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Donald Day v. Warden Johanna Smith (Isci

June 14, 2011


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


Pending before the Court in this habeas corpus matter are Respondent's Motion for Summary Dismissal (Dkt. 12) and Petitioner's Motion for Appointment of Counsel (Dkt.15). Both parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 11.) See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.

Having reviewed the Motion for Summary Dismissal, the Response, and the Reply, the Court has considered whether appointment of counsel for Petitioner is warranted. There is no constitutional right to counsel in a habeas corpus action. Coleman v. Thompson, 501 U.S. 722, 755 (1991). A habeas petitioner has a right to counsel, as provided by rule, if counsel is necessary for effective discovery or an evidentiary hearing is required in his case. See Rules 6(a) & 8(c) of the Rules Governing Section 2254 Cases.

In addition, the Court may exercise its discretion to appoint counsel for an indigent petitioner in any case where required by the interests of justice. 28 U.S.C. § 2254(h); 18 U.S.C. § 3006A(a)(2)(B).

Under the circumstances, the Court finds that a hearing is unnecessary, the issues are not novel or complex, and that appointment of counsel would not significantly aid the Court in the decisionmaking process. As a result, the Motion for Appointment of Counsel will be denied.


Petitioner Donald Henry Day, Jr., was originally charged with five felonies in a criminal case in the Second Judicial District Court in Lewiston, Nez Perce County, Idaho. Petitioner was 21 years old when he committed the crimes, and 24 years old when he was sentenced. At the time of sentencing, Petitioner had an active warrant outstanding from the state of Washington, and had pled guilty to lewd conduct with a child in the state of Utah. (State's Lodging B-4, pp. 1-3.)

The Idaho Court of Appeals summarized the procedural history of Petitioner's case as follows:

Day was originally charged with three counts of rape and two counts of lewd conduct with a minor chid under sixteen. Pursuant to an I.C.R. plea agreement, Day pled guilty to one count of rape, and the remaining charges were dismissed. After reviewing the presentence investigation (PSI) report and the sex offender evaluation, the district court rejected the Rule 11 plea agreement and permitted Day to withdraw his guilty plea. Day then failed to appear for his jury trial and a bench warrant was issued for his arrest.

Approximately two years later, Day was arrested on the bench warrant and his trial was reset. Day again pled guilty to one count of rape and the remaining counts were dismissed. The state also agreed not to refile a burglary charge and represented that the State of Washington would not file additional charges against Day based upon the facts of the case. An updated PSI report and sex offender evaluation were prepared on Day. The district court imposed a unified life sentence with twenty years fixed. (Id., pp. 1-2.) Petitioner's judgment of conviction was entered on July 26, 1995. (State's Lodging A-1, pp. 96-97.)

Petitioner filed a direct appeal challenging the length of his sentence, which was heard by the Idaho Court of Appeals. After the Court of Appeals affirmed the judgment and conviction, the Idaho Supreme Court denied review on August 5, 1996. (State's Lodgings B-1 to B-7.) Petitioner had 90 days, ending November 3, 1996, to file a petition for writ of certiorari with the United States Supreme Court. However, because Petitioner did not file anything further, his judgment became final on that date.

Petitioner filed a post-conviction application twelve years later, on January 23, 2008. (State's Lodging C-1, pp. 3-9.) The state district court ultimately determined that the application was untimely. (Id., pp. 44-58.) Petitioner filed a notice of appeal, but his appointed counsel filed an affidavit stating there were no meritorious issues for appeal. Thereafter, Petitioner voluntarily dismissed the appeal. (State's Lodgings D-1 to D-6.)

In his federal Petition, Petitioner brings the following claims: ineffective assistance of counsel regarding Petitioner's plea agreement, ineffective assistance of counsel and denial of the right to remain silent during a psychological evaluation for ...

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