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Villasenor v. Blades

United States District Court, D. Idaho

February 3, 2017

VICTOR VILLASENOR, Petitioner,
v.
ISCC WARDEN BLADES, Respondent.

          MEMORANDUM DECISION AND ORDER

          Honorable Ronald E. Bush United States Magistrate Judge.

         Pending before the Court is Petitioner Victor Villasenor's Petition for Writ of Habeas Corpus. (Dkt. 3.)

         Respondent 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).

         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. 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.

         BACKGROUND

         Petitioner 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.

         Petitioner's probation was revoked and he was placed on a rider while the trial court retained jurisdiction.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.

         On 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.)

         While 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.

         Petitioner filed his Petition in this Court, at the earliest, on February 23, 2016.[1]

         Petitioner 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 and seizures.
Claim 2: Improper dismissal of Petitioner's Rule 35 motion on the grounds that the motion was a ...

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