The opinion of the court was delivered by: Edward J. Lodge U. S. District Judge Honorable
MEMORANDUM DECISION AND ORDER
Pending before the Court in this federal habeas corpus action is Respondent's Motion for Summary Dismissal. (Dkt. 9.) The Court earlier granted Petitioner an extension of time to file a response, but no response has been filed within the time permitted. (Dkt. 12 & 13.) Therefore, the Court will now consider the Motion for Summary Judgment on the briefing submitted and an independent review of the state court record.
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.
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).
Where, as here, a petitioner's conviction became final before the effective date of AEDPA, his federal petition must be filed by April 24, 1997, one year from the effective date of AEDPA. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).
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).
Petitioner was convicted of three felonies and two misdemeanors, and was also found to be a persistent violator, in the Fourth Judicial District Court in Ada County, Idaho. Judgment was entered on January 4, 1989. Petitioner subsequently filed a Rule 35 motion to correct an illegal sentence, which was denied by the state district court. (State's Lodging A-1.)
Petitioner filed a direct appeal on January 5, 1989. His convictions and sentences were affirmed in 1991. (Id., pp. 4-5.) On May 16, 1991, Petitioner's convictions and sentences became final when the appellate court issued its remittitur after appeal. (Id., p. 5.)
Petitioner apparently sent a copy of a second Rule 35 motion to the county attorney in 2006, but did not file the motion with the court. The county attorney filed a motion to dismiss on December 18, 2006, but the state district issued an order noting that since no Rule 35 motion was filed, then no order on the motion to dismiss was necessary. (Id., pp. 25-28.)
Petitioner actually filed a second Rule 35 motion on January 4, 2007. The motion was denied by the state district court on January 8, 2007. (Id., pp. 30-42.) Petitioner pursued an appeal that was heard by the Idaho Court of Appeals. The district court's order was affirmed in an original opinion and a subsequent substitute opinion issued by the Court of Appeals. Petitioner then filed a petition for review before the Idaho Supreme Court. ...