United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
B. LYNN WINMILL, Chief District Judge.
Pending before the Court is Petitioner Dwayne Robert Stephenson's Petition for Writ of Habeas Corpus. (Dkt. 1.) Respondent has filed a Motion for Summary Dismissal. (Dkt. 7.) Petitioner has filed a response to the Motion. (Dkt. 10). Respondent has filed a reply, and Petitioner has filed a sur-reply (Dkt. 13, 15.) The Court also ordered supplemental briefing with respect to Claim Four of the Petition and has considered the parties' supplemental briefs, along with all of their submissions in this case. Also pending before the Court is Petitioner's Motion for Application of Martinez v. Ryan . (Dkt. 11.) The Court takes judicial notice of the records from Petitioner's state court proceedings, lodged by Respondent on October 24, 2013. (Dkt. 6.) 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. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order granting Respondent's Motion for Summary Dismissal, denying Petitioner's Motion for Application of Martinez v. Ryan , and dismissing this case. Claims One, Two, Three and part of Four will be dismissed with prejudice as untimely, while the portion of Claim Four alleging a miscalculation of Petitioner's sentence will be dismissed without prejudice as unripe and unexhausted.
In 2005, pursuant to a plea agreement, Petitioner entered an Alford plea of guilty in the Fifth Judicial District of the State of Idaho, in Gooding County, to burglary in violation of Idaho Code § 18-1401. In exchange for Petitioner's plea, the state withdrew a persistent violator enhancement, as well as an escape charge against Petitioner that was pending in another county. (State's Lodging A-1 at 76-77.) The plea agreement did not encompass a separate weapons charge against Petitioner pending in Jerome County (based on Petitioner's possession of a shank in prison). ( Id .; see also State's Lodging A-2 at 33, where Petitioner acknowledged to the court he understood that the weapons charge was "not part of this deal"). Defendant later moved to withdraw his plea, but decided to withdraw the motion before the trial court ruled on it. ( Id. at 87-90.) Petitioner was sentenced to a fixed ten-year term of imprisonment, and judgment was entered on December 29, 2005. ( Id. at 95-101.) The sentence was to run consecutively to any sentence received in the shank case in Jerome County. ( Id. at 101; State's Lodging A-1 at 99.)
Petitioner filed a direct appeal, arguing that his sentence was excessive. (State's Lodging B-2.) The Idaho Court of Appeals affirmed. Petitioner filed a petition for review with the Idaho Supreme Court, which was denied on April 13, 2007. (State's Lodging B-6, B-8.) The remittitur issued that same day.
On February 13, 2012, Petitioner was notified by the Idaho Department of Correction (IDOC) that his sentence "had been incorrectly calculated." (Dkt. 1 at 7.) Although Plaintiff does not provide any specific facts surrounding this calculation in his Petition, the state court record suggests that the IDOC initially calculated Petitioner's sentences in three separate criminal cases as running concurrently. However, "while conducting an audit of [Petitioner's] sentence, " the IDOC determined that the sentences were supposed to run consecutively-as the sentencing judge in Gooding County had pronounced. (State's Lodging C-1 at 31, 121.) Thus, several years were added onto the date initially believed to be Petitioner's full-term release date.
On May 14, 2012, Petitioner filed a petition for postconviction relief in the state trial court in Gooding County, alleging (1) that his conviction and sentence violated the Double Jeopardy Clause of the Fifth Amendment; (2) that the prosecutor's sentencing recommendation violated the plea agreement; (3) that Petitioner's guilty plea was not knowing and voluntary; (4) that his due process rights were violated when the trial court did not impose a sentence that would concurrently with a sentence in another criminal case against Petitioner in a different county; (5) that the IDOC's alleged sentencing miscalculation violated due process; (6) that the parole board violated due process by not allowing Petitioner to "parole from one consecutive sentence to another"; and (7) that Petitioner's sentence was illegal. (State's Lodging C-1 at 7, 11, 13-14, 18, 21.)
The state court dismissed the postconviction petition as untimely because it was not filed within the one-year statute of limitations set forth in Idaho Code § 19-4902(a). ( Id. at 121.) The court also stated, "[T]o the extent that the petitioner argues that the Department of Corrections has miscalculated the time he must serve, the petitioner must file a petition for writ of habeas corpus" in Ada County, where Petitioner is imprisoned. ( Id. ) It does not appear from the record that Petitioner filed a state habeas petition in Ada County. Petitioner filed a motion for reconsideration, which the Gooding County court denied. ( Id. at 146-47.)
Petitioner appealed the dismissal of his postconviction petition. The Idaho Court of Appeals affirmed, agreeing that the petition was untimely, and the Idaho Supreme Court denied Petitioner's petition for review. (State's Lodging D-4, D-6.) The remittitur issued on June 12, 2013. (State's Lodging D-7.)
This Petition was filed, at the earliest, on June 25, 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 ("Habeas Rules"). Petitioner asserts four claims:
Claim One: That Petitioner was subjected to double jeopardy in violation of the United States Constitution because he had been previously convicted of grand theft stemming from the same incident that led to the burglary charge.
Claim Two: That as a result of the double jeopardy violation, the state trial court lacked subject matter jurisdiction to impose on Petitioner a sentence for burglary. In his supplemental brief, Petitioner also argues that the prosecutor breached the plea agreement.
Claim Three: That Petitioner received ineffective assistance of counsel when his attorney advised him to plead guilty notwithstanding Petitioner's expressed belief that the charge violated the Double Jeopardy Clause.
Claim Four: That Petitioner was denied due process when the IDOC miscalculated his sentence. In his supplemental brief, Petitioner also claims that he received ineffective assistance of counsel as to his sentence and that the trial court erred in imposing a consecutive sentence.
(Dkt. 1 at 4-7; Dkt. 18 at 6-10.)
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. Claims One, Two, Three, and part of Claim Four (asserting that he received ineffective assistance of counsel and that the trial court erred by imposing a consecutive sentence) were 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, Claims One, Two, Three, and part of Four are untimely and must be dismissed with prejudice.
In contrast to these claims, which were filed too late, the remainder of Claim Four-alleging a denial of due process based on a miscalculation of Petitioner's full-term release date-was filed too early and has not been fairly presented to the state courts. Therefore, this portion of Claim Four will be dismissed without prejudice.
1. Standard of Law Governing ...