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Kimsey v. Bennett

United States District Court, D. Idaho

September 22, 2014

CHRISTOPHER JAY KIMSEY, Petitioner,
v.
KENNETH BENNETT, Respondent.

MEMORANDUM DECISION AND ORDER

RONALD E. BUSH, Magistrate Judge.

Pending before the Court is Petitioner Christopher Jay Kimsey's Petition for Writ of Habeas Corpus. (Dkt. 3.) Respondent has filed a Motion for Summary Dismissal, seeking dismissal of the Petition with prejudice. (Dkt. 61.) Petitioner has also moved to dismiss this action, but he asks that the dismissal be without prejudice. (Dkt. 63.) Petitioner has also filed a Motion for Equitable Estoppel (Dkt. 59), in which Petitioner seeks a continuance.

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. § 636(c). (Dkt. 19.) 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 and dismissing this case with prejudice.

BACKGROUND

1. State Court Proceedings

Pursuant to a plea agreement, Petitioner pleaded guilty in the First Judicial District of the State of Idaho, in Kootenai County, Idaho, to aggravated assault on a law enforcement officer in violation of Idaho Code § 18-905. (State's Lodging C-15 at 1.) In exchange for the guilty plea, the prosecutor dismissed a sentencing enhancement charge. (State's Lodging A-5.) On January 14, 2009, Petitioner was sentenced to a unified sentence of six years in prison with two years fixed. (State's Lodging A-6.) Petitioner did not appeal from his conviction or sentence.

No earlier than August 8, 2011, [1] Petitioner filed a state petition for postconviction relief. (State's Lodging B-15 at 1-5.) On November 1, 2011, the state district court dismissed the petition as untimely. ( Id. at 35-39.) Petitioner appealed, but the appeal was initially dismissed due to a procedural error by the Idaho Supreme Court. (Dkt. 37.)

Petitioner's postconviction appeal was later reopened on motion by the State. The Idaho Court of Appeals affirmed the trial court's dismissal of Petitioner's postconviction petition because the petition was not filed within Idaho's one-year statute of limitations governing postconviction petitions-a determination not challenged by Petitioner during the appeal. (State's Lodging C-15.) Petitioner filed a petition for rehearing, which was denied. (State's Lodging C-16, C-17, & C-18.) Petitioner did not petition the Idaho Supreme Court for review, and the Idaho Court of Appeals issued its remittitur on May 6, 2013. (State's Lodging C-19.)

2. Federal Procedural History

Petitioner filed the instant federal habeas Petition, at the earliest, on June 7, 2011. (Dkt. 3.) This Petition is Petitioner's fourth habeas corpus petition filed in this Court. See Kimsey v. Bennett, Case No. 1:10-cv-00544-CWD (voluntarily dismissed Jan. 14, 2011); Kimsey v. Blades, Case No. 1:11-cv-00046-REB (two petitions) (voluntarily dismissed July 5, 2011). The Court previously notified Petitioner that he would not be permitted to dismiss this Petition voluntarily without prejudice, but rather must pursue it to completion.[2] (Dkt. 9, 16.)

Petitioner asserts the following claims in his Petition: (1) that his Fifth Amendment rights were violated when certain statements that he made "to further investigations" were "misapplied to [his] prosecution"; (2) that he was deprived of his Sixth Amendment right to a jury trial because he waived that right under duress; and (3) that he did not receive a copy of the judgment of conviction and was not otherwise notified of his right to file a direct appeal. (Dkt. 3. at 2-3.)

This action was stayed for a time to allow Petitioner to return to state court and has since been reopened. The Court previously allowed Petitioner an opportunity to request that counsel be appointed to represent him. (Dkt. 37 at 4-5.) Petitioner elected to proceed without appointed counsel. ( See Notice to Proceed with Continued Pro Se Counsel, Dkt. 40.) Respondent now seeks summary dismissal of the Petition.

DISCUSSION

Respondent contends that Petitioner's claims are barred by the statute of limitations and are procedurally defaulted. (Dkt. 61-1.) The Court need not address Respondent's procedural default argument. The Petition was filed after the one-year statute of limitations had already expired. 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 ...


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