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Carlos Esquivel v. Johanna Smith

August 28, 2012

CARLOS ESQUIVEL, PETITIONER,
v.
JOHANNA SMITH, RESPONDENT.



The opinion of the court was delivered by: B. Lynn Winmill Chief Judge United States District Court

ORDER

MEMORANDUM DECISION AND

Pending before the Court in this habeas corpus matter is Respondent's Motion for Partial Summary Dismissal (Dkt. 10), Petitioner's Motion and Affidavit in Support for [sic] Appointment of Counsel (Dkt. 22), Petitioner's Motion to Court to File Decision or Response (Dkt. 25), Petitioner's Late Motion for Leave to File Amended Petition (Dkt. 27) and Petitioner's Motion for the Appointment of Counsel -- Renewed (Dkt. 28). In the interests of avoiding further delay, the Court will decide these matters on the briefs and record without oral argument. D. Idaho L. Civ. R. 7.1.

For the reasons that follow, the Court will grant Petitioner's request for leave to file an Amended Petition but will deny Petitioner's two motions for the appointment of counsel. The Court will dismiss, as moot, Respondent's Motion for Partial Summary Dismissal of the original Petition and Petitioner's Motion to Court to File Decision or Response.

BACKGROUND

After a jury trial in state district court, Petitioner was convicted of three counts of lewd conduct with a minor and one count of sexual abuse of a minor. (State's Lodging A-1, pp. 82-84.) For the lewd conduct convictions, he was sentenced to 30 years in prison with 15 years fixed, and for the sexual abuse conviction, he was sentenced to 15 years in prison with 5 years fixed. (Id. at 83.) Petitioner is serving his sentences concurrently. (Id.) Petitioner's convictions and sentences were affirmed by the Idaho Court of Appeals, and the Idaho Supreme Court declined to review the case. (State's Lodgings B-3, B-6.)

Petitioner next pursued post-conviction relief. (State's Lodging C-1.) The district court summarily denied relief, and the Idaho Court of Appeals affirmed in part and reversed in part, remanding for the appointment of counsel. (State's Lodging D-4. p. 8.) On remand, the district court appointed counsel for Petitioner before again denying relief. (State's Lodging E-1, pp. 66-78, 81-94.) The Idaho Court of Appeals affirmed this decision, and Petitioner's petition for review was denied. (State's Lodgings F-7, F-12, F13.)

On January 28, 2011, Petitioner filed a Petition for Writ of Habeas Corpus in this Court, commencing these proceedings. (Dkt. 3.) He raised five broad claims, including several sub-claims and sub-issues. (Dkt. 3-1, pp. 1-2.) United States Magistrate Judge Larry M. Boyle reviewed the Petition and ordered the Clerk to serve it on Respondent. (Dkt. 6.) The case was later reassigned to the undersigned District Judge. (Dkt. 7.)

Respondent has responded to the Petition by filing a Motion for Partial Summary Dismissal. (Dkt. 10.) He argues that Petitioner did not fairly present his claims to the state courts, except a single issue that Petitioner's trial counsel had been ineffective in failing to inform him that he had a right under the Fifth Amendment not to participate in a pre-sentencing psychosexual evaluation. (Dkt. 10-1, p. 12.) Because the time to present the other claims has passed, Respondent asserts that those claims are procedurally defaulted and must be dismissed. (Id.)

Rather than respond to Respondent's Motion, Petitioner lodged an Amended Petition. (Dkt. 21, p. 7.) The Court construes the Amended Petition as raising two claims, both of which center on Petitioner's involvement in the psychosexual evaluation: (1) a violation of his right to the effective assistance of counsel under the Sixth Amendment and (2) a violation of his privilege against self-incrimination under the Fifth Amendment.*fn1

Long after he had submitted his Amended Petition, Petitioner filed a Late Motion for Leave to File Amended Petition. (Dkt. 27.) He has also requested the appointment of counsel. (Dkts. 22, 28.)

These matters are fully briefed, and the Court is prepared to issue its ruling.

PETITIONER WILL BE GRANTED LEAVE TO AMEND

The Court will first take up Petitioner's request to file his Amended Petition. An application for habeas relief may be amended "as provided in the rules of procedure applicable to civil actions." 28 U.S.C. ยง 2242. Rule 15 of the Federal ...


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