MEMORANDUM DECISION AND ORDER
EDWARD J. LODGE, District Judge.
Pending before the Court in this habeas corpus matter is Respondent's Motion for Summary Dismissal (Dkt. 44) of the Second Amended Petition (Dkt. 33). Also pending are the following motions: (1) Respondent's Motion to File an Oversize Brief in support of the Motion for Summary Dismissal (Dkt. 45); (2) Respondent's Motion to File an Oversize Reply Brief (Dkt. 49); (3) Petitioner's Emergency Motion seeking a reduction of the 90-day period within which Respondent is required to file an answer and requesting an order compelling Respondent to forward Petitioner all state court records (Dkt. 42); and (4) Petitioner's Motion Clarifying Objection to Motion for Summary Dismissal (Dkt. 50).
Petitioner Alexander Jason Woodley filed his initial Petition in this Court (Dkt. 3) on May 19, 2010, while he was incarcerated. Although it appears that Petitioner has since been released on parole, he remains "in custody" for purposes of this habeas case. See Goldyn v. Hayes, 444 F.3d 1062, 1063 n.2 (9th Cir. 2006).
Having carefully 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, 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 conditionally dismissing the Second Amended Petition as untimely.
Respondent shall, within 10 days of the date of this Order, provide Petitioner with all relevant state court records. Petitioner shall have 14 days thereafter to file a response to this Order showing why the Court should not enter an order of final dismissal.
As an initial matter, the Court will grant Respondent's Motion to File an Oversize Brief in support of the Motion for Summary Dismissal (Dkt. 45) and Respondent's Motion to File an Oversize Reply Brief (Dkt. 49).
In his Motion Clarifying Objection to the Motion for Summary Dismissal (Dkt. 50), Petitioner sets forth additional argument on why his Second Amended Petition should not be dismissed. He also objects that Respondent's reply brief is untimely. ( Id. at 1.)
The parties argue over whether the reply was late and, if so, how late. The reply was filed on January 15, 2013. According to the Court's previous order, the reply had to be filed within 14 days after Petitioner's response was "filed and served." (Order, Dkt. 41, at 4.) Although Petitioner signed (and presumably mailed) his Objection to Respondent's Motion for Summary Dismissal on December 27, 2012 (Dkt. 47 at 7), the Court did not receive and enter it on the docket until January 2, 2013. ( See Docket Sheet.) Assuming that Respondent similarly was not "served" with Petitioner's Objection until January 2, 2013, the reply was due on January 15, 2013. Thus, the reply was timely. Additionally, Petitioner has not identified any prejudice that would result if the Court considers the reply brief. Therefore, Petitioner's Motion Clarifying Objection will be denied.
The Court has, however, reviewed and considered all of Petitioner's arguments in all of his submissions to the Court, including the Motion Clarifying Objection.
RESPONDENT'S MOTION FOR SUMMARY DISMISSAL
Rule 4 of the Rules Governing Section 2254 Cases authorizes the Court to summarily dismiss a petition for writ of habeas corpus or claims contained in the petition when "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." A respondent may also move for dismissal if the petition fails to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). Dismissal may be based either on the lack of cognizable legal theories or the lack of sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990). The Court takes judicial notice of the state court records lodged by the parties. Fed.R.Evid. 201(b); Dawson v Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006).
Respondent contends that Petitioner's claims are barred by the statute of limitations. Respondent also argues that Petitioner's claims are procedurally defaulted because (1) Petitioner did not exhaust his habeas claims in state court or (2) the state court's dismissal of his claims as untimely was based on an adequate and independent state ground.
The Court need not address Respondent's procedural default argument. The initial Petition was filed after the one-year statute of limitations had already run. See 28 U.S.C. § 2244(d). Because Petitioner (1) is entitled only to limited statutory tolling, (2) is not entitled to equitable tolling, and (3) has not made a colorable showing of actual innocence or that his guilty plea was involuntary, the Court will dismiss the Second Amended Petition with prejudice as untimely.
1. Factual and Procedural Background
A. The Plea Agreement
Petitioner was charged with felony driving under the influence in the Seventh Judicial District for Bingham County, Idaho. On May 21, 2007, Petitioner pleaded guilty pursuant to a binding plea agreement. (State's Lodging A-2 at 12.) The agreement provided that in exchange for pleading guilty, Petitioner would not receive any additional jail time, would be granted a withheld judgment, and would receive probation. (State's Lodging A-1 at 80.) The agreement also provided that if the court did not accept the plea agreement, Petitioner would be entitled to withdraw his plea. ( Id. )
The court later accepted the plea agreement as binding and informed Petitioner that he did not have the right to withdraw his guilty plea. (State's Lodging A-2 at 12, 20.) However, although the court placed Petitioner on probation and ordered his release, the court inadvertently did not withhold judgment as required by the plea agreement. Rather, the court entered a judgment of conviction, sentenced Petitioner to a unified sentence of 7 years imprisonment with 4 years fixed, and suspended that sentence. ( Id. at 26; State's Lodging A-1 at 91-94.) Pursuant to the plea agreement, because the court did not enter a withheld judgment, Petitioner in fact did have a right to withdraw his plea. Neither the prosecution nor the defense alerted the court to its mistake.
B. Direct Appeal
Petitioner's counsel, David N. Parmenter, filed a notice of appeal on a single issue: "whether the Court erred at sentencing." (State's Lodging A-1 at 100.) However, instead of pursuing the appeal, Parmenter filed a motion to withdraw and motion to appoint the State Appellate Public Defender's Office as counsel for Petitioner. ( Id. at 102-104.) The motion was apparently never resolved (State's Lodging D-6 at 51-52), and Parmenter took no action when the Idaho Supreme Court conditionally dismissed the appeal for failure to pay the transcript and record fees. (State's Lodging B-1.) Parmenter should have received this order as counsel of record, but he did not notify Petitioner. Because Parmenter neither paid the fee nor filed the appropriate indigence affidavit within 21 days, the Supreme Court entered an order of final dismissal on October 22, 2007. (State's Lodging B-2.) The remittitur is dated November 14, 2007 (State's Lodging B-3), although it appears that it might not have been officially issued until November 21, 2007. ( See State's Lodging E-4 at 6.)
C. Probation Revocation
Meanwhile, Petitioner was having a difficult time abiding by the terms of his probation. On August 15, 2007, while Petitioner's direct appeal was pending, his probation officer filed a report of probation violation. (State's Lodging A-1 at 106-07.) At his probation revocation hearing, Petitioner admitted that he had changed his residence without the written permission of his probation officer in violation of the terms of his probation. (State's Lodging A-3 at 4-5.) The court decided not to revoke Petitioner's probation, but did impose additional probation terms. ( Id. at 12; State's Lodging A-1 at 113-14.)
Petitioner again violated his probation by failing to attend two of his appointments with a psychologist, which his probation officer reported on October 30, 2007. (State's Lodging A-1 at 119-20.) Shortly afterwards, on November 9, 2007, Petitioner was civilly committed to the Eastern Idaho Regional Behavioral Health Center (BHC) for depression and suicidal ideation. (State's Lodging E-4 at 6.) At the December 31, 2007 hearing on the probation violation, the trial court again decided to allow Petitioner back out on probation. (State's Lodging A-3 at 90-93.) It appears from the record that Petitioner was released from the commitment on the day of the hearing. ( See State's Lodging A-3 at 37, 62 (Petitioner stating during hearing that (1) he had been staying at the BHC "for treatment" for the past several weeks and (2) "[t]hey discharged me today"); id. at 54-55 (Petitioner's counsel stating that Petitioner's case manager "indicated that as far as the civil commitment was concerned, they were ready to release him on that commitment, " that Petitioner was not on any medication, and that "adult mental health here in Bingham County... [has] an aftercare plan set up for him"); id. at 82-83 (Petitioner acknowledging that he had "a place to go tonight, " and the court ordering Petitioner "not to leave" his apartment)).
Petitioner committed a third probation violation in January 2008 by, among other things, consuming alcohol. ( Id. at 98-99.) This time, on February 1, 2008, the court revoked Petitioner's probation, but retained jurisdiction for up to 180 days and imposed a rider. (State's Lodging A-1 at 150-51.) Petitioner, proceeding pro se, filed a notice of appeal on March 5, 2008. ( Id. at 153-56.)
D. Motion to Withdraw Guilty Plea
On April 11, 2008, while his probation revocation appeal was pending, Petitioner filed a motion to withdraw his guilty plea in the state district court. (State's Lodging F-1 at 151-53.) He claimed that (1) the plea agreement was violated, apparently because he received additional prison time following the revocation of his probation; (2) at the time of his sentencing, he was under the influence of prescription drugs and was suffering from mental health problems; and (3) Parmenter was ineffective for failing to pursue Petitioner's direct appeal. ( Id. at 152.) Petitioner did not raise the issue of the withheld judgment. ( Id.; see also State's Lodging A-4 at 6-7.)
It was the state district court itself that recognized its failure to grant the withheld judgment in accordance with the binding plea agreement. (State's Lodging A-4 at 7.) The court gave the parties an opportunity to brief the issue. The court also granted in part Petitioner's motion to dismiss his new counsel; Petitioner was allowed to represent himself "in a co-counsel sort of situation." ( Id. at 30; see also State's Lodging F-2 at 320.) That is, the court would accept Petitioner's pro se filings even though his attorney was still counsel of record. (State's Lodging A-4 at 30.)
On September 4, 2008, the trial court denied Petitioner's motion as untimely, noting that "Woodley filed his Motion to Withdraw Plea ten and one-half... months after this Court pronounced sentence and only after this Court revoked Woodley's probation following the State's third Report of Violation. (State's Lodging F-2 at 302, 307-08.) The trial court explained that its jurisdiction to consider a motion to withdraw a guilty plea "expires once the judgment becomes final, either by expiration of the time for appeal or by affirmance of the judgment on appeal." ( Id. at 308.) Because Petitioner failed to file his motion within that time period, he could not withdraw his guilty plea. With respect to the failure to pursue direct appeal, the court found that Petitioner, rather than Parmenter, was responsible for the dismissal because he failed to pay Parmenter and did not keep in contact with him. ( Id. at 309.) No appeal was filed.
Also on September 4, 2008, the trial court relinquished jurisdiction and imposed Petitioner's original sentence. This decision was "[b]ased upon Woodley's repeated failures on probation and his inability to apply the information he learned in his programs while incarcerated" on the rider. ( Id. at 326.)
E. Motion for Reduction of Sentence On September 24, 2008, Petitioner filed a motion for reduction of sentence under
Rule 35 of the Idaho Rules of Criminal Procedure. ( Id. at 332-35.) The court held a hearing and denied the Rule 35 motion on November 10, 2008. ( Id. at 350; see also State's Lodging A-4 at 121.)
Petitioner's appeal from the denial of the Rule 35 motion was evidently consolidated with his pending probation revocation appeal, and Petitioner was appointed counsel. Counsel's brief challenged the revocation of probation, the trial court's decision to relinquish jurisdiction, and the denial of Petitioner's Rule 35 motion. (State's Lodging C-1 at 5.) According to Petitioner, appellate counsel "refused to include [the motion to withdraw the guilty plea] in the [a]ppeal [brief], despite the Petitioner's written and oral requests." (Sec. Am. Pet. at 4.)
The Idaho Court of Appeals affirmed in all respects on June 24, 2009. (State's Lodging C-8.) The Idaho Supreme Court denied review on July 30, 2009, and the remittitur issued on ...