MEMORANDUM DECISION AND ORDER
EDWARD J. LODGE, District Judge.
Pending before the Court is Petitioner Brandon Block's Petition for Writ of Habeas Corpus (Dkt. 3). Respondent has filed a Motion for Summary Dismissal. (Dkt. 10). Petitioner has filed a Motion and Brief Opposing Dismissal (Dkt. 12). Respondent has filed a Reply (Dkt. 14), and Petitioner has filed a Sur-reply (Dkt. 15). The Court takes judicial notice of the records from Petitioner's state court proceedings, lodged by Respondent on March 26, 2013, and April 24, 2013 (Dkt. 9, 13). Fed.R.Evid. 201(b); Dawson v Mahoney , 451 F.3d 550, 551 (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 granting Respondent' Motion and dismissing this case.
On June 9, 2008, Petitioner pleaded guilty in state court to lewd conduct with a minor under the age of 16, in violation of Idaho Code § 18-1508. Petitioner was sentenced to 20 years in prison with 6 years fixed. (State's Lodging C-5 at 1.) The court retained jurisdiction and placed Petitioner on a rider. On November 28, 2008, following completion of the rider, the court placed Petitioner on probation for a term of 20 years. ( Id. ; State's Lodging A-4.) Petitioner did not appeal his conviction or sentence.
After Petitioner violated his probation, the court revoked it and imposed Petitioner's underlying sentence. (State's Lodging A-5.) Petitioner filed a state postconviction petition on March 2, 2011, alleging ineffective assistance of counsel. The state district court dismissed the petition as having been filed beyond the statute of limitations period. ( Id .; State's Lodging B-1 at 58-60.)
The Idaho Court of Appeals affirmed. Because the postconviction petition was filed more than one year and 42 days after the trial court imposed probation, the petition was untimely pursuant to Idaho Code § 19-4902 and Idaho Appellate Rule 14. The court of appeals also held that Petitioner had not established a basis for tolling the statute of limitation. (State's Lodging C-5 at 2-3.) The Idaho Supreme Court denied review on August 1, 2012. (State's Lodging C-9, C-10.)
Petitioner filed the instant Petition for Writ of Habeas Corpus on August 22, 2012 (mailbox rule). He asserts the following claims: (1) that he was denied his Sixth Amendment right to effective assistance of counsel based on trial counsel's failure to take the case to trial or to procure a binding plea agreement under Idaho Criminal Rule 11; (2) that he was coerced to plead guilty based on trial counsel's alleged threat to Petitioner that counsel would divulge attorney-client privileged information; (3) that he was coerced to plead guilty based on trial counsel's alleged threat to charge Petitioner's mother with a crime; (4) that counsel was ineffective for failing to appeal Petitioner's conviction and sentence; (5) that counsel was ineffective for failing "to secure a plea agreement promised petitioner to a 2 year fixed plus 8 years indeterminate"; (6) that the sentencing judge was not justified in revoking Petitioner's probation; (7) that Petitioner's sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment; and (8) that the initial "counsel appointed to represent the petitioner disqualified himself without justification." (Pet. at 6-10.)
Respondent now moves for summary dismissal of the Petition.
Respondent contends that Petitioner's claims are barred by the statute of limitations and are procedurally defaulted. 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 not entitled to statutory tolling, (2) is not entitled to equitable tolling, and (3) has not made a colorable showing of actual innocence, the Court will dismiss the Second Amended Petition with prejudice as untimely.
1. Summary Dismissal Standard
Rule 4 of the Rules Governing § 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 face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." In ...