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Jerry Vavold v. Randy Blades

June 14, 2011

JERRY VAVOLD, PETITIONER,
v.
RANDY BLADES, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER

Pending before the Court in this habeas corpus matter are Petitioner's Motion for Appointment of Counsel (Dkt. 12) and Respondent's Motion for Summary Dismissal on statute of limitations and procedural default grounds (Dkt. 6). Both parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 9.) See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. Having reviewed the parties' arguments and the record in this matter, the Court enters the following Order.

BACKGROUND

In November 1999, Petitioner pleaded guilty to and was convicted of lewd conduct with a minor, a violation of Idaho Code § 18-1508, in the Second Judicial District Court in Nez Perce County, Idaho. (State's Lodging A-1, pp. 27-29.) Petitioner received a sentence of five years fixed with fifteen years indeterminate. The judgment of conviction was entered on November 17, 1999. (Id., pp. 28-29.)

After conviction, Petitioner filed a direct appeal. The conviction and sentence were affirmed on appeal by the Idaho Court of Appeals, and the Idaho Supreme Court denied the petition for review on December 11, 2000. The remittitur was entered the same day. (State's Lodgings B-1 to B-8.)

After his direct appeal concluded, Petitioner had nothing pending in state court until he filed an application for post-conviction relief on November 26, 2007. (State's Lodging C-1, pp. 3-7.) Petitioner relied on Estrada v. State, 149 P.3d 833 (Idaho 2006), where the Idaho Supreme Court determined that the Sixth Amendment guaranteed the right to the assistance of counsel for advice regarding participation in a psychosexual evaluation for purposes of sentencing. Id. at 838.*fn1

Petitioner's post-conviction application was dismissed as untimely by the state district court. (State's Lodging C-1, pp. 35-48.) On appeal, the Idaho Supreme Court affirmed the state district court's decision in an opinion issued on August 21, 2009, and the remittitur was issued on October 22, 2009. (State's Lodgings D-1 through D-7; Vavold v. State, 218 P.3d 388 (Idaho 2009).) In its opinion, the Idaho Supreme Court agreed with the state district court that Petitioner's post-conviction application was untimely, because it should have been filed within one year of the finality of direct appeal, in 2001, rather than in 2007, shortly after Estrada was issued. The Idaho Supreme Court also stated, "we note, admittedly by way of dicta, that we agree with the district court's conclusion that Estrada did not announce a new rule of law." Vavold, 218 P.3d at 390. That dicta became precedent in Kriebel v. State, 219 P.23 1204, 1207 (Idaho Ct. App. 2009), where it was determined that Estrada did not announce a new, retroactively-applicable rule.

Shortly after the Idaho Supreme Court's decision in his own case, Petitioner filed this federal habeas corpus action, on November 4, 2009. Respondent argues that the Petition should be summarily dismissed on grounds of untimeliness and procedural default. Because it does not appear that appointment of counsel would benefit the Court in the decisionmaking process, the Court will deny Petitioner's second request for appointment of counsel (Dkt. 12). Further, because the Court determines that the Petition is, in fact, untimely, the Court will not address Respondent's procedural default argument.

MOTION TO DISMISS

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. It is appropriate for the Court to take judicial notice of court dockets from state court proceedings. Fed. R. Evid. 201(b); Dawson v Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).

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.

Title 28 U.S.C. § 2244(d)(1) provides that the one-year statute of limitations is triggered by one of four events:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the ...


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