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Hibbert v. Wengler

United States District Court, D. Idaho

April 10, 2014

RICHARD HIBBERT, Petitioner,
v.
TIMOTHY WENGLER, Respondent.

MEMORANDUM DECISION AND ORDER

EDWARD J. LODGE, District Judge.

Pending before the Court is Petitioner Richard Hibbert's Petition for Writ of Habeas Corpus. (Dkt. 3.) Respondent has filed a Motion for Summary Dismissal. (Dkt. 11.) Petitioner has filed a Motion Not to Dismiss Action, which the Court construes as Petitioner's response to the Motion for Summary Dismissal. (Dkt. 13.) The Court takes judicial notice of the records from Petitioner's state court proceedings, lodged by Respondent on November 18, 2013. (Dkt. 10.) 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 oral argument is unnecessary. D. Idaho Loc. Civ. R. 7.1(d). Accordingly, the Court enters the following Order granting Respondent's Motion for Summary Dismissal and dismissing this case with prejudice.

BACKGROUND

In June 1994, Petitioner pleaded guilty in the Fifth Judicial District of the State of Idaho, in Minidoka County, to one count of lewd conduct with a minor under the age of sixteen, in violation of Idaho Code § 18-1508, stemming from Petitioner's sexual abuse of his daughter. (State's Lodging B-4 at 1.) As part of the plea agreement, the prosecution agreed to recommend a 15-year term of imprisonment with 10 years fixed. (State's Lodging A-1 at 57-58.) The plea agreement and the prosecution's recommended sentence were not binding on the court. ( Id. )

The trial court imposed a fixed life sentence. The court's decision was based on many aggravating factors, such as the fact that Petitioner kept his daughter as a prisoner in her own home, that he repeatedly forcibly raped her, and that he threatened to kill her, as well as several other people. (State's Lodging B-4 at 3.) At one point, Petitioner smuggled a knife into the courtroom and said it was for the prosecutor. ( Id .) After carefully considering these factors, as well as several mitigating factors, the trial court found "to a high degree of certainty that, in fact, [Petitioner] would re-offend, including the possibility of killing his daughter." ( Id. )

The Idaho Court of Appeals affirmed the conviction and sentence on July 7, 1995. ( Id. ) Petitioner did not file a petition for review with the Idaho Supreme Court, and the remittitur issued on July 31, 1995.

On January 16, 1998, Petitioner filed a petition for postconviction relief in the trial court. (State's Lodging C-1, D-1 at 62-67.) The state filed a motion for summary judgment, which the court granted on March 24, 1998. ( Id. ) Petitioner did not appeal the dismissal of his postconviction petition.

It appears that, on May 2, 2000, Petitioner may have attempted to file a successive petition for postconviction relief in state court. The record is unclear on this point. Although Petitioner evidently attached this May 2000 petition to a later successive petition, the attachment does not bear a file stamp showing that it was received by the state district court. (State's Lodging D-1 at 6-24.)

After this attempt to challenge his conviction, Petitioner waited over seven years before he filed another successive postconviction petition on February 27, 2008. ( Id . at 4.) The state trial court dismissed the successive petition, and the Idaho Court of Appeals affirmed, concluding that the petition was untimely. ( Id. at 165-76; State's Lodging E-11 at 4.) Petitioner did not petition the Idaho Supreme Court for review, and the remittitur issued on March 8, 2011.

Over a year later, in May 2012, Petitioner filed a motion for correction or reduction of sentence under Idaho Criminal Rule 35. (State's Lodging F-1 at 1-6.) The trial court denied the motion. ( Id. at 21-24.) The Idaho Court of Appeals affirmed. (State's Lodging G-4.) Petitioner filed a petition for review with the Idaho Supreme Court, which denied the petition and issued the remittitur on February 28, 2013. (State's Lodging G-6, G-7.)

Petitioner filed the instant federal Petition, at the earliest, on June 7, 2013. See Houston v. Lack, 487 U.S. 266, 270-72 (1988) (holding that if a prisoner is entitled to the benefit of the mailbox rule, a legal document is deemed filed on the date a Petitioner delivers it to the prison authorities for filing by mail, rather than the date it is actually filed with the clerk of court); Rule 3(d) of the Rules Governing Section 2254 Cases. Petitioner raises three claims, which have been construed by the Court as follows: (1) that Petitioner's guilty plea was not knowing and voluntary; (2) that his sentence violates the Eighth Amendment; and (3) that he received ineffective assistance of counsel. (Dkt. 3 at 6-8; Dkt. 6 at 3.)

Respondent now moves for summary dismissal of the Petition, arguing 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 Petition was filed after the one-year statute of limitations had already run. See 28 U.S.C. § 2244(d). Because Petitioner is not ...


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