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Avila v. Reinke

United States District Court, D. Idaho

August 20, 2014

HECTOR AVILA, Petitioner,
v.
BRENT REINKE and LAWRENCE WASDEN, Respondents.

MEMORANDUM DECISION AND ORDER

EDWARD J. LODGE, District Judge.

Pending before the Court is Respondents' Motion for Summary Dismissal (Dkt. 21.) Respondents contend that Petitioner Hector Avila filed his Petition for Writ of Habeas Corpus beyond the statute of limitations expiration date and that the Petition should be dismissed with prejudice. (Dkt. 21.) Petitioner has filed a Response, and Respondents have filed a Reply. (Dkts 27, 28.)

Having fully 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 will 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.

REVIEW OF MOTION FOR SUMMARY DISMISSAL

1. Procedural History

The procedural history relevant to the statute of limitations defense is as follows. Petitioner was convicted by jury of attempted first degree murder and unlawful possession of a firearm. (State's Lodging A-1, p. 146-49.) On direct appeal, Petitioner brought one claim, that his constitutional right to a speedy trial was violated. (State's Lodging B-1.) The Idaho Court of Appeals affirmed the conviction, and the Idaho Supreme Court denied Petitioner's petition for review on March 13, 2007. (State's Lodgings B-3 to B-7.)

With the aid of counsel, Petitioner filed a state post-conviction relief petition on March 7, 2008, bringing a claim of ineffective assistance of trial counsel. (State's Lodgings C-1, C-3.) The state district court summarily dismissed the petition, and judgment was entered on July 26, 2010. (State's Lodgings C-6, C-7.)

Petitioner did not file a notice of appeal within the 42-day deadline, but filed one on October 7, 2010, over 60 days after the state district court issued its order dismissing the case. (State's Lodging D-1.) The late filing was due to an oversight in his attorney's office, caused by a miscommunication among office staff. As a result of the late filing, the Idaho Supreme Court dismissed Petitioner's appeal on November 17, 2010, and issued its remittitur on December 10, 2010. (State's Lodgings D-3, D-4.)

Petitioner filed his federal Petition for Writ of Habeas Corpus in this action on October 7, 2011. (Dkt. 1.) Because Petitioner filed a successive post-conviction action in state court on April 16, 2012 (State's Lodging E-1) during the pendency of this action, this federal matter was stayed pending completion of additional state court proceedings. (Dkt. 11.)

Petitioner's successive post-conviction relief petition, asserting that counsel in his first post-conviction action was ineffective for failing to file a notice of appeal from the order of dismissal in that case, was dismissed as untimely. (State's Lodging E-6 to E-8.) Petitioner did not file a notice of appeal.

This Court re-opened the federal habeas corpus matter when it received notice that Petitioner's state court proceedings had concluded. (Dkt. 13.) Petitioner filed the Amended Petition, upon which he is proceeding. (Dkt. 18.)

2. Standard of Law

Rule 4 of the Rules Governing § 2254 Cases authorizes the Court to summarily dismiss a petition for writ of habeas corpus 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." The Court may also take judicial notice of relevant state court records in determining whether to dismiss a petition. Fed.R.Evid. 201(b); Dawson v Mahoney, 451 F.3d 550, 551 (9th Cir. 2006). Where appropriate, a respondent is permitted to file a motion for summary dismissal, rather than an answer. White v. Lewis, 874 F.2d 599, 602 (9th Cir. 1989).

The Antiterrorism and Effective Death Penalty Act (AEDPA) requires a petitioner to seek federal habeas corpus relief within one year of several triggering events, the most common being "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A); Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (applying Federal Rule of Civil Procedure 6(a) to the AEDPA statute of limitations, which means that the calculation excludes the day the conviction became final, e.g., a June 19, 1997 finality date yields a June 19, 1998 expiration date (equal to 366 days)).

Interpreting subsection § 2244(d)(1)(A), the Supreme Court of the United States has determined that the term "by the conclusion of direct review or the expiration of the time for seeking such review" is to be calculated "by reference to a uniform federal rule." Clay v. United States, 537 U.S. 522, 531 (2003). Even though a state rule may extend "finality" through the date an appellate court's mandate or remittitur is issued, that date is not the date of finality under the federal statute; rather, finality is measured from the date the order or judgment is issued. Wixom v. Washington, 264 F.3d 894, 897, 898 n.4 (9th Cir. 2001) ("a mandate is not a decision terminating review, '" rather, "the denial of his appeal is a decision terminating review").

Under the second prong of § 2244(d)(1)(A), "finality" is the "expiration of the time for seeking such review, " which means that the judgment becomes final when the time for pursuing direct review at the next level of the state court system or in the United States Supreme Court expires, without petitioner having sought further review. Id. at 653-54.

The relevant time periods for the expiration of the time for seeking review are as follows. Idaho Appellate Rule 14 provides that an appeal from the district court must be filed within 42 days from the date of an appealable order or judgment. Idaho Appellate Rule 118 provides that a petition for review to request that the Idaho Supreme Court review an opinion or order of the Court of Appeals must be filed within 21 days "after the announcement of the opinion or order, or after the announcement of an order denying rehearing, or after the announcement of an opinion on rehearing or after an opinion is modified without rehearing in a manner other than to correct a clerical error." United States Supreme Court Rule 13 provides that a petition for writ of certiorari must be filed with the United States Supreme Court within 90 days of a judgment entered by a state court of last resort. Hence, failure to file a notice of appeal, petition for review, or petition for writ of certiorari within the applicable time period triggers finality for purposes of § 2244(d)(1)(A).

AEDPA also contains a "tolling" provision that halts or suspends the running of the one-year limitation period during the time in "which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending."[1] 28 U.S.C. § 2244(d)(2). An application is "properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings, " such as those that prescribe "the form of the document, the time limits upon its delivery, ...


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