MEMORANDUM DECISION AND ORDER
B. LYNN WINMILL, Chief District Judge.
Pending before the Court is Petitioner William Caldwell's Petition for Writ of Habeas Corpus (Dkt. 1). Respondent has filed a Motion for Summary Dismissal. (Dkt. 9). Petitioner has filed a response to the Motion (Dkt. 11). Respondent has filed a reply (Dkt. 12), and Petitioner has filed a sur-reply (Dkt. 13). The Court takes judicial notice of the records from Petitioner's state court proceedings, lodged by Respondent on April 15, 2013 (Dkt. 8). See 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 the Motion and dismissing the Petition with prejudice as untimely.
On September 20, 2006, Petitioner was charged in the First Judicial District Court in Kootenai County, Idaho, with nine counts of rape and one count of lewd conduct with a minor under sixteen, along with a persistent violator enhancement. (State's Lodging A-5.) Petitioner was later charged with conspiracy to commit first-degree murder, with another persistent violator enhancement. (State's Lodging B-3; B-6.) The two criminal cases were consolidated. (State's Lodging B-7.)
Most of the charges were dismissed pursuant to a plea agreement, and Petitioner pleaded guilty to one count of rape and one count of conspiracy to commit first-degree murder. (State's Lodging A-6; B-8.) The judgments of conviction were entered on June 26, 2007. (State's Lodging A-10; B-12.) Petitioner was sentenced to a unified term of life imprisonment with the first 13 years fixed on the rape count, and to a unified term of life imprisonment with the first 10 years fixed on the conspiracy count, the sentences to run concurrently.
Although Respondent claims that the plea agreement contained a waiver of Petitioner's right to appeal ( see, e.g., Dkt. 9-1 at 2), the copies of the agreement lodged with the Court show the appeal waiver as having been crossed out. (State's Lodging A-6; B-8.) Further, both criminal judgments state that Petitioner had the right to appeal. (State's Lodging A-10; B-12.) The Court will assume for purposes of this decision that Petitioner did not waive his right to appeal either his conviction or sentence. Nonetheless, Petitioner did not appeal.
On May 14, 2008, Petitioner filed a postconviction petition with the state district court. (State's Lodging C-2.) Petitioner's counsel later filed a motion for voluntary dismissal "because of the wishes of the Petitioner." (State's Lodging C-6.) The postconviction petition was dismissed on December 26, 2008. (State's Lodging C-7.) Petitioner did not file an appeal within the time limits established by Idaho law. Petitioner attempted to file a late appeal on June 19, 2012. (State's Lodging D-1.) The Idaho Supreme Court conditionally dismissed the appeal as untimely, but allowed Petitioner to show good cause for the untimely appeal. (State's Lodging D-2.) After Petitioner submitted a brief arguing that his postconviction counsel was ineffective and that he had not been notified of the dismissal of his postconviction petition (State's Lodging D-3), the Idaho Supreme Court entered a final order of dismissal on August 8, 2012. (State's Lodging D-4.)
Petitioner filed his federal Petition for Writ of Habeas Corpus, at the earliest, on August 24, 2012. Petitioner was allowed to proceed on his claims that trial counsel was ineffective for failing to file a direct appeal from Petitioner's conviction and sentence. (Initial Review Order, Dkt. 4, at 2-3.)
Respondent contends that Petitioner's claims are untimely and procedurally defaulted. The 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, the Court will dismiss the Petition with prejudice as untimely. Thus, the Court need not address Respondent's procedural default argument, nor Petitioner's contention that his procedural default is excused under Martinez v. Ryan, 132 S.Ct. 1309 (2012).
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 or claims contained in the petition when "it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." In ...