The opinion of the court was delivered by: Honorable Larry M. Boyle United States Magistrate Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court is Respondent's Motion to Dismiss. (Dkt. 16.) Petitioner has filed his Response (Dkt. 18), and the Motion is now ripe for adjudication. Both parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 5, 13.) See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
Having fully reviewed the record, including the state court record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that the decisional process would not be significantly aided by oral argument. Therefore, in the interest of avoiding further delay, the Court shall decide this matter on the written motions, briefs and record without oral argument. D. Idaho L. Civ. R. 7.1(d). Accordingly, the following Order is entered.
RESPONDENT'S MOTION TO DISMISS
Pursuant to a plea agreement, Petitioner pleaded guilty to and was convicted of one count of first degree murder and two counts of aggravated battery in a state criminal action in the Seventh Judicial District Court in Bonneville County, Idaho. (State's Lodging A-1, pp. 140-42.) He received sentences of twenty-five years to life on the murder count, seven to fifteen years on the first aggravated battery count (to run consecutively), and five to fifteen years on the second aggravated battery count (to run concurrently). The judgment of conviction was entered on July 12, 2002. (Id.)
Petitioner filed a direct appeal challenging his sentences. (State's Lodging B-1.) The sentences were affirmed on appeal by the Idaho court of Appeals on May 15, 2003. (State's Lodging B-3.) Petitioner did not file a petition for review with the Idaho Supreme Court.
Petitioner filed a post-conviction relief application on April 4, 2004, and it was dismissed upon the state's motion to dismiss on October 25, 2005. (State's Lodging C-1.) The Idaho Court of Appeals affirmed dismissal on February 28, 2007. (State's Lodging D-5.) Petitioner filed a petition for review, which was denied on July 30, 2007. (State's Lodgings D-9, D-11.)
Petitioner filed a first petition for writ of habeas corpus in federal court on December 4, 2007 (first petition) (Briggs v. Smith, 1:07-cv-00510-EJL, Dkt. 3).
Respondent filed a motion to dismiss the first petition on untimeliness grounds, which was granted by United States District Judge Edward J. Lodge. (Id., Dkt, 10, 12.) Judgment was entered on July 15, 2008. (Id., Dkt. 13.) No appeal was filed.
While the first federal habeas corpus action was pending, on December 19, 2007, Petitioner filed a second state post-conviction application. (State's Lodging E-1.) Upon the state's motion to dismiss, the state district court dismissed the application. (Id.) The Idaho Court of Appeals affirmed dismissal of the application, and the Idaho Supreme Court denied review on June 4, 2010. (State's Lodgings F-7, F-9.)
The second federal habeas corpus petition (the instant action) was filed on September 1, 2010, reasserting the same three claims from Petitioner's prior federal habeas corpus action. Respondent filed a Motion to Dismiss the Petition on grounds that it is a second or successive petition brought without authorization from the United States Court of Appeals for the Ninth Circuit, and, alternatively, that it is untimely.
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 other ...