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Colon v. Reinke

United States District Court, D. Idaho

May 28, 2014

JOSEPH COLON, Petitioner,
v.
BRENT REINKE, Respondent.

MEMORANDUM DECISION AND ORDER

CANDY W. DALE, Magistrate Judge.

Pending before the Court is Petitioner Joseph Colon's Amended Petition for Writ of Habeas Corpus. (Dkt. 7.) Respondent has filed a Motion for Summary Dismissal of the Petition. (Dkt. 16.) Petitioner has filed a response, which incorporates the arguments in Petitioner's initial state postconviction petition. (Dkt. 22 & 22-1.) The Court takes judicial notice of the records from Petitioner's state court proceedings, lodged by Respondent on August 14, 2014. (Dkt. 14.) See Fed.R.Evid. 201(b); Dawson v. Mahoney , 451 F.3d 550, 551 (9th Cir. 2006).

The parties have consented to the jurisdiction of a United States Magistrate Judge to conduct all proceedings in this case in accordance with 28 U.S.C. ยง 636(c). (Dkt. 12.) 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. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order granting the Motion for Summary Dismissal and dismissing this case with prejudice as untimely.

BACKGROUND

Pursuant to a plea agreement, Petitioner pleaded guilty, in the Fourth Judicial District of the State of Idaho in Ada County, to two counts of lewd conduct with a minor under the age of sixteen in violation of Idaho Code Section 18-1508. (State's Lodging A-1 at 22-30, 35-37; A-2 at 1-10.) In exchange for the guilty plea, the state dismissed two other charges against Petitioner. (State's Lodging A-2 at 8.) Petitioner was sentenced on both counts to a concurrent unified sentence of life imprisonment with twenty years fixed. (State's Lodging A-1 at 35-37.) The judgment of conviction was entered on September 27, 2007. ( Id. ) Petitioner did not file a direct appeal from his conviction or sentence.

On October 19, 2007-before the expiration of the time for filing a direct appeal-Petitioner filed a motion for reduction of sentence under Idaho Criminal Rule 35. ( Id. at 39-42.) The trial court denied the motion. ( Id. at 65-67.) Petitioner appealed, and the Idaho Court of Appeals affirmed. (State's Lodging B-4.) The Idaho Supreme Court denied Petitioner's petition for review, and the remittitur issued on March 13, 2009. (State's Lodging B-7.)

Petitioner filed a pro se petition for postconviction relief in the state district court on March 4, 2010. (State's Lodging C-1 at 5-13.) The court appointed counsel to represent Petitioner, and an amended petition was later filed, asserting several claims of ineffective assistance of trial counsel. ( Id. at 58-61.) The trial court summarily dismissed some of the claims, but held an evidentiary hearing on the others. ( Id. at 114; State's Lodging C-3 at 18-26.) After the evidentiary hearing, at which both Petitioner and trial counsel testified, the court concluded that trial counsel's testimony was credible and that Petitioner's testimony was not credible. (State's Lodging C-4 at 45-46.) The court dismissed the postconviction petition. (State's Lodging C-1 at 114.) The Idaho Court of Appeals affirmed the dismissal. (State's Lodging D-4.) The Idaho Supreme Court denied review on September 25, 2012, and the remittitur was issued the same day.

Petitioner filed his initial Petition in this Court, at the earliest, on January 24, 2013. (Dkt. 2.) 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 ("Habeas Rules"). Petitioner later filed an Amended Petition. (Dkt. 7.) He asserts five claims:

Claim One: Petitioner's sentence constitutes cruel and unusual punishment and therefore violates the Eighth Amendment to the United States Constitution.
Claim Two: Petitioner was deprived of due process when he was incarcerated in the Ada County Jail for 89 days.
Claim Three: Petitioner's Fifth Amendment privilege against self-incrimination was violated when he was ordered to undergo a psychosexual evaluation for sentencing purposes, and/or trial counsel rendered ineffective assistance in violation of the Sixth Amendment by failing to advise Petitioner of his right, under Estrada v. State, 149 P.3d 833 (Idaho 2006), not to participate in the psychosexual evaluation.
Claim Four: Petitioner received ineffective assistance of trial counsel on numerous other grounds.
Claim Five: Petitioner's Fourth Amendment rights were violated when a probable cause hearing was not conducted ...

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