.
See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).
Having reviewed the motions, responses, and the record in this case, the Court
enters the following Order.
PETITIONER’S MOTION FOR APPOINTMENT OF COUNSEL
Petitioner filed a Motion for Appointment of Counsel, asserting that his English
skills are very poor and that he has no legal training to properly pursue his case. (Dkt.
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There is no constitutional right to counsel in a habeas corpus action. Coleman v.
Thompson, 501 U.S. 722, 755 (1991). A habeas petitioner has a right to counsel, as
provided by rule, if counsel is necessary for effective discovery or if an evidentiary
hearing is required in his case. See Rules 6(a) & 8(c) of the Rules Governing Section
2254 Cases. In addition, the Court may exercise its discretion to appoint counsel for an
indigent petitioner in any case where required by the interests of justice. 28 U.S.C. §
2254(h); 18 U.S.C. § 3006A(a)(2)(B). Whether counsel should be appointed turns on a
petitioner’s ability to articulate his claims in light of the complexity of the legal issues
and his likelihood of success on the merits. See Weygandt v. Look, 718 F.2d 952, 954 (9th
After reviewing the entire record, the Court concludes that appointing counsel
would not be helpful to the decisionmaking in this case. The issue of timeliness is
straightforward. Petitioner can respond with factual showings regarding equitable tolling
and actual innocence, neither of which is legally complex.
RESPONDENT’S MOTION FOR SUMMARY DISMISSAL
On November 13, 2018, Respondent filed a Motion for Summary Dismissal,
seeking dismissal of all of Petitioner’s claims. Petitioner’s response was due 30 days
later, but, to date, Petitioner has not filed a response, nor has he filed a motion for
extension of time. He did, however, file a consent-to-magistrate judge form, and so it is
clear that he has not abandoned his case. (Dkt 21.) Because perhaps Petitioner is waiting
until his request for appointment of counsel is ruled upon before he attempts to draft his
own response, the Court will permit additional time for a response, which shall be in the
MEMORANDUM DECISION AND ORDER - 2
form of a response to this Order to show that the conditional ruling below should not be
Standards of Law
A. Habeas Corpus Review
Federal habeas corpus relief under 28 U.S.C. § 2254 is available to petitioners who
show that they are held in custody under a state court judgment and that such custody
violates the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 2254(a).
Summary dismissal is appropriate where “it plainly appears from the face of the petition
and any attached exhibits that the petitioner is not entitled to relief in the district court.”
See Rule 4 of the Rules Governing Section 2254 Cases. When a petitioner’s compliance
with threshold procedural requirements is at issue, a respondent may file a motion for
summary dismissal, rather than an answer. White v. Lewis, 874 F.2d 599, 602 (9th Cir.
B. Statute of Limitations
The Antiterrorism and Effective Death Penalty Act (AEDPA) requires a petitioner
to seek federal habeas corpus relief within one year from several triggering dates
specified in 28 U.S.C. § 2244(d)(1)(A)-(D). Which trigger is applicable depends on the
nature and timing of the petitioner’s claims. The first trigger, § 2244(d)(1) provides a
means of calculating the limitations start date for the “application” as a whole, §
2244(d)(1)(A) (date of final judgment). The remaining three triggers require claim-byclaim consideration, § 2244(d)(1)(B) (governmental interference); § 2244(d)(1)(C) (new
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right made retroactive); § 2244(d)(1)(D) (new factual predicate). See Mardesich v. Cate,
668 F.3d 1164 (9th Cir. 2012), relying in part on dicta in Pace v. DiGuglielmo, 544 U.S.
408, 416 n.6 (2005)).
In all instances, one year means 366 days, for example, from January 1, 2000, to
January 1, 2001. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (applying
Federal Rule of Civil Procedure 6(a) to AEDPA).
The most common trigger is the first one, “the date on which the judgment became
final by the conclusion of direct review or the expiration of the time for seeking such
review.” 28 U.S.C. § 2244(d)(1)(A). That date can be calculated as follows.
No appeal is filed after state district court order or judgment
42 days later, see
Appeal is filed and Idaho Court of Appeals issues a
decision, but no petition for review is filed with the Idaho
21 days later, see
Appeal is filed and Idaho Supreme Court issues a decision
or denies a petition for review of an Idaho Court of Appeals
decision, and Petitioner does not file a petition for writ of
certiorari with the United States Supreme Court
90 days later, see
After Idaho Supreme Court issues a decision or denies a
petition for review, Petitioner files a petition for writ of
certiorari to the United States Supreme Court, and the
petition is denied
Date of denial
After Idaho Supreme Court issues a decision or denies a
petition for review, Petitioner files a petition for writ of
certiorari to the United States Supreme Court, the petition is
Date of decision
MEMORANDUM DECISION AND ORDER - 4
granted, and the United States Supreme Court issues a
In each instance above, “finality” is measured from entry of the final judgment or
order, not from a remittitur or mandate, which are mere formalities. Gonzales v. Thaler,
132 S.Ct. 641, 653 (2012); Clay v. United States, 537 U.S. 522, 529 (2003); Wixom v.
Washington, 264 F.3d 894, 898 n.4 (9th Cir. 2001).
AEDPA also contains a tolling provision that stops or suspends the one-year
limitations period from running during the time in “which a properly filed application for
State postconviction or other collateral review . . . is pending.” 28 U.S.C. § 2244(d)(2).
Because this particular statutory provision applies only to “pending” actions, the
additional 21-, 42- and 90-day time periods associated with the calculation of finality
after direct appeal are not applied to extend the tolling periods for post-conviction
actions. However, unlike direct appeal “finality,” the term “pending” does extend through
the date of the remittitur.1
The federal statute is not tolled between the date the direct appeal is “final” and
the filing of a proper post-conviction application, or between post-conviction finality and
any successive collateral review petition. Id. Each time statutory tolling ends, the statute
of limitations does not restart at one year, but begins running at the place where it
stopped before the post-conviction action was filed.
See Lawrence v. Florida, 549 U.S. 327, 337 (2007). “Pending” is determined according to each
particular state’s law. In Idaho, an appellate case remains pending until a remittitur is issued. See Cochran
v. State, 133 Idaho 205, 206, 984 P.2d 128, 129 (Idaho Ct. App. 1999).
MEMORANDUM DECISION AND ORDER - 5
Once a federal statute of limitations has expired, it cannot be reinstated or
resurrected by a later-filed state court action. See Ferguson v. Palmateer, 321 F.3d 820,
822 (9th Cir. 2003) (“section 2244(d) does not permit the reinitiation of the limitations
period that has ended before the state petition was filed”).
C. Equitable Tolling
If a petition is deemed untimely, a federal court can hear the claims if the
petitioner can establish that “equitable tolling” should be applied. In Pace v.
DiGuglielmo, the Supreme Court clarified that, “[g]enerally, a litigant seeking equitable
tolling bears the burden of establishing two elements: (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstances stood in his way.” 544
U.S. 408, 418 (2005). In addition, there must be a causal link between the lateness and
the extraordinary circumstances. See Bryant v. Schriro, 499 F.3d 1056, 1061 (9th Cir.
2007) (holding that a petitioner must show that his untimeliness was caused by an
external impediment and not by his own lack of diligence). The petitioner bears the
burden of bringing forward facts to establish a basis for equitable tolling. United States v.
Marolf, 173 F.3d 1213, 1318, n. 3 (9th Cir. 1999).
Ignorance of the law without more, is not grounds for equitable tolling. Rasberry
v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (a petitioner’s “inability correctly to
calculate the limitations period” and “lack of legal sophistication” are not “extraordinary
circumstance[s] warranting equitable tolling”)).
MEMORANDUM DECISION AND ORDER - 6
D. Actual Innocence
The United States Supreme Court has determined that there is an “actual
innocence” exception to the AEDPA statute of limitations, and that the exception applies
where a petitioner meets the rigorous actual innocence standard of Schlup v. Delo, 513
U.S. 298 (1995). McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013). “‘Actual innocence
means factual innocence, and not mere legal insufficiency.’” Marrero v. Ives, 682 F.3d
1190 (9th Cir. 2012) (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)).
To make a showing of actual innocence under Schlup, a petitioner must present
new evidence showing that “‘it is more likely than not that no reasonable juror would
have convicted [the petitioner].’” Perkins, 133 S.Ct. at 1933 (quoting Schlup, 513 U.S. at
329). This exception is to be applied only in the “extraordinary” or “extremely rare” case.
House v. Bell, 547 U.S. 518, 538 (2006); Schlup, 513 U.S. at 320-21.
Petitioner was convicted of three cocaine trafficking crimes and three associated
tax stamp crimes. In October 2001, the district court sentenced him to fourteen years with
seven years determinate on each of the trafficking counts, and two years with one year
determinate on each of the tax stamp counts. The district court ordered the sentences to
be served consecutively, for an aggregate unified sentence of 48 years, with 24 years
determinate. At the time of judgment, the district court gave Rios-Lopez a total of 253
days of credit for time served. (See State’s Lodgings A-1 through A-7.)
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Petitioner filed a direct appeal, raising claims of erroneously-admitted evidence,
prosecutorial misconduct, and excessive sentences. The Idaho Court of Appeals affirmed
the convictions and sentences on August 12, 2003. Petitioner filed a petition for review
before the Idaho Supreme Court. The petition was denied and a remittitur was issued on
October 17, 2003. (See State’s Lodgings B-1 through B-9.)
In the midst of the direct appeal, Petitioner filed a post-conviction action, which
was also unsuccessful. The Idaho Supreme Court denied Petitioner’s petition for review
on appeal of that case and issued its remittitur on December 23, 2005. (See State’s
Lodgings C-1 through D-9.)
He filed nothing further until 2007, when he filed a Rule 35 action challenging his
sentence. (State’s Lodging G-1, pp. 839-41.) In 2010, he filed a successive postconviction action. That action was completed on April 7, 2012. (See State’s Lodgings E-1
Over one decade later, on March 4, 2016, Petitioner filed a Rule 35 motion to
correct his sentence, after he became aware that the Idaho Supreme Court had issued a
decision that pretrial detainees who are convicted and sentenced to consecutive terms on
different criminal counts must be given prejudgment incarceration credit on each of their
sentences. See State v. Owens, 343 P.3d 30 (Idaho 2015). (State’s Lodging G-1, pp. 84245.) Owens overruled prior precedent that was in place at the time of Petitioner’s
convictions, State v. Hoch, 630 P.2d 143 (1981). Owens also held that the new rule would
not be applied retroactively. 343 P.3d at 35.
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On January 27, 2017, the Idaho Court of Appeals affirmed denial of the Rule 35
motion on appeal. The Court held that the anti-retroactivity holding of Owens excluded
Petitioner’s case from application of the new rule. See State v. Rios-Lopez, Case No.
44212, Op. 337 (Idaho Ct. App. Jan. 27. 2017 (unpublished). Petitioner’s petition for
review before the Idaho Supreme Court was denied. (See State’s Lodgings H-1 to H-9.)
All claims in the Petition arise from the state court’s decision to refrain from
retroactively applying the Owens rule in Petitioner’s case, which would provide him with
an additional sentence credit on all of his consecutive sentences for his prejudgment
incarceration. These claims were brought before the Idaho courts between 2013 and
2017, more than a decade after his criminal judgment was final.
The Court concludes that Petitioner’s federal Petition was filed beyond the oneyear federal statute of limitations period. 28 U.S.C. § 2244(d). There are several
provisions of the federal habeas corpus statute that permit a statute of limitations to start
on a date later than one year after finality of the direct appeal, such as when the United
States Supreme Court newly recognizes a constitutional right and makes its decision
retroactive on collateral review. See §2244(d)(1)(C). However, Petitioner’s prejudgment
incarceration credit claim based on the Idaho Supreme Court’s interpretation of a state
statute and its decision not to retroactively apply that decision does not implicate this
The Court agrees with Respondent’s statute of limitations analysis. Petitioner’s
judgment became final on January 15, 2004, ninety days after Petitioner’s petition for
MEMORANDUM DECISION AND ORDER - 9
review was denied by the Idaho Supreme Court (October 17, 2003). (See State’s Lodging
B-8.) However, before that period ended, Petitioner had already filed a state postconviction action. (See State’s Lodging C-1.) Therefore, the federal statute of limitations
was tolled through the post-conviction action and appeal until the Idaho Supreme Court
denied Petitioner’s petition for review and issued its remittitur on December 23, 2005.
(See State’s Lodgings D-8, D-9.)
Because the federal statute of limitations ran for more than one year after
December 23, 2005, without any state court action to toll it, it expired one year later.
Petitioner’s federal petition was filed on December 12, 2017 (mailbox rule date), more
than ten years too late. (Dkt. 3.)
None of Petitioner’s filings after the federal statute of limitations expired tolled or
resurrected it. In 2007, Petitioner filed a motion for credit for time served, and in 2010, he
filed a successive post-conviction petition that was unsuccessful. In 2015, the Idaho
Supreme Court issued the Owens decision. In 2016, Petitioner filed a motion to correct an
illegal sentence based on Owens. On appeal, the Idaho Supreme Court rejected
Petitioner’s argument. The opinion rejecting Petitioner’s claims was issued on November
29, 2017, and the remittitur was issued on December 21, 2017.
Based on the foregoing, the Court concludes that Petitioner’s Petition for Writ of
Habeas Corpus is untimely. Therefore, Respondent’s Motion for Summary Dismissal will
be conditionally granted. Petitioner will be given 60 days in which to file a response to
MEMORANDUM DECISION AND ORDER - 10
this Order showing that (1) his federal Petition was timely; or (2) that he is entitled to
equitable tolling based on detailed factual allegations set forth in an attached affidavit and
any exhibits; or (3) that he is actually innocent, based on detailed factual allegations set
forth in an attached affidavit and any exhibits, excusing his untimeliness.
The Court does not reach Respondent’s non-cognizability arguments as a result of
concluding that the Petition is not timely. Petitioner need not address these arguments in
1. Petitioner’s Motion for Appointment of Counsel (Dkt. 11) is DENIED.
2. Respondent’s Motion for Extension of Time to File Answer or Pre-Answer
Motion (Dkt. 15) is GRANTED.
3. Respondent’s Motion for Summary Dismissal (Dkt. 18) is CONDITIONALLY
GRANTED on statute of limitations grounds.
4. Petitioner shall have 60 days after entry of this Order in which to file a response to
this Order showing that (1) his federal Petition was timely; or (2) that he is entitled
to equitable tolling based on detailed factual allegations set forth in an attached
affidavit and any exhibits; or (3) that he is actually innocent, based on detailed
factual allegations set forth in an attached affidavit and any exhibits, excusing his
5. Petitioner’s last mailing from the Clerk of Court was returned as non-deliverable.
It appears from the IDOC website that Petitioner has been moved between
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facilities in Texas. Therefore, the Clerk of Court shall send Petitioner’s copy of the
Order to Mr. Rios-Lopez at the address shown on the IDOC website:
Eagle Pass Correctional Facility
P.O. Box 849
4010 South Bibb Ave.
Eagle Pass, TX 78853.
6. If this is not Petitioner’s correct address, he shall file a notice of change of address
with his response.
DATED: February 25, 2019
Honorable Candy W. Dale
United States Magistrate Judge
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