The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court are Respondents' Motion for Summary Dismissal and several Motions filed by Petitioner, including a Motion for Summary Judgment. (Docket Nos. 9, 10, 13 & 16.) Petitioner has been provided with the "Notice to Pro Se Litigants of the Summary Judgment Rule Requirements," which explains the summary judgment and summary dismissal standards. (Docket No. 11.) Petitioner has failed to file a response to the Motion for Summary Dismissal in the nine months that it has been pending; however, the Court considers Petitioner's subsequently-filed Motion for Summary Judgment as his argument that Respondents' Motion for Summary Dismissal should not be granted. Accordingly, the Court shall determine the pending motions on the record before it.
Having fully reviewed the record, including the state court record lodged by the parties, the Court finds that the decisional process would not be significantly aided by oral argument. Therefore, the Court shall decide this matter on the written motions, briefs and record without oral argument. D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order.
Petitioner stole a car in Nampa, drove it to McCall, and then temporarily abandoned it in Eagle, all in approximately one week's time. (State's Lodging B-2, p. 1.) Temporary abandonment of the vehicle in Eagle was prompted by Petitioner's realization that officers were following him, whereupon he abandoned the car in Eagle and tried to escape on foot. He entered a residence, and once inside, he started rummaging about the residence, unaware that a woman inside was hiding from him, fearful for her life. He later returned to the abandoned car, attempted to elude officers, and severely damaged the car by driving it into a gravel pit. Officers apprehended him shortly thereafter.
Criminal charges were filed against Petitioner in the Fourth Judicial District Court in Ada County, Idaho. He pled guilty to burglary and grand theft charges to avoid a persistent violator charge. (See State's Lodging B-1, pp. 1-2 & B-2, p. 2.)
At sentencing, the district court found that "the possibility of rehabilitation in a 53-year-old defendant with a history well over 30 years of criminal conduct is not very probable." (Tr. 2/20/03, p. 50-51 & State's Lodging B-2, p. 4.) Petitioner was sentenced to a ten-year unified term with nine years fixed for the burglary conviction, and a fourteen-year term with eight years fixed on the grand theft conviction, with the sentences to run consecutively. Judgment was entered on February 20, 2003. (State's Lodging A-2, pp. 61-64.)
After conviction, Petitioner pursued a direct appeal, challenging only his sentences. The Idaho Court of Appeals affirmed the sentences in an unpublished opinion on January 2, 2004. (State's Lodgings B-1 through B-5.) Petitioner filed a petition for review before the Idaho Supreme Court, and it was denied, with the remittitur issuing on April 1, 2004 (State's Lodgings B-6 through B-9.)
Petitioner next filed a pro se post-conviction petition, alleging ineffective assistance of counsel and improper imposition of sentences. He also filed a request for appointment of counsel, which was denied. Petitioner filed a second motion for appointment of counsel that the state court never addressed. Petitioner's sentencing claim was summarily dismissed, and Petitioner was permitted to proceed on the ineffective assistance of counsel claim. (State's Lodging C-1.)
In the post-conviction action (rather than in the original criminal action), Petitioner filed a motion to withdraw his guilty plea on the basis of ineffective assistance of counsel. (State's Lodging C-1, p. 44.) The district court denied the motion, concluding it was "inappropriate, as no determination has been made concerning the merits of the petitioner's ineffective assistance of counsel contentions." (Id., p. 100.) Petitioner filed a notice of appeal and requested appointment of counsel for the appeal. The district court denied the request for appointment of counsel, finding the appeal frivolous. (Id., pp. 116-17.) Petitioner's motion to proceed in forma pauperis was denied, because the Court found that the appeal was an inappropriate interlocutory appeal, filed before completion of the entire post-conviction matter. (Id., p. 130.) The appellate court dismissed the appeal because Petitioner failed to pay the transcript preparation fee.
In the post-conviction action, Petitioner moved for an evidentiary hearing on the ineffective assistance of counsel claim, and sought counsel for the third time. The district court granted the motion for appointment of counsel. Through counsel, Petitioner filed an amended post-conviction petition, raising claims of ineffective assistance of counsel. However, after Petitioner was transferred to a prison facility in Minnesota, the parties agreed to submit the case to the court on the record rather than hold an evidentiary hearing. The district court denied the petition for post-conviction relief, finding that Petitioner failed to show deficient performance of counsel and failed to provide evidence to support his conclusory allegations. (State's Lodging C-2.)
Petitioner filed an appeal of denial of his post-conviction petition, consisting of two claims: (1) that the trial court erred in not appointing post-conviction counsel for him before it dismissed his motion to withdraw his guilty plea; and (2) that trial counsel was ineffective. The Idaho Court of Appeals affirmed denial of the post-conviction petition, holding that (1) although the trial court erred in not appointing counsel, Petitioner failed to show prejudice, because counsel had been permitted to file an amended petition without any limitations; and (2) Petitioner failed to show ineffective assistance of trial counsel. (State's Lodging E-2.)
Petitioner subsequently filed a petition for review before the Idaho Supreme Court, challenging only the Idaho Court of Appeals' decision that Petitioner failed to show prejudice in the trial court's failure to appoint post-conviction counsel. (State's Lodgings E-6 & E-7.) The Idaho Supreme Court denied the petition for review (State's Lodging E-8.)
RESPONDENTS' MOTION FOR SUMMARY ...