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Daniel Mowrey v. Warden Johanna Smith

June 23, 2011

DANIEL MOWREY,
PETITIONER,
v.
WARDEN JOHANNA SMITH, RESPONDENT.



The opinion of the court was delivered by: Honorable Candy W. Dale United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

Pending before the Court in this habeas corpus action is Respondent's Motion for Summary Dismissal. (Dkt. 10.) Petitioner has filed his Response. (Dkt. 13.) 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' briefing, the record in this case, and the lodged state court record, the Court enters the following Order.

BACKGROUND

Petitioner pleaded guilty to and was convicted of four counts of lewd conduct with a minor in a state criminal action in the First Judicial District Court in Shoshone County, Idaho. He received sentences of five years fixed with life indeterminate on each count, with the fixed portions of each sentence to run consecutively. (State's Lodging A-2, p. 94.) The judgment of conviction was entered on March 15, 2002. (State's Lodging A-1, Register of Actions, p. 3A.)

No direct appeal was filed, but Petitioner filed a post-conviction petition on March 6, 2003 (mailbox rule).*fn1 (Petitioner's Response, Dkt. 13, p. 2.) The Register of Actions for Petitioner's 2003 case shows that the case was filed by the Clerk of the Shoshone County District Court on March 10, 2003, a public defender was appointed on March 19, 2003, a State's motion for summary disposition was filed on September 10, 2003, and an order of dismissal and final judgment were entered on January 8, 2004.*fn2

Petitioner alleges that he did not appeal the dismissal because a prison paralegal told him it would be futile. (Petitioner's Response, Dkt. 13, p. 2.) Several years elapsed where Petitioner had nothing pending in state court that was related to the conviction and sentences at issue in this habeas corpus matter.

In 2006, a decision was issued by the Idaho Supreme Court, Estrada v. State, 149 P.3d 833 (Idaho 2006), that caused a flurry of state post-conviction and federal habeas corpus petitions. In Estrada, 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.*fn3

On April 2, 2007 (mailbox rule), Petitioner tried to take advantage of Estrada by filing a Rule 35 motion to correct an illegal sentence in the state district court. (State's Lodging A-1, pp. 2-6.) Petitioner contended that his sentence was illegal because it was based on "illegally gained information from psychosexual evaluation and presentence reports." (Dkt. 3, p. 4.) Petitioner's motion was denied by the state district court, and, on appeal, the decision was affirmed by the Idaho Court of Appeals. Petitioner's petition for review was denied by the Idaho Supreme Court on July 31, 2008. (State's Lodgings B-1 to B-8.)

While the Rule 35 appeal was pending, Petitioner filed a successive post-conviction application in state court on May 5, 2008. That application was summarily dismissed by the state district court. The Court of Appeals affirmed dismissal on April 16, 2010, holding that Petitioner's claim was subject to dismissal under Kriebel v. State, 219 P.23 1204, 1207 (Idaho Ct. App. 2009) (determining that Estrada did not announce a new, retroactively-applicable rule). Petitioner's petition for review was denied by the Idaho Supreme Court on May 26, 2010. (State's Lodgings C-1 through D-8.)

MOTION TO DISMISS

1. Standard of Law Governing Summary Dismissal and Timeliness

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 ...


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