The opinion of the court was delivered by: Honorable Candy W. Dale United States Magistrate Judge
Pending before the Court in this habeas corpus action is Respondent State of Idaho's Motion for Summary Dismissal. (Dkt. 22). Petitioner failed to file a response within the time period set forth in the Court's Order dated August 8, 2011. (Dkt. 21). Nonetheless, the Respondent's Motion is ripe for consideration. Both parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
Having reviewed the Respondent's briefing, the record, and the state court record, the Court finds that disposition of the Motion would not be aided by oral argument. Accordingly, the Court enters the following Memorandum Decision and Order.
Petitioner was charged with three counts of burglary, two counts of grand theft, and one count of petit theft. (State's Lodging A-1, pp. 24-26). Pursuant to a plea agreement dated July 7, 2006, Petitioner pled guilty to one count of burglary and one count of grand theft. (State's Lodging A-1, pp. 33-38). Petitioner was sentenced to fourteen years, with the first ten years fixed for grand theft, and a concurrent ten year sentence for burglary.*fn1 (State's Lodging A-1, pp. 41-44). The judgment of conviction was entered on July 16, 2006.
Petitioner filed a motion for correction or reduction of sentence under Idaho Criminal Rule 35 (State's Lodging A-1, pp. 61-68, 83-85), which the state court denied. (State's Lodging A-1, pp. 86-89). Petitioner also filed a direct appeal (State's Lodging A-1, pp. 45-49) to challenge the "excessive sentence" he received following the plea agreement. (State's Lodging B-1, p. 1). The Idaho Court of Appeals affirmed the judgment of conviction and sentences. (State's Lodging B-4). Petitioner did not file a petition for review with the Idaho Supreme Court. As a result, the Court of Appeals issued its remittitur on September 17, 2007. (State's Lodging B-5).
Seven months later, on April 16, 2008, Petitioner filed a petition and affidavit for post conviction relief in the state district court. (State's Lodging C-1). Petitioner was appointed counsel (State's Lodging C-3), and the state filed an answer in response to the petition. (State's Lodging C-7). On August 27, 2008, a hearing was held on Petitioner's petition to address the sole issue of "ineffective assistance of counsel based upon the Petitioner's assertion that the plea bargain was violated and that he received a greater sentence than the attorneys had agreed upon." (State's Lodging, C-8, p.1). The court issued its memorandum decision on September 9, 2008, declining to grant Petitioner's post-conviction relief. (State's Lodging C-8). Petitioner did not appeal that decision. (See State's Lodging C-9, Register of actions showing absence of appeal).
Petitioner filed his federal habeas Corpus Petition ("Petition") on August 24, 2009 (Dkt. 3), and alleged three claims: 1) he was deprived of his right to effective assistance of counsel during the post-conviction proceeding; 2) he was deprived of his right to effective assistance of counsel at sentencing when counsel failed to object to Petitioner's presentence investigation report; and 3) his right to due process of law was violated because the State did not abide by the terms of Petitioner's plea agreement. (Dkt. 3, pp. 2-3). Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, this Court preliminarily reviewed the Petition and issued its Initial Review Order dismissing Petitioner's first claim for habeas relief and ordering Respondent to file its answer or other pre-answer motion to dismiss. (Dkt. 10,p. 4).
On February 11, 2011, Petitioner filed a "Motion for Leave-to Amend the Writ FRCP" (Dkt. 15) and a "Motion for Reconsideration, FRCP" to appoint counsel (Dkt. 16). Respondent filed responses to both of Petitioner's Motions, as well as its Motion for Summary Dismissal. (Dkt. 17, 18, 19).On August 8, 2011, this Court issued an Order granting Petitioner's Motion for Leave to Amend, denying Petitioner's Motion for Reconsideration, and dismissing Respondent's Motion for Summary Dismissal without prejudice. (Dkt. 21).
Respondent refiled its Motion for Summary Dismissal on September 26, 2011 (Dkt. 22), after Petitioner failed to file an Amended Petition within the thirty day time period set forth in this Court's Order (Dkt. 21, p. 2). Petitioner has not filed any response to Respondent's Motion for Summary Dismissal, and the time to do so has long since passed.
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. When a court is considering a motion to dismiss, it may take judicial notice of facts outside the pleadings. Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1281 (9th Cir. 1986).*fn2 A court may look beyond the complaint to matters of public record, and doing so does not convert a motion for ...