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Dub Dean Tunstall v. Tim Wengler

June 22, 2011

DUB DEAN TUNSTALL, PETITIONER,
v.
TIM WENGLER, RESPONDENT.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER

Pending before the Court is Respondent's Motion for Summary Dismissal. (Dkt. 12.) Petitioner has filed a Response, and Respondent has filed a Reply. (Dkts. 14 & 15.) Having reviewed the arguments of the parties, as well as the state court record, the Court enters the following Order.

BACKGROUND

Petitioner pleaded guilty to and was convicted of one count of rape in the Fifth Judicial District Court, in Twin Falls, Idaho. He received a unified sentence of 25 years, with the first 18 years fixed. The judgment of conviction was entered on September 29, 2004. (State's Lodging A-1, pp. 48-54.)

Petitioner pursued a direct appeal, arguing that his sentence was excessive. The Idaho Court of Appeals heard Petitioner's appeal, affirming the sentence. The Idaho Court of Appeals denied Petitioner's petition for review and issued its remittitur on December 21, 2005. (State's Lodgings B-1 to B-7.)

On August 1, 2005, in the midst of his direct appeal, Petitioner filed a state post-conviction application, raising Fifth, Sixth, and Eighth Amendment claims. (State's Lodging C-1, pp. 27-33.) Petitioner's application was dismissed by the state district court on April 3, 2006. (Id., pp. 64-65.) Petitioner filed an untimely notice of appeal that was dismissed by the Idaho Supreme Court. (State's Lodging D-3.)The remittitur was issued on August 15, 2006. (State's Lodging D-4.)

After his direct appeal concluded, Petitioner had nothing pending in state court until he filed a successive application for post-conviction relief on March 10, 2008. (State's Lodging C-1, pp. 103-112.) 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 successive post-conviction application was dismissed by the state district court. (State's Lodging C-1, pp. 177-208.) The Idaho Court of Appeals affirmed dismissal. (State's Lodging E-3.) The Idaho Supreme Court denied Petitioner's petition for review and issued its remittitur on August 24, 2010. (State's Lodging E-6 & E-7.)

Petitioner filed his Petition for Writ of Habeas Corpus in this Court on September 7, 2010 (mailbox rule).*fn2 (Dkt. 3.) He brings claims that his counsel misled him about the length of his sentence under a guilty plea and performed ineffectively regarding a psychosexual evaluation ordered for sentencing.

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. ยง 2244(d)(1). Because Petitioner's federal habeas corpus petition was filed after AEDPA's enactment date, it is subject to ...


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