United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Honorable Ronald E. Bush United States Magistrate Judge.
before the Court is Petitioner Victor Villasenor's
Petition for Writ of Habeas Corpus. (Dkt. 3.)
has filed a Motion for Summary Dismissal, arguing that the
Petition is barred by the one-year statute of limitations,
that Petitioner's claims are procedurally defaulted, and
that Claim 2 is noncognizable. (Dkt. 13.) The Court takes
judicial notice of the records of Petitioner's state
court proceedings. See Fed. R. Evid. 201(b);
Dawson v Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).
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. 10.) 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 the Petition with prejudice as untimely.
pleaded guilty in the Seventh Judicial District Court in
Bingham County, Idaho, to felony driving under the influence.
The judgment of conviction was entered on September 18, 2009.
(State's Lodging A-1 at 79-82.) Petitioner received a
suspended sentence of ten years in prison with six years
fixed and was placed on probation. (Id.) Petitioner
did not file a direct appeal.
probation was revoked and he was placed on a rider while the
trial court retained jurisdiction. (Id. at 129-30.)
The court later relinquished jurisdiction and ordered
execution of the underlying sentence. (Id. at
132-33.) In this habeas action, Petitioner is not challenging
either his probation revocation or the trial court's
decision to relinquish jurisdiction.
December 1, 2010, Petitioner filed a motion for reduction of
sentence, or a motion for reconsideration, under Idaho
Criminal Rule 35, arguing that his sentence was excessive.
(Id. at 136.) The trial court denied the motion on
March 9, 2011. (Id. at 142.) Over four years later,
Petitioner filed a second Rule 35 motion, which the state
district court denied. (Id. at 147-53, 158-61.)
Instead of appealing that decision, Petitioner filed a
“Petition for Writ of Supervisory Control”
directly with the Idaho Supreme Court. (Dkt. 3-1 at 1-23.)
The Idaho Supreme Court denied the petition on January 6,
2016. (Dkt. 3-3.)
Petitioner's second Rule 35 motion was pending, he also
filed a petition for state postconviction relief, which was
dismissed on March 1, 2016. (State's Lodging B-1.)
Petitioner did not appeal that dismissal.
filed his Petition in this Court, at the earliest, on
February 23, 2016.
asserts two claims:
Claim 1: Ineffective assistance of trial counsel based on
counsel's failure to file a motion to suppress evidence
obtained from an illegal blood test. Petitioner may also be
asserting that the blood test violated his right to due
process or his right to be free from unreasonable searches
Claim 2: Improper dismissal of Petitioner's Rule 35
motion on the grounds that the motion was a ...