The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge
MEMORANDUM DECISION AND ORDER
Pending before the Court in this habeas corpus action is Respondent's Motion for Summary Dismissal (Dkt. 8). Petitioner has responded to the Motion by filing a Response (Dkt. 15) and a Motion to Stay and Abey or for Equitable Tolling (Dkt. 19). 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 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 Court enters the following Order.
RESPONDENT'S MOTION TO DISMISS
1. Standard of Law Governing Summary Dismissal
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).
Petitioner was charged with first degree murder for strangling his girlfriend, Rose Marie Murphy. He later pleaded guilty to and was convicted of one count of second degree murder in the Fifth Judicial District Court in Twin Falls County, Idaho. Judgment of conviction was entered on June 2, 2008. He was sentenced to a term of fifteen years to life in prison. (State's Lodging B-1, p. 23.) Petitioner agreed to waive his right to appeal in the plea agreement, and, as a result, did not file a direct appeal.
Petitioner's version of events is that he was falsely accused of strangling his girlfriend, and he was forced to enter a guilty plea only after: (1) jailors refused to treat his medical condition, thrush (a yeast infection affecting the mouth and tongue), (2) coercion by his attorney, Twin Falls County Public Defender Marilyn Paul; and (3) coercion by law enforcement officers.
Petitioner filed a pro se post-conviction application on May 22, 2009. (Id.) The state district court appointed counsel Joe Rockstahl for Petitioner (Id., pp. 38-39.) On June 12, 2009, the state district court issued an order governing the post-conviction proceedings, which ordered counsel for Petitioner to file a amended application within 28 days, if necessary, to comply with the post-conviction statutes, and to certify that each claim in the amended application "is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law." (Id., p. 42.)
The State filed a motion for summary disposition of the application. (State's Lodging B-1, p. 47.) Mr. Rockstahl made efforts to obtain the criminal record from the public defender's office and the medical records from the Twin Falls County Jail. (Id., pp. 87-98.) Thereafter, Mr. Rockstahl filed an objection to summary disposition, with affidavits, exhibits, and a request for judicial notice. (Id., p. 100.) The objection addressed only the ineffective assistance of trial counsel claims (including some of those claims contained in the pro se application, and some claims newly set forth in the objection). (Id., pp. 100-106.)
The State then filed a response to Petitioner's objection to summary disposition. (State's Lodging B-1, p. 146.) On October 21, 2009, five days before the hearing on the State's motion for summary disposition, Petitioner filed a handwritten pro se addendum, with memorandum of law, to supplement his application, which contained claims from the original application, claims mentioned by his counsel in the objection, and new claims without supporting facts. (Id., pp. 158-67, 170 n.1.) After oral argument, the state district court summarily dismissed the entire application after addressing the claims in the original application, objection, and addendum. (Id., pp. 169-90.)
On appeal, Petitioner did not challenge the merits of the dismissed claims; rather, through new counsel (the state public appellate defender), he challenged only whether the district court could dismiss the addendum claims without providing him with an additional twenty days' notice and an opportunity to respond under the post-conviction statute. See I.C. § 19-4906(b). (State's Lodging C-1.)
The Idaho Court of Appeals affirmed the district court's decision on February 2, 2011, and the Idaho Supreme Court denied the petition for review on March 21, 2011. (State's Lodging C-3, C-10.)
The Petition for Writ of Habeas Corpus in this action was constructively filed on May 10, 2011 (mailbox rule, if applicable)*fn1 and actually filed on May 20, 2011 (filing date). (Dkt. 1.) The Initial Review Order construed the Petition as containing nine claims:
(1) ineffective assistance of trial counsel for failing to investigate Petitioner's case, advising him to plead guilty, failing to take into consideration that Petitioner suffered from a serious untreated medical condition, failing to put sufficient effort into his case because she was too busy with other cases, failing to file necessary motions, failing to keep Petitioner informed, and advising him to give up his appeal rights in his plea agreement; (2) officers planted evidence, threatened Petitioner, and coerced him into pleading guilty; (3) the prosecution presented false evidence; (4) the prosecution failed to disclose evidence; (5) the trial court abused its discretion when it dismissed his post-conviction petition addendum without notice; (6) the trial court denied Petitioner a second attorney even though he was charged with first degree murder and facing the death penalty; (7) the trial court failed to hold a competency hearing; (8) actual innocence; and (9) denial of access to courts when Petitioner was not appointed counsel to assist him in filing his initial post-conviction petition. (See Initial Review Order, Dkt. 4, pp. 3-6; Petition, Dkt. 1.)
3. Discussion of Non-Cognizable Claims
This Court agrees with the assessment of the Magistrate Court in the Initial Review Order that Claims 5 and 8 are non-cognizable claims that are subject to dismissal. Claim 5 is that the trial court abused its discretion when it dismissed his post-conviction petition addendum without notice. (Dkt. 4, pp.3-6.) Claim 5 is non-cognizable because habeas corpus is not the proper avenue to address errors in a state's post-conviction review process (Dkt. 4, pp.4-5 (Initial Review Order citing Franzen v. Brinkman, 877 F.2d 26 (9th Cr. 1989); Williams v. Missouri, 640 F.2d 140 (8th Cir. 1981)).
Claim 8, "actual innocence," is non-cognizable because actual innocence is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits. (Dkt. 4, p.5 (Order citing Herrera v. Collins, 506 U.S. 390, 404-405 (1993)).)
In addition, Claim 9 is also non-cognizable. In Claim 9, Petitioner alleges that he was denied access to courts when he was not appointed counsel to assist him in filing his initial post-conviction petition. Prisoners do not have a federal constitutional right to the effective assistance of counsel during state post-conviction proceedings, and thus such a claim cannot be the basis for habeas corpus relief. Pennsylvania v. Finley, 481 U.S. 551 (1987); Bonin v. Vasquez, 999 F.2d 425, 429 (9th Cir. 1993) (no constitutional right to counsel during state habeas proceedings even if that was the first forum in which a defendant could challenge the constitutional competence of counsel).
Petitioner argues that it is error to prevent him from proceeding on Claim 9, because it is based on a First Amendment right to access the courts and the Fourteenth Amendment Due Process Clause. (Dkt. 21, p. 10.) However, federal habeas corpus relief is limited to challenges to convictions or sentences; a federal law challenge to an error in a state post-conviction matter is different from a challenge to the conviction underlying the state post-conviction action. Therefore, Petitioner's argument is unpersuasive, and Claim 9 is subject to dismissal.
4. Standard of Law Governing Procedural Default
Respondent argues that Claims 1, 2, 3, 4, 6, and 7 are procedurally defaulted, because Petitioner failed to properly present them to the Idaho Supreme Court before filing the habeas corpus petition in this action. Habeas corpus law requires that a petitioner "exhaust" his state court remedies before pursuing a claim in a federal habeas petition. 28 U.S.C. § 2254(b). To exhaust a claim, a habeas petitioner must fairly present it to the highest state court for review in the manner prescribed by state law. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Unless a petitioner has exhausted his state court remedies relative to a particular claim, a federal district court may deny the claim on its merits, but it cannot otherwise grant relief on unexhausted claims. 28 U.S.C. § 2254(b). The petitioner can satisfy the exhaustion requirement by showing that (1) he has "fairly presented" his federal claim to the highest state court with jurisdiction to consider it, or (2) that he did not present the claim to the highest state court, but no state court remedy is available when he arrives in federal court (improper exhaustion). Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations omitted).
To exhaust a habeas claim properly, a habeas petitioner must "invok[e] one complete round of the State's established appellate review process," O'Sullivan v. Boerckel, 526 U.S. at 845, giving the state courts a full and fair opportunity to correct the alleged constitutional error at each level of appellate review. See Baldwin v. Reese, ...