The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge
MEMORANDUM DECISION AND ORDER
Currently pending in this habeas corpus matter is Respondent's Motion for Summary Dismissal. (Dkt. 17.) The parties have consented to a United States Magistrate Judge conducting all proceedings, including entering final judgment, in accordance with 28 U.S.C. § 636(c). (Dkt. 12.)
The parties have adequately stated the facts and the law in their briefing, and the Court will resolve the pending Motion on the parties' briefing and the written record without oral argument. D. Idaho L. Civ. R. 7.1(d)(1). For the reasons that follow, the Court finds the Petition to be untimely, and Respondent's Motion will be granted.
After a jury trial in 1982, Petitioner was convicted of one count of murder in the first degree for shooting Scott Gold to death outside a bar in Stites, Idaho, and the state court sentenced him to fixed life in prison. (State' Lodging A-1, pp. 112-14.) Petitioner appealed his conviction and sentence, but the Idaho Court of Appeals affirmed. (State's Lodging B-4.) He did not seek review in the Idaho Supreme Court, and the remittitur was issued on December 24, 1984. (State's Lodging B-5.) Petitioner next pursued post-conviction relief, alleging ineffective assistance of trial counsel and other claims, but all relief was denied. (State's Lodgings G-5, G-7, G-8.) Petitioner completed his initial round of post-conviction proceedings in 1990. (State's Lodging G-8.)
Petitioner had nothing pending in any court for the next fourteen years, until he filed a "Motion for Rule 35 Relief from an Illegal Sentence" on December 2, 2004. (State's Lodging H-1.) In that motion, Petitioner alleged for the first time in court that Scott Gold was of Native American descent and that the offense occurred on the Nez Perce Indian Reservation, which Petitioner contended meant that "the subject matter of the homicide in question is and at all times has been solely within the exclusive federal authority." (State's Lodging H-1, p. 2.) According to Petitioner, the state court lacked jurisdiction to convict him of murder, and his sentence for that crime was therefore "illegal." (State's Lodging H-2, p. 11.)
The state district court summarily dismissed the motion as untimely. (State's Lodging H-3.) Rather than appeal from that order, Petitioner filed a "Motion to Reconsider For [sic] I.R.C.P. 60(b) Relief." (State's Lodging M-2, p. 28.) Before the court ruled on the request for reconsideration, Petitioner filed a new petition for post-conviction relief, his third, on February 11, 2005.*fn1 (State's Lodging I-1.) In this latest pleading, Petitioner alleged that his trial counsel was ineffective for not pressing the jurisdictional issue during the original criminal proceedings in the 1980s. (State's Lodging I-1, pp. 1-6.) Petitioner also raised the substantive jurisdictional issue again in other simultaneous filings, which the court ordered to be docketed as part of the post-conviction matter. (State's Lodging J-12, Appendix G.)
The district court issued a preliminary decision indicating that Petitioner's jurisdictional argument may have merit, but because "[s]etting aside a conviction for first-degree murder is serious business and should not be undertaken lightly," it ordered the State and the Nez Perce tribe to file briefs addressing the issue. (State's Lodging I-2, pp. 5-6.) The court also appointed counsel for Petitioner. (State's Lodging J-12, Appendix A, p. 2.) The Nez Perce tribe did not respond to the court's order, but the State objected on numerous grounds. (State's Lodgings I-3, I-7, I-8.)
To that point, Petitioner had offered no proof to support his claim that Gold was a member of an Indian tribe, but documents were eventually discovered in June 2006 apparently showing that Gold was an enrolled member of Blackfeet Indian Nation in Montana and that Stites, Idaho, sits within the boundary of the Nez Perce Indian Reservation. (State's Lodging I-16, Exhibit C.) After considering the parties' briefing and hearing oral argument, however, the district court found the third post-conviction petition to be untimely under Idaho Code § 19-4902. (State's Lodging I-20, pp. 19-20.) The court further concluded that if it construed the pleading as a petition for a writ of habeas corpus, it would lack jurisdiction because a habeas petition must be filed in the county in which the petitioner is held. (State's Lodging I-20, p. 20.) On January 4, 2007, the court entered an order of dismissal, (State's Lodging J-12, pp. 6-7), and Petitioner did not appeal.
Three months later, on April 11, 2007, Petitioner filed a petition for writ of habeas corpus in Ada County, again raising the jurisdictional argument, which was dismissed on procedural grounds on December 2, 2008. (State's Lodging J-1, J-2, J-3; State's Lodging J-13, pp. 3-7.) Petitioner submitted an untimely notice of appeal, and the Idaho Supreme Court dismissed the appeal. (State's Lodging K-5.) Petitioner next filed a "Petition for Writ of Certiorari/Writ of Review" in the Idaho Supreme Court, raising essentially the same argument, which was denied on June 8, 2009. (State's Lodging L-1, L-2.)
On October 21, 2009, Petitioner initiated these federal habeas proceedings, alleging that (1) he has been deprived of his right to due process of law under the Fourteenth Amendment because "the trial court lacked jurisdiction in which to try, convict and sentence the Petitioner for an alleged murder occurring on Indian lands," and (2) his right to due process was violated when the state court "failed to decide the jurisdiction issue on the merits of the claim." (Dkt. 1, pp. 10-13.) This Court appointed counsel to assist Petitioner, and it ordered the Petition to be served on Respondent. (Dkt. 5, p. 4.)
Respondent responded to the Petition by filing the pending Motion for Summary Dismissal, in which Respondent contends that the applicable statute of limitations expired long before the Petitioner came to federal court. (Dkt. 17-1, pp. 12-16.) Respondent also argues that Petitioner has not fairly presented the same constitutional claims to the Idaho Supreme Court in a procedurally proper manner, and his claims must be dismissed as procedurally defaulted. (Dkt. 17-1, pp. 16-23.) Petitioner has filed a response (Dkt. 29), to which Respondent has replied (Dkt. 33), and the Motion is now at issue.
Because the Court concludes that the Petition is untimely, it will not reach Respondent's procedural default argument.
Habeas petitions filed after the enactment of the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA) are subject to a one-year statute of limitations. 28 U.S.C. § 2244(d). The one-year period begins to run from the date of one of four triggering events, as specified in 28 U.S.C. § 2244(d)(1)(A)-(D). The most common event is the date upon which the judgment became final in state court, either after the direct appeal has concluded or after the time for seeking an appeal expired. 28 U.S.C. § 2244(d)(1)(A). When a petitioner's state court judgment became final before AEDPA was enacted, as here, the petitioner generally had a one-year grace period, until April 24, 1997, in which to file his federal petition. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).
However, additional statutory subsections provide for a later starting date when any of the following situations are present: (1) the State has unlawfully created an impediment to filing a federal petition, 28 U.S.C. § 2244(d)(1)(B); (2) the United States Supreme Court has determined that a new constitutional right is retroactive, 28 U.S.C. 2244(d)(1)(C); or (3) the petitioner has discovered new evidence that could not have been obtained previously through the exercise of reasonable diligence, 28 U.S.C. § 2244(d)(1)(D).
To encourage the proper exhaustion of state court remedies, the statute of limitations is tolled or suspended for all of "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is ...