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Olson v. Smith

August 9, 2010


The opinion of the court was delivered by: Honorable Mikel H. Williams United States Magistrate Judge


Pending before the Court is Respondent's Motion for Summary Dismissal. (Dkt. 13.) Petitioner has filed an Objection to the Motion (Dkt. 14), and the Motion is now ripe for adjudication.

Both parties have consented to the jurisdiction of a United States Magistrate Judge to determine the matter. (Dkt. 6, 17 & 18.) See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. Having completed a careful review of the above-entitled action, including the record herein and the record of the state proceedings, and having considered the arguments of the parties, the Court enters the following Order granting the Motion for Summary Dismissal and dismissing the Petition for Writ of Habeas Corpus with prejudice.


Petitioner Lawrence J. Olson filed a Petition for Writ of Habeas Corpus on August 31, 2009, pursuant to 28 U.S.C. § 2241 or § 2255. In its Initial Review Order, the Court gave the parties notice that it would construe Petitioner's Petition under § 2254, given that Petitioner is challenging state custody and is held under a judgment on a state criminal conviction.

Petitioner pled guilty to and was convicted of a charge of driving under the influence of alcohol and a charge of being a persistent violator in the Fourth Judicial District Court in Ada County, Idaho, Case No. H 07-01042. (State's Lodging A-1. pp. 39-47.) He was sentenced to seven years fixed, with an indeterminate life term, to run concurrent with another sentence from Kootenai County criminal case no. CRFE-04-352. (Id., pp. 50-53.)

Petitioner filed a Rule 35 motion for reduction of sentence, which was denied. (Id., pp. 83-84; State's Lodging B-1.) He next filed a pro se notice of appeal, and was subsequently appointed counsel to represent him on appeal. (Sate's Lodging A-1, pp. 54-58 & 78.) On appeal, Petitioner raised two issues: (1) the trial court abused its discretion in sentencing; and (2) the trial court abused its discretion in denying the Rule 35 motion for reduction of sentence. (State's Lodging B-3, p. 3.) The Idaho Court of Appeals affirmed the sentence and denial of the Rule 35 motion. (State's Lodging B-6, State v. Olson, Docket No. 35049, 2008 Unpub. Op. No. 748 (Idaho Ct. App. Dec. 23, 2008). Petitioner filed a petition for review with the Idaho Supreme Court, which was denied, with the remittitur issuing on March 9, 2009. (State's Lodgings B-7 through B-10.)

In his federal Petition for Writ of Habeas Corpus, Petitioner's first claim is that he is "detained by virtue of an order obtained by violation of Article 1, § 9 Bill Attainder, Violation of Amendments Five and denial of jury findings required by Amendment Six, causing imprisonment illegal, contrary to law." (Petition, p. 2, Dkt. 3.) Petitioner's second claim is that he "reserves all rights that relate or found [sic] this application under the belief that such are best reserved due to not having access to legal reference materials in prison on par with those answering this application. This [i]nequality works a disparity which makes one party superior to the other a basic fairness, denial to equal access to the law." (Id., pp. 2-3.) Petitioner alleges that Idaho District Judge Michael R. McLaughlin had no judicial authority to enter orders and that the orders violate the Fifth and Sixth Amendments of the United States Constitution. The Court earlier construed Petitioner's claims as illegal detention claims based on a void order of conviction or commitment.


1. Standard of Law

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. When a court is considering a motion to dismiss, it may take judicial notice of facts outside the pleadings. Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1281 (9th Cir. 1986).*fn1 A court may look beyond the petition to matters of public record, and doing so does not convert a motion for summary dismissal into a motion for summary judgment. Id. Accordingly, the Court shall take judicial notice of those portions of the state court record lodged by the parties.

2. Discussion

A. Vague and Conclusory Claims

Respondent argues that Petitioner's claims are subject to dismissal because they are conclusory and fail to meet habeas corpus pleading requirements. The Court has construed Petitioner's claims in a liberal manner because he is acting pro se. Therefore, ...

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