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Mark W. Cutler v. Warden Smith

June 22, 2011

MARK W. CUTLER, PETITIONER,
v.
WARDEN SMITH, 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 in this habeas corpus action is Respondent's Motion to Dismiss (Dkt. 15) and several motions filed by Petitioner (Dkt. 9, 10, 12, 17, 18, & 20). Having reviewed the parties' briefing, as well as the state court record in this matter, the Court concludes that oral argument would not aid in the decisionmaking process. Accordingly, the Court enters the following Order.

BACKGROUND

Petitioner pleaded guilty to and was convicted of felony Driving Under the Influence in a state criminal action filed in the Fifth Judicial District Court in Blaine County, Idaho. Judgment of conviction was entered on July 17, 2000. (State's Lodging A-1, pp. 35-37.) Petitioner received a sentence of two years fixed, with three years indeterminate. Petitioner filed a direct appeal, challenging his sentence. (State's Lodgings B-1 to B-10.) A remittitur, issued on September 14, 2001, was withdrawn on October 24, 2001. (State's Lodging B-8.) The final remittitur was issued on December 18, 2001, concluding the direct appeal. (Id., B-10.)

Petitioner next filed a Rule 33 motion to withdraw his guilty plea on August 28, 2008 (mailbox rule) or September 4, 2008 (filing date). The district court denied the motion on the merits, but the Idaho Court of Appeals determined that the district court was without jurisdiction to adjudicate the merits of the motion because the motion was filed after judgment became final. (State's Lodging D-4.) Petitioner filed a petition for review with the Idaho Supreme Court, which was denied. The remittitur was issued on May 24, 2010. (State's Lodgings D-5 through D-8.)

In his federal Petition for Writ of Habeas Corpus, Petitioner brings two claims: failure to appoint counsel under the Fifth and Sixth Amendments, and unreasonable search and seizure under the Fourth Amendment. Respondent has filed a Motion to Dismiss on several grounds, including failing to meet the "in custody" requirement at the time of filing, untimeliness, and procedural default. Because the Court concludes that the Petition is subject to dismissal with prejudice because it was not filed within the one-year statute of limitations period, the Court will not address Respondent's alternative arguments for dismissal.

REVIEW OF 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 time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 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 limitations is tolled for "all of the time during which a state prisoner is attempting, through proper ...


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