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Bott-Graham v. Underwood

March 15, 2010

MICHELLE BOTT-GRAHAM PETITIONER,
v.
BRIAN UNDERWOOD, WARDEN, RESPONDENT.*FN1



The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge

MEMORANDUM ORDER

Currently pending before the Court in this habeas matter is Respondent's Motion for Summary Dismissal. (Docket No. 7.) The Court finds that the parties have adequately presented the facts and legal argument in their briefing, and this matter shall be resolved on the written record without oral argument. D. Idaho L. Civil R. 7.1(d). For the reasons that follow, the Court will grant Respondent's Motion, and this case shall be dismissed.

BACKGROUND

In March 2004, the State of Idaho charged Petitioner with the first degree murder based upon the death of a two-year-old child in her care. (State's Lodging A-1, pp. 71-72.) In exchange for the State's agreement to reduce the charges to voluntary manslaughter and felony injury to a child, Petitioner agreed to plead guilty. (State's Lodging A-1, pp. 188-91.)

After accepting her plea, the trial court sentenced her to ten years fixed for involuntary manslaughter and to a consecutive ten years, with one year fixed, for injury to a child. (State's Lodging A-1, pp. 202-05.)

Petitioner did not file a direct appeal, and her subsequent Idaho Criminal Rule 35 Motion for a reduction of her sentences was denied by the district court. (State's Lodging A-1, pp. 211-12.) On appeal from that decision, Petitioner argued that the lower court erred in imposing consecutive sentences, in violation of her right against double jeopardy, and that the court abused its discretion in not reducing her sentences. (State's Lodging B-1, pp. 3-7.) The Idaho Court of Appeals rejected the first argument on procedural grounds after finding that Petitioner was either attempting to appeal from the original judgment, which would be untimely, or was raising an "illegal sentence" claim for the first time on appeal. (State's Lodging B-4, pp. 1-3.) The Court of Appeals also affirmed the district court's denial of the Rule 35 Motion. (Id.) Petitioner did not file a petition for review in the Idaho Supreme Court.

Petitioner lodged the current Petition for Writ of Habeas Corpus in this Court on February 9, 2009, alleging that (1) she was deprived of her Sixth Amendment right to the effective assistance of trial counsel, (2) she was deprived of her Fourteenth Amendment right to effective counsel on direct appeal because her counsel refused to file a notice of appeal, and (3) she is being punished twice for the same offense, in violation of the Double Jeopardy Clause of the Fifth Amendment. (Docket No. 3, pp. 2-3.)

United States Magistrate Judge Larry M. Boyle conducted an initial review of the Petition and ordered Respondent to file an answer or an appropriate pre-answer motion to dismiss. (Docket No. 5.) Respondent has now done so by submitting the pending Motion for Summary Dismissal. The case was reassigned to the undersigned District Judge for resolution of the Motion because not all parties consented to the jurisdiction of a Magistrate Judge. (Docket No. 23.) Respondent has filed a Response to the Motion and a "Reply," and the Court is now ready to issue its ruling.

STANDARD OF LAW

A. Summary Dismissal Standard

Rule 4 of the Rules Governing Section 2254 Cases authorizes a federal court to summarily dismiss a petition for writ of habeas corpus when "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court."

When a court is considering a motion to dismiss, it may look beyond the pleadings to matters of public record, and doing so does not convert a motion for summary dismissal into a motion for summary judgment. See Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1281 (9th Cir. 1986), abrogated on other grounds by Astoria Federal Sav. and Loan Ass'n v. Solimino, 501 U.S. 104 (1991). Accordingly, the Court shall take judicial notice of those portions of the state court record lodged by Respondent.

B. Exhaustion and Procedural Default

Habeas relief is available to prisoners who are being held in custody pursuant to a state court judgment in violation of the Constitution, ...


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