The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court in this habeas corpus case is Respondent's Motion for Summary Dismissal. (Dkt. 10.) Petitioner has filed a Response and has been sent the "Notice to Pro Se Litigants of the Summary Judgment Rule Requirements." (Dkt. 13.) Petitioner has also filed a Motion to Grant Writ of Habeas Corpus. (Dkt. 17.) The motions pending before the Court are now fully briefed.
Having reviewed the record and state court record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and 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.
RESPONDENT'S MOTION FOR SUMMARY DISMISSAL
Rule 4 of the Rules Governing § 2254 Cases authorizes the 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." In such case, the Court construes the facts in a light most favorable to the petitioner. Summary dismissal is appropriate where it is evident from the petition that the claims have been procedurally defaulted and where dismissal would further the interests of comity, federalism, and judicial efficiency. Boyd v. Thompson, 147 F.3d 1124 (9th Cir. 1998). Summary dismissal of a habeas petition on statute of limitations grounds is permissible so long as the court provides the petitioner adequate notice of its intent to dismiss and an opportunity to respond. Herbst v. Cook, 260 F.3d 1039, 1042 (9th Cir. 2001) (sua sponte dismissal).
The Anti-Terrorism and Effective Death Penalty Act (AEDPA), enacted April 24, 1996, established a one-year statute of limitations for federal habeas corpus actions. See 28 U.S.C. § 2244(d)(1). Because Petitioner's federal habeas corpus petition was filed after AEDPA's enactment date, it is subject to the one-year statute of limitations.
To calculate the statute of limitations deadline, a petitioner must determine when the state court judgment became final. The federal petition is due within one year of "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).
AEDPA also contains a tolling provision that stops the one-year limitation period from running during the time in "which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). The Ninth Circuit has interpreted 28 U.S.C. § 2244(d)(2) to mean that the one-year statute of limitation is tolled for "all of the time during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies with regard to a particular post-conviction application." Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) (citation and internal quotation marks omitted).
A. Entry of Judgment and Direct Appeal
Petitioner Linda E. Schwartz (Petitioner) pled guilty to and was convicted of second degree murder in criminal proceedings in the Sixth Judicial District Court in Oneida County, Idaho. She was sentenced to fifteen years fixed with life indeterminate. Her judgment of conviction was entered on August 31, 2001. (State's Lodging A-1, pp. 87-90.) She filed a Rule 35 motion for reduction of sentence, which was denied. (State's Lodging B-1.)
Petitioner filed an appeal challenging the reasonableness of her sentence and denial of the Rule 35 motion for reduction of sentence. (State's Lodging A-1, pp. 92-93.) The Idaho Court of Appeals heard the direct appeal and affirmed the sentence and denial of the Rule 35 motion on August 15, 2002. (State's Lodging B-5.) Petitioner filed a petition for rehearing through counsel. The petition was dismissed for failure to file a supporting brief. (State's Lodgings B-6 & B-7.) The Court of Appeals issued its remittitur on December 30, 2002. (State's Lodging B-8.) Petitioner did not file a petition for review with the Idaho Supreme Court.
B. Post-Conviction Actions
On September 2, 2003, within the one-year time period for filing a state post-conviction action, Petitioner wrote to the state district court seeking appointment of counsel to help prepare a post-conviction application. Counsel was appointed for Petitioner, and met with her in November 2003, but he failed to file a post-conviction application in time. He later filed a motion to extend the time period to file a post-conviction application on the grounds that he had wrongly assumed that a post-conviction application had been filed prior to his appointment. On May 5, ...