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Allsop v. Reinke

United States District Court, Ninth Circuit

June 6, 2013

WILLIAM R. ALLSOP, Petitioner,
BRENT REINKE, [1] Respondent.


RONALD E. BUSH, Magistrate Judge.

Idaho state prisoner William Allsop filed a Petition for Writ of Habeas Corpus challenging his state criminal conviction and sentence. (Dkt. 3.) Respondent filed a Motion for Summary Dismissal, asserting that the Petition is subject to dismissal because the claims are both untimely and procedurally defaulted. (Dkt. 18, 18-1.) Petitioner received the Notice to Pro Se Litigants of the Summary Judgment Rule Requirements and filed a Response. (Dkt. 19, 22.) 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 accordance with U.S.C. ยง 636(c) and Fed.R.Civ.P. 73. (Dkt. 7, 11, 12.) Having reviewed the record, including the state court record, the Court concludes that oral argument is unnecessary. Accordingly, the Court enters the following Order.


On February 24, 2006, Petitioner was charged with two counts of lewd conduct with a minor under the age of sixteen in a criminal case in Bonneville County, Idaho. (State's Lodging A-1, pp. 7-8.) A competency evaluation and hearing revealed that Petitioner was unable to proceed with his defense, and he was committed to the Department of Health and Welfare for 90 days. ( Id., pp. 27-28; State's Lodging A-3, pp. 1-148.) During his commitment, Petitioner was re-evaluated and found competent. The state district court found Petitioner competent to proceed on January 8, 2007. (State's Lodgings A-1, p. 64; A-3, pp. 149-155.)

On February 27, 2007, Petitioner entered into a plea agreement with the State, pleading guilty to one count of lewd conduct in exchange for dismissal of the other count and an agreement from the State not to file additional charges. (State's Lodging A-1, pp. 81-82.) At sentencing, the Court imposed a sentence of 15 years fixed, with life indeterminate. ( Id., pp. 87-90.) Thereafter, Petitioner filed a Rule 35 motion for reduction of sentence, which was denied. ( Id., pp. 92-94, 112D.)

Petitioner filed a direct appeal, in which he alleged that the state district court abused its discretion in pronouncing a sentence that was excessive and in denying the Rule 35 motion. (State's Lodging B-1.) Petitioner focused on whether the state district court properly applied state case law and statutory law in considering Petitioner's mental illness, arguing that the primary reason for the lengthy sentence was the State's lack of adequate mental health resources and alternatives to a prison sentence.

The Idaho Court of Appeals affirmed the sentence and denial of the Rule 35 motion based upon state law, and the Idaho Supreme Court denied the petition for review. (State's Lodgings B-3, B-6.) The remittitur was issued on April 22, 2009. (State's Lodging B-7.)

Over one year later, on August 6, 2010, Petitioner filed a petition for post-conviction relief, asserting that his trial counsel was ineffective under the Sixth Amendment for not advising him of his Fifth Amendment privilege against self-incrimination as it applied to pre-sentencing psychosexual evaluations. (State's Lodging C-1, pp. 3-7.) The district court appointed counsel for Petitioner and then dismissed the petition as untimely, after a hearing in which Petitioner's counsel conceded that the petition was untimely and that Petitioner had no evidence to show that equitable tolling should be applied (such as evidence of incompetency). (State's Lodging C-1, p. 14; C-2, pp. 1-2, 21-22.)

The Court appointed the State Appellate Public Defender for Petitioner on appeal, who reviewed the case and filed a motion to withdraw from the case after concluding that there were no meritorious issues for appeal. (State's Lodgings D-1, D-2.) The motion was granted, and Petitioner proceeded pro se. (State's Lodgings D-3, D-4.)

On appeal, Petitioner argued that he was incompetent and did not understand his plea agreement as a result of the medication he was taking at that time, and that the Idaho Court of Appeals should overturn his indeterminate life sentence. (State's Lodging D-4.) At the same time, Petitioner also stated that he did not contest his guilty plea, and he failed to address the timeliness issue. ( Id. ) The Idaho Court of Appeals concluded that it would not consider the issue of incompetency at the plea stage of proceedings, because it was raised for the first time on appeal. (State's Lodging D-6, p. 2.) In addition, in reviewing the timeliness issue, the Court of Appeals determined, "when the basis for a trial court's ruling is not challenged on appeal, an appellate court will affirm on the unchallenged basis." As a result, the district court's dismissal on the basis of untimeliness was affirmed. ( Id., p. 3)

Petitioner did not file a petition for review before the Idaho Supreme Court, and the remittitur was issued on May 23, 2012. (State's Lodging D-7.) This concluded Petitioner's state court proceedings.

The federal Petition for Writ of Habeas Corpus in this action was filed on May 22, 2012 (mailbox rule date), during the pendency of the (untimely) post-conviction action. Petitioner asserts three claims. Because the first claim was indecipherable, it was dismissed on initial review. (Dkt. 8.) The second claim is that Petitioner's guilty plea was involuntary under the Fourteenth Amendment as a result of Petitioner's medication. The third ...

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