MEMORANDUM DECISION AND ORDER
B. LYNN WINMILL, Chief District Judge.
Pending before the Court are various motions filed by the parties and by proposed intervenors that are now ripe for adjudication, including Respondent's Motion to Dismiss based on procedural default. Having reviewed the record in this matter, the Court has determined that oral argument is unnecessary. Accordingly, the Court enters the following Order.
RESPONDENT'S MOTION TO DISMISS
Respondent asserts that all of Petitioner's claims are procedurally defaulted, and that the Petition for Writ of Habeas Corpus is subject to dismissal with prejudice. (Dkt. 18.) Petitioner makes several arguments in response to show that his claims are not procedurally defaulted, or, if they are, why the merits of the claims should be heard under one of the exceptions to the procedural default rule. (Dkt. 27.)
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 considering dismissal, 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).
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). If a petitioner has not exhausted his state court remedies for a particular claim, a federal district court may deny the claim on its merits, but it cannot otherwise grant relief on an unexhausted claim. 28 U.S.C. § 2254(b). A 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, 541 U.S. 27, 29 (2004). Improperly exhausted claims are deemed "procedurally defaulted." Procedurally defaulted claims include those within the following circumstances: (1) when a petitioner has completely failed to raise a particular claim before the Idaho courts; (2) when a petitioner has raised a claim, but has failed to fully and fairly present it as a federal claim to the Idaho courts; or (3) when the Idaho courts have rejected a claim on an independent and adequate state procedural ground. See Martinez v. Klauser, 266 F.3d 1091, 1093-94 (9th Cir. 2001) (quoting Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)). Under these circumstances, the claim is considered to be "procedurally defaulted" for purposes of federal habeas corpus proceedings. Coleman v. Thompson, 501 U.S. 722, 731 (1991).
In October 2000, Petitioner was indicted for crimes relating to a scheme to defraud investors in Utah, Idaho, and Wyoming, in a federal criminal case in the United States District Court for the District of Wyoming. See Case No. 00-cr-00144-01J, United States of America v. Steven James Cook.
In addition, in July 2001, Petitioner was charged with nine counts of grand theft by deception, one count of selling securities without a license, and a persistent violator enhancement, in an Information filed in the Bear Lake County District Court in Paris, Idaho. (State's Lodging A-1, pp. 60-64.) Petitioner, aided by appointed counsel Todd Garbett, pleaded guilty to the nine counts of grand theft in exchange for dismissal of the other two charges. Petitioner was sentenced to a unified term of fourteen years, with five years fixed for Count I (to run concurrent with his sentence in a related federal case), followed by eight consecutive unified terms of eight years with three years fixed for the remaining counts. His total aggregate sentence was 78 years, consisting of 29 years fixed, with 49 years indeterminate. In addition, he was ordered to pay $1, 467, 577 in restitution. (State's Lodging A-1, p. 84.)
No direct appeal was filed, but Petitioner filed a Rule 35 motion for reduction of sentence. (State's Lodging A-1, p. 94.) The state district court denied the motion, and Petitioner did not file an appeal. ( Id., p. 102.)
From this point, the procedural history of Petitioner's postconviction matters has been described as "complex and protracted." (State's Lodging E-12.) The Court will briefly highlight those portions of the postconviction history relevant to the procedural default issues in this case.
November 2004 Counsel David Parmenter filed a first application for postconviction relief for Petitioner, asserting, among other claims: (1) trial counsel Garbett was ineffective for failing to call witnesses and present evidence regarding a restitution plan at Petitioner's sentencing that sought to have Petitioner released on probation to pursue employment so that he could repay investors; and (2) Garbett was ineffective for failing to file a notice of appeal from the judgment of conviction and from the denial of the Rule 35 motion for reduction of sentence. (State's Lodging B-1.)
September 2006 The state district court denied relief on Claim (1), but granted relief on Claim (2), re-entering judgment (twice) to permit Petitioner to appeal. (State's Lodging A-1, pp. 143, 156-57.)
March 2008 The Idaho Court of Appeals affirmed the state court decision that counsel was not ineffective, but determined that the cumulative consecutive sentences were unreasonably harsh and reduced them from a unified term of 78 years with 29 years fixed to a unified term of 46 years with 17 years fixed. (State's Lodging C-6.) Petitioner did not file a petition for review to challenge the portion of the decision affirming the ruling that Petitioner had failed to show ineffective assistance of counsel.
September 2009 Counsel John Souza filed a Rule 60(b) motion that was treated as a successive postconviction action. (State's Lodging D-1, pp. 28-130.) The state district court determined that Petitioner's prior counsel were ineffective for failing to present new information at the original rule 35 hearing or the original postconviction action. The court granted relief, entering an amended judgment of conviction, suspending the balance of his sentence, and placing him on supervised probation for 37 ...