Crawford v. Christensen

Filing 29

MEMORANDUM DECISION AND ORDER. This entire action will be dismissed with prejudice. The Court does not find its resolution of this habeas matter to be reasonably debatable, and a certificate of appealability will not issue. If Petitioner files a time ly notice of appeal, the Clerk of Court shall forward a copy of the notice of appeal, together with this Order, to the United States Court of Appeals for the Ninth Circuit. Petitioner may seek a certificate of appealability from the Ninth Circuit by filing a request in that court. 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 (alw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
LARRY A. CRAWFORD,
Petitioner,

Case No. 1:18-cv-00076-CWD
MEMORANDUM DECISION
AND ORDER

vs.
JAY CHRISTENSEN,
Respondent.

Petitioner Larry A. Crawford (Petitioner) filed a Petition for Writ of Habeas
Corpus challenging his state court conviction. (Dkt. 3.) Respondent Jay Christensen
(Respondent) filed a Motion for Summary Dismissal on procedural grounds. (Dkt. 12.)
Petitioner then filed a Motion to Amend the Petition with a proposed Amended Petition.
(Dkts. 15, 17.) These and several administrative motions are ripe for adjudication.
All named parties have consented to the jurisdiction of a United States Magistrate
Judge to enter final orders in this case. (Dkt. 6.) See 28 U.S.C. § 636(c) and Fed. R. Civ.
P. 73. The Court takes judicial notice of the record from Petitioner’s state court
proceedings, which has been lodged by the parties. See Fed. R. Evid. 201(b); Dawson v.
Mahoney, 451 F.3d 550, 551 (9th Cir. 2006). Having carefully reviewed the record,
including the state court record, the Court finds that the parties have adequately presented
the facts and legal arguments in the briefs and record and that oral argument is
unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following
MEMORANDUM DECISION AND ORDER - 1

Order dismissing the Petition for failure to satisfy the required statute of limitations
period.
PETITIONER’S MOTION TO AMEND PETITION
Petitioner brought only one claim in his original federal Petition—that he should
have been permitted to withdraw his guilty plea. (Dkt. 3.) In the Initial Review Order, the
Court recognized that such a claim could be either a federal or a state law claim, notified
Petitioner that he could proceed only if it was a federal claim, and invited clarification.
(Dkt. 7.)
On January 4, 2019, Respondent filed a Motion for Summary Dismissal, seeking
dismissal of all of Petitioner’s claims. In response, Petitioner filed a Motion to Amend, a
proposed Amended Petition, and two supporting briefs. (Dkts. 15, 16, 19, 26.)
Petitioner does not contest Respondent’s assertion that the original Petition was
untimely. Instead, he argues the merits of his claims and sets forth an actual innocence
argument to excuse the untimely filing. The Court will grant the Motion to Amend, but,
to Petitioner’s benefit, the earlier filing date of the original Petition will govern. As
explained below, both the original Petition and the Amended Petition—regardless of the
different claims asserted in each—are subject to Respondent’s statute of limitations
defense.

MEMORANDUM DECISION AND ORDER - 2

RESPONDENT’S MOTION FOR SUMMARY DISMISSAL
1. Habeas Corpus Review Standard of Law
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.
1989).
2. Statute of Limitations Standard of Law
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)(A), provides a
means of calculating the limitations start date for the “application” as a whole (date of
final judgment). The remaining three triggers require claim-by-claim consideration, §
2244(d)(1)(B) (governmental interference); § 2244(d)(1)(C) (new 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)).

MEMORANDUM DECISION AND ORDER - 3

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.
Action Taken
No appeal is filed after state district court order or judgment

Finality Occurs
42 days later, see
Idaho Appellate
Rule 14

Appeal is filed and Idaho Court of Appeals issues a
decision, but no petition for review is filed with the Idaho
Supreme Court

21 days later, see
Idaho Appellate
Rule 118

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
United States
Supreme Court
Rule 13

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
granted, and the United States Supreme Court issues a
decision

Date of decision

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,

MEMORANDUM DECISION AND ORDER - 4

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.
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”).

1

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

3. Equitable Tolling Standard of Law
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”)).
4. Actual Innocence Standard of Law
The Supreme Court of the United States 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, 569 U.S. 383 (2013). “‘Actual innocence means

MEMORANDUM DECISION AND ORDER - 6

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, 569 U.S. at 400 (quoting Schlup, 513 U.S. at
327). 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.
5. Background
In a criminal action in Twin Falls County, Idaho, Petitioner pleaded guilty to and
was convicted of one count of lewd and lascivious conduct with a minor under the age of
sixteen.2 Three other related charges were dismissed under Petitioner’s plea agreement
with the State of Idaho. Thereafter, Petitioner filed a motion to withdraw his guilty plea
and two motions to correct an illegal or excessive sentence. All were denied. (State’s
Lodging A-1.)
Petitioner filed a direct appeal to challenge denial of his post-trial motions. The
appeal was heard by the Idaho Court of Appeals. After the state district court rulings were
affirmed, the Idaho Supreme Court denied a petition for review. The direct appeal
concluded on January 19, 2010. (State’s Lodgings B-1 to B-11.)
While the direct appeal was pending, Petitioner filed a third motion for reduction
of sentence. (State’s Lodging A-2, pp. 29-37.) The state district court did not rule on the

2

Throughout this Order, the names of the minor victim and a witness have been replaced with their
initials.

MEMORANDUM DECISION AND ORDER - 7

motion immediately, and neither party followed up with the court for resolution of the
motion. The motion languished for several years.
While the direct appeal was pending, Petitioner also filed a petition for postconviction relief in the state district court. (State’s Lodging C-1.) The petition was
summarily dismissed. (Id.) Petitioner was appointed counsel for his appeal, but counsel
could find no arguable issues to appeal. Therefore, counsel was permitted to withdraw,
and Petitioner was ordered to file a brief pro se if he intended to continue to pursue the
appeal. Petitioner did not file a brief; therefore, the Idaho Supreme Court dismissed the
appeal on August 27, 2010. (State’s Lodgings D-1 to D-7.)
No state court action—other than the third sentencing motion—was pending
between August 2010 and August 2015, when Petitioner filed a fourth sentencing motion.
When the state district court denied that motion, it acknowledged that the third sentencing
motion was still pending. The court denied both motions in the same order. Petitioner
appealed denial of his fourth motion. The Idaho Court of Appeals affirmed denial. The
Idaho Supreme Court denied a petition for review on April 5, 2016. (State’s Lodgings E1 to F-7.) No other state court action related to the conviction and sentence was filed after
that date.
Petitioner’s current federal Petition for Writ of Habeas Corpus was filed on
February 13, 2018.
6. Discussion
Petitioner’s judgment became final on April 19, 2010, ninety days after the Idaho
Supreme Court denied his petition for review on direct appeal. Because Petitioner filed
MEMORANDUM DECISION AND ORDER - 8

several other actions challenging the same conviction and sentence, the federal statute of
limitations was tolled from that date until April 5, 2016. The pertinent time period when
Petitioner did not have any state court action pending was after the appeal from his fourth
motion for a reduction of sentence between April 5, 2016, and February 13, 2018, when
he placed his Petition into prison officials’ hands for transmission to the federal court for
filing.3 Petitioner had 366 days after April 5, 2016, in which to file a federal Petition. The
date of April 5, 2017 was the expiration of the federal statute of limitations. Petitioner’s
filing on February 13, 2018 was almost one year too late.
As a result, Petitioner must show grounds for an application of either the equitable
tolling or the actual innocence exception to overcome his late filing. Without such a
showing, this Court cannot adjudicate the merits of his claims.
Petitioner’s briefing in support of his Amended Petition contains an argument that
he is actually innocent. (Dkt. 1, 19, 27.) The Court has reviewed the entire record to
determine whether Petitioner has met the standard for a showing of actual innocence.
Petitioner’s Affidavit, in part, tells his version of events underlying the crime
(verbatim):
In November of 2006 I moved into the residence of
one Darlene Rachelle Nicholas and her then 10 year
old daughter B.A.N. Darlene was not only a long
time friend of the family, since the mid 1970’s, but
also my former fiancé.

3

See Houston v. Lack, 487 U.S. 266 (1988) (a legal document is deemed filed on the date a prisoner
delivers it to the prison authorities for filing by mail, rather than the date it is actually filed with the clerk
of court).
MEMORANDUM DECISION AND ORDER - 9

Soon after I moved in, it became apparent that B.A.N.
had some major boundry issues. The first night I was
there her mother spent the night with a male
neighbor. When I went to take a shower, B.A.N.
came into the bathroom and hid my clothes just so
she could watch me emerge from the shower.
B.A.N. was constantly touching and grabbing me in
inappropriate places such as my groin and/or
buttocks. When I tried to explain to her why such
behavior wasn’t appropriate, she told me that she had
been molested at the age of 5 years old by one of
Darlene’s former boy friends in Las Vegas.
Things quieted down for about a week. Then B.A.N.
started to expose herself to me. One time she came
out of the bathroom completely naked to answer the
phone. When I told Darlene about it, she said B.A.N.
had been that way all her life and there wasn’t
anything she could do about it. Once when I was in
the shower B.A.N. came in and tried to watch me.
Darlene caught her and told her to leave.
Then things got worse. I started to work the
graveyard shift for Transystems. During one of my
nights off I woke up to B.A.N. fondling my penis. I
made her stop and told her to leave. I immediately
went to tell her mother, Darlene. Darlene looked
furious. Having prior knowledge of Darlene’s volatile
nature and willingness to be physical with B.A.N.,
told her that I would speak to B.A.N. about her
actions. My sister and I both, on seperate occasions,
spoke to B.A.N. about her action and she assured us
that it would never happen again.
There was another incident that happened
approximately a week after the one mentioned above.
I had taken a sleep aid called Valarium Root so that I
could sleep during the day because I had to work the
graveyard that night. I woke up to B.A.N. on top of
me. She was trying to insert my penis into her vagina.
I pushed her off of me. I was so angry that I told her I
was going to move out the next time I got paid. I also
MEMORANDUM DECISION AND ORDER - 10

told her that I going to tell her mother why and that I
didn’t care what her mother did about it, or what her
mother did to her.
(Dkt. 27, pp. 14-18.)
Petitioner alleges that B.A.N. was angry with him for disclosing her sexual
advances to her mother or for otherwise not supporting her in family disputes. In
retaliation, she fabricated elaborate stories of him tying her up and raping her, causing
visible injury to her wrists; of having sexual intercourse with her over 20 times; and of
engaging in other sexual activities together, such as watching and imitating pornographic
movies and looking at pornographic magazines. An investigation ensued, and Petitioner
was charged with four counts of lewd and lascivious conduct with a minor under sixteen,
and one count of kidnaping. (State’s Lodgings A-1, A-6, p. 16.)
With his briefing, Petitioner attaches a letter from his sister, which rejects a
request from Petitioner that his sister provide an affidavit based on his, not her,
recollection of events (verbatim):
Larry I don’t think you are rembering it the
way I remember it.
I wasn’t the one who caught her with the wrong
shoes, as far as the kitchen, I don’t remember that
at all!
I was not the one who checked your bed! It was
you and Darlene who you took in to prove that?!
I went in your room to remove your things after
you had packed them.
Larry I just can’t write the stuff you want me to
and risk cometting purgery. It’s a Federal crime,
MEMORANDUM DECISION AND ORDER - 11

FELONY. And seeing how I have already been on
probation for something related to your case I
would go to prison if they find out I am lying. I’m
not good at it so they would find out one way or
another.
As far as your plea, man I don’t want to crush
your hopes, but they did give you a chance to
recant. I WAS there, right after the P.D. took your
case.
After your letter in Jan of 2010 and in it you
confessing that you [illegible] had done something
to “take 50% of the blame” per your words I can’t
and won’t help you by lying and stretching the
truth.
Larry only you and B.A.N. know what really
happened, I don’t, not any more.
Up until I received your letter in 1/2010 I
would have gone to my grave professing your
innocence. After the letter and what you told me
about throwing her on the bed and acting like “you
were going to teach her a lesson” I do not know any
more about your innocence.
I’m having enough to deal with in my life to
write a leagle paper, that I know is not how I
remember it, and be in constant worry about being
caught. I just can’t.
***
Let me say this “I love you as my brother,” but
with that said “I do want you out” but not at the
chance I might go to jail for lying for you.
Hoping you REALLY understand this.
All my Love,
Rhoni
MEMORANDUM DECISION AND ORDER - 12

(Dkt. 27, pp. 26-30.)

At sentencing, the judge cited four specific instances in the record where
Petitioner admitted that he had genital-to-genital contact with the victim:
 On “Friday, March 16th, 2007, after being sworn in in a
CPOR hearing, Crawford admitted to having a sexual
relationship with B.A.N.; only it was at her instigation,
according to him.” Judge Harris then advised him he
should not talk about it any more. (State’s Lodging A-6, p.
46.)
 On July 16, 23 2007, Petitioner admitted in his plea
hearing that he had genital-to-genital contact with the
victim on December 24, 2006—“I did do it, okay?” (Id.,
pp. 46-48.)
 Psychosexual evaluator Tom Nielsen stated in his report
that “the defendant flat-out admits that he had sexual
intercourse with a child” and that “he lied about his
behavior because he didn’t want people to know that he
was having sex with a 12-year-old.” (Id., pp. 18, 48-49.)
(Petitioner denies he made this statement.)
 The polygrapher, Mr. Morgan, indicated “During the pretest interview, Larry Crawford made admissions of
inappropriate sexual contact with 12-year-old B.A.N. (Id.,
p. 49.)
In his allocution, Petitioner explained this by saying, “I’m not denying the contact.
What I’m denying is her story.” (State’s Lodging A-6, p. 39.) In other words, Petitioner
blames the victim for sexually assaulting him, not vice versa.
The record, no doubt, reflects that the victim likely had “poor interpersonal and
behavioral boundaries,” as the sentencing court acknowledged. (Id., p. 55.) For example,

MEMORANDUM DECISION AND ORDER - 13

B.A.N. engaged in experimental sex with Petitioner’s grandniece, J.B., documented by
this passage B.A.N. wrote in J.B.’s diary (verbatim):
6 06
Dear Dairy,
When ever I came over to J.B.’s house I remember that we
were exparementing with each other a lot at some times of the
day we had sex. Keep this page forever. Thank you.
(Dkt. 19-1, p. 3.)
However, even crediting Petitioner’s assertion that B.A.N. was the instigator of
the sexual contact with him, Petitioner admits he did not immediately remove himself
from the situation after several sexual encounters, but continued to have sexual contact
with the child at her request. The sentencing court echoed the psychosexual evaluator’s
opinion:
Many children in our society grow up in less-thanperfect homes with less-than-adequate parental supervision
and develop poor social boundaries. This fact, however, does
not justify a 45-year-old male with above-average intelligence
to engage in sexual contact with one.
(State’s Lodging A-6, p. 55.)
The Court has considered Petitioner’s various arguments in support of his
assertion of actual innocence, but the record does not support such an assertion.
Petitioner’s own Affidavit with exhibits and his other admissions of lewd conduct with
the victim fail to show that it is more likely than not that no reasonable juror would have
convicted him.

MEMORANDUM DECISION AND ORDER - 14

7. Conclusion
Because the original Petition for Writ of Habeas Corpus was filed too late and no
exception applies to permit the Court to hear the merits of his claims, this entire action
will be dismissed with prejudice.
ORDER
IT IS ORDERED:
1. Respondent’s Motion for Extension of Time to File Answer (Dkt. 10) is
GRANTED. The Motion for Summary Dismissal filed at Docket 12 is considered
timely.
2. Respondent’s Motion for Leave to File Excess Pages (Dkt. 11) is GRANTED.
3. Respondent’s Motion for Summary Dismissal (Dkt. 12) is GRANTED on statute
of limitations grounds.
4. Petitioner’s Motion to File Amended Petition (Dkt. 15) is GRANTED, to the
extent set forth herein above.
5. This entire action is DISMISSED with prejudice.
6. Petitioner’s Amended Application to Proceed in Forma Pauperis (Dkt. 17) is
MOOT. Petitioner already is proceeding in forma pauperis.
7. Petitioner’s Motion to File Oversize Brief (Dkt. 20) is GRANTED.
8. Petitioner’s Motion for Extension of Time to File Amended Federal Petition (Dkt.
21) is GRANTED, to the extent that the subject of the Motion is the Amended
Petition filed at Docket No. 16; however, this “timely” filing does not affect the
statute of limitations analysis.
MEMORANDUM DECISION AND ORDER - 15

9. Petitioner’s Motion to File Attachment to Brief in Support of Amended Federal
Habeas Corpus Petition (Dkt. 26) is GRANTED, permitting the briefing at Docket
No. 27 to be considered.
10. The Court does not find its resolution of this habeas matter to be reasonably
debatable, and a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c); Rule 11 of the Rules Governing Section 2254 Cases. If Petitioner files a
timely notice of appeal, the Clerk of Court shall forward a copy of the notice of
appeal, together with this Order, to the United States Court of Appeals for the
Ninth Circuit. Petitioner may seek a certificate of appealability from the Ninth
Circuit by filing a request in that court.

DATED: September 26, 2019
_________________________
Honorable Candy W. Dale
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER - 16