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Jody Johnson v. Timothy Wengler

September 26, 2012

JODY JOHNSON, PETITIONER,
v.
TIMOTHY WENGLER, WARDEN, ICC, RESPONDENT.



The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge

MEMORANDUM DECISION AND ORDER

INTRODUCTION

Pending before the Court are two motions filed by Respondent that are ripe for adjudication in this federal habeas corpus case. 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.

BACKGROUND

In May 2000, Petitioner was convicted of first degree murder of Noreassa Huck after a jury trial in the Fourth Judicial District Court in Ada County, Idaho. (State's Lodging A-1, p.85.) Judgment of conviction was entered on June 15, 2000. (Id., pp.88-91.) Petitioner received a unified life sentence with forty-five years fixed. (Id.) Petitioner filed a direct appeal, alleging that the jury verdict was not supported by substantial evidence, and that the trial court's sentence was excessive. (State's Lodging B-1.) The Idaho Court of Appeals affirmed Petitioner's conviction and sentence in a published opinion, concluding there was substantial and competent evidence for the jury to find Petitioner guilty of first-degree murder, and finding that the trial court did not abuse its sentencing discretion. (State's Lodging B-4.) Petitioner filed a petition for review (State's Lodging, B-2), but on January 22, 2002, the Idaho Supreme Court denied Petitioner's petition for review and issued the Remittitur. (State's Lodgings B-7, B-8.)

More than seven years later, on May 22, 2009, Petitioner filed a petition and affidavit for post-conviction relief in state district court, alleging ineffective assistance of trial counsel. (State's Lodging C-1, pp.4-63.) Petitioner readily acknowledged that his petition was untimely under Idaho law,*fn1 but argued that "not being schooled in law and its elements in Due Process" should excuse his untimely filing. (Id., p.9.) The district court gave Petitioner notice of its intent to dismiss the post-conviction petition because of his untimely filing and failure to allege a valid tolling exception. (Id., pp.73-77, 94-96.) The district court also appointed counsel to assist Petitioner in determining whether any valid tolling exceptions applied. (Id., pp.94-96.) Thereafter, Petitioner's newly appointed counsel filed a "Notice of Non-Filing" with the trial court, wherein counsel declined to file an amended petition on behalf of Petitioner because counsel could find no basis for equitable tolling. (Id., pp.107-108.) On August 25, 2009, the district court dismissed Petitioner's petition for post-conviction relief as untimely and failing to state any valid claims that would entitle him to relief. (Id., pp.109-111.)

Petitioner appealed the district court's dismissal of his post-conviction petition, and on September 3, 2009, the district court ordered the State Appellate Public Defender ("SAPD") to represent Petitioner in his appeal. (State's Lodging C-1, pp. 117-118.) However, on March 17, 2010, the SAPD filed a motion for leave to withdraw and to suspend the briefing schedule because it was unable to identify a viable issue for appeal. (State's Lodging D-12.) The Idaho Supreme Court granted SAPD's motion (State's Lodging D-15), so Petitioner continued his appeal pro se, contending that the district court failed to recognize Petitioner's constitutional rights (both state and federal) as a valid basis for equitable tolling. (State's Lodgings D-1, D-3.) The Idaho Court of Appeals rejected Petitioner's argument in an unpublished opinion dated November 30, 2010, and affirmed the dismissal of Petitioner's post-conviction petition without reaching the merits of Petitioner's claims. (State's Lodging D-4.) The Idaho Supreme Court subsequently denied Petitioner's separate petitions for rehearing and review, and issued the Remittitur on January 25, 2011. (State's Lodgings D-9, D-10, D-11.)

Petitioner then filed a Petition for Writ of Habeas Corpus in this Court on April 21, 2011, commencing these proceedings. (Dkt. 1.) Petitioner made the following two claims:

(1) the Idaho post-conviction statute of limitations violates his state and federal constitutional rights; and (2) ineffective assistance of trial counsel. (Id., p.2.) Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, Chief United States Magistrate Judge Candy W. Dale preliminarily reviewed the Petition and on May 17, 2011, issued her Initial Review Order. (Dkt. 4.) Judge Dale determined that the first claim was not cognizable and would be dismissed in the final order because habeas corpus is not the proper avenue to address alleged errors in a state's post-conviction review process. (Dkt. 4, pp.2-3.) As to the second and only remaining claim, Judge Dale permitted Petitioner to proceed to the next step in this habeas proceeding so he could show proper exhaustion of his state court remedies, or alternatively, a viable excuse for failure to do so. (Id.)

Pursuant to the terms of the Initial Review Order, Respondent filed a Motion for Summary Dismissal (Dkt. 9), and Petitioner filed his Response to Motion of Summary Dismissal Pursuant to: Initial Review Order; (6) (sic) (Dkt. 12) (hereinafter "Response"). Respondent then filed a Reply Brief in Support of Respondent's Motion for Summary Dismissal (Dkt. 13). On March 8, 2012, Petitioner filed a "Rebuttle [sic] to Motion of Respondents, Summary Dismissal Pursuant to Writ of Habeas" (Dkt. 14) (hereinafter "Rebuttal"), to which Respondent filed a Motion to Strike Petitioner's Rebuttal (Dkt. 15.)

Judge Dale has since reassigned the matter to the undersigned District Judge because not all parties had consented to a Magistrate Judge exercising jurisdiction under 28 U.S.C. § 636(c). (Dkt. 19.)

The Court has reviewed the motions, responses, and the record, and it is now prepared to issue its ruling.

RESPONDENT'S MOTION TO STRIKE PETITIONER'S REBUTTAL

Respondent has filed a Motion to Strike Petitioner's Rebuttal because Petitioner failed to obtain leave of the Court to file such a pleading as required by the Court's Initial Review Order, and because such a pleading is not contemplated by the applicable rules. (Dkt. 15, p. 2.) Indeed, in its Initial Review Order the Court ordered the parties to file certain pleadings in this habeas proceeding with corresponding deadlines, and then further ordered that: "No party shall file supplemental responses, replies, affidavits or other documents not expressly authorized by the Local Rules without first obtaining leave of Court." (Dkt. 4, p.9.) The Local Rules, the Federal Rules of Civil Procedure, and the Rules Governing Section 2254 Cases do not specify or allow for the filing of a sur-reply or rebuttal to a motion for summary dismissal in a federal habeas ...


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