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Dixon v. Yordy

United States District Court, D. Idaho

March 21, 2017

KEITH YORDY, Respondent.


          Honorable Ronald E. Bush Chief U.S. Magistrate Judge

         At issue in this federal habeas corpus action is Respondent's Motion for Summary Dismissal. The Motion is now fully briefed and ripe for a decision. (Dkt. 13, 15.) All parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 8.) See 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. Having completed a careful review of the record, and having considered the arguments of the parties, the Court enters the following Order.


         In 2006, Dixon was convicted of lewd conduct with a minor under sixteen, first degree kidnapping, misdemeanor possession of drug paraphernalia, and misdemeanor malicious injury to property, after a jury trial in the First Judicial District Court in Kootenai County, Idaho. The incident occurred at a Coeur d'Alene beach park. Petitioner was accused of grabbing and restraining a twelve-year-old girl, placing her on his lap, and touching her vagina. Petitioner has always contended that he is actually innocent.

         Petitioner's judgment of conviction was entered on July 19, 2006. After his conviction, Petitioner filed a direct appeal and three state post-conviction actions, none of which provided relief on his convictions or sentences.

         Petitioner brings the following claims in this action. Claim 1 is a Sixth Amendment ineffective assistance of trial counsel claim, consisting of the following subparts:

A. failure to file a notice of appeal, despite Petitioner's specific request;[1]
B. failure to call witnesses including: (1) Megan Griffitts, (2) the owner of Funtastic Foods, (3), Reuben Rodriguez, (4) Russell Giles, and (5) six employees of Diamond Parking and the City Park (Brian, Curtis, Jake, Heather, Tag, and Marie);
C. (i) failure to request a second evidentiary hearing after the first one was cancelled in February 2006, and (ii) failure to have Petitioner's clothing and telephone records admitted as evidence at trial;
D. failure to use a recorded interview to impeach witness Karisma Cronkite;
E. failure to poll the jury after the guilty verdict;
F. failure to inform Petitioner of his right to file an appeal;
G. wrongly informing Petitioner that he had no Fifth Amendment right to refuse to take a psychosexual evaluation;
H. failure to file a motion for change of venue;
I. failure to object to the prosecutor vouching for the credibility of two witnesses during closing argument;
J. failure to file a post-conviction appeal (post-conviction counsel);
K. (i) failure to have Petitioner's clothing examined for DNA evidence; (ii) failure to have his clothing submitted to the jury, so they could see the clothing did not fit the description of the witnesses (duplicative of (C)(ii) above);
L. failure to request a change of location from the jail building to a regular court room;
M. failure to have his medical records and arm examined by an expert to show that he had an injury so severe that it was a factual impossibility for him to have committed the crime; and
N. failure to spend adequate time to effectively represent Petitioner, including failure to prepare for trial, and failure to prepare Petitioner for his testimony at trial.

         Claim 2 is an allegation that Petitioner was denied the right to a fair trial when the trial court refused to allow Petitioner to call witnesses during trial. Claim 3 is that he was denied the right to a fair trial when the prosecutor refused to give Petitioner exculpatory evidence. Claim 4 is the denial of the right to a fair trial under a cumulative error theory.


         1. Standard of Law Governing Dismissal on Statute of Limitation Grounds

         When a petitioner's compliance with threshold procedural requirements is at issue, a respondent may file a motion for summary dismissal, rather than an answer. White v. Lewis, 874 F.2d 599, 602 (9th Cir. 1989). 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 takes judicial notice of the records from Petitioner's state court proceedings, which have been lodged by the parties. See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).

         The Antiterrorism and Effective Death Penalty Act (AEDPA) requires a petitioner to seek federal habeas corpus relief within one year from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.”[2] 28 U.S.C. § 2244(d)(1)(A). One year means 366 days, for example, from January 1, 2000, to January 1, 2001. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (applying Federal Rule of Civil Procedure 6(a) to AEDPA).

         Under 28 U.S.C. § 2244(d)(1)(A), the date of “finality” that begins the one-year time period is marked as follows, depending on how far a petitioner pursues his claim:

Action Taken

Finality Occurs

No appeal is filed after state district court order or judgment

42 days later, see Idaho Appellate Rule 14

Appeal is filed and Idaho Court of Appeals issues a decision, but no petition for review is filed with the Idaho Supreme Court

21 days later, see Idaho Appellate Rule 118

Appeal is filed and Idaho Supreme Court issues a decision or denies a petition for review of an Idaho Court of Appeals decision, and Petitioner does not file a petition for writ of certiorari with the United States Supreme Court

90 days later, see United States Supreme Court Rule 13

After Idaho Supreme Court issues a decision or denies a petition for review, Petitioner files a petition for writ of certiorari to the United States Supreme Court, and the petition is denied

Date of denial

After Idaho Supreme Court issues a decision or denies a petition for review, Petitioner files a petition for writ of certiorari to the United States Supreme Court, the petition is granted, and the United States Supreme Court issues a decision

Date of decision

         In each instance above, “finality” is measured from entry of the final judgment or order, not from a remittitur or mandate, which are mere formalities. Gonzales v. Thaler, 132 S.Ct. 641, 653 (2012); Clay v. United States, 537 U.S. 522, 529 (2003); Wixom v. Washington, 264 F.3d 894, 898 n.4 (9th Cir. 2001).

         Once a federal statute of limitations has expired, it cannot be reinstated or resurrected by a later-filed state court action. See Ferguson v. Palmateer, 321 F.3d 820, 822 (9th Cir. 2003) (“section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed”). However, the United States Supreme Court has established an exception for cases in which the state court grants the petitioner the right to file an out-of-time direct appeal; in that case, the federal habeas statute of limitations begins to run again from the new date of finality. Jimenez v. Quarterman, 555 U.S. 113, 116 (2009).

         AEDPA also contains a tolling provision that stops or suspends the one-year limitations period from running during the time in “which a properly filed application for State postconviction or other collateral review . . . is pending.” 28 U.S.C. § 2244(d)(2). The federal statute of limitations is not tolled between the date of finality on direct appeal and the date the first collateral challenge is filed, because nothing is “pending” during that time. Thorson v. Palmer, 479 F.3d 643, 646 (9th Cir. 2007).

         To warrant tolling, the collateral relief application must be “properly filed, ” meaning that it conforms to state rules governing conditions to filing, including timeliness. Pace v. DiGuglielmo, 544 U.S. 408 (2005). A state collateral relief application is considered “pending” under § 2244(d)(2) until “the application has achieved final resolution through the State's post-conviction procedures.” Carey v. Saffold, 536 U.S. 214, 220 (2002). Whether an application remains “pending” under § 2244(d)(2) depends on the state's interpretation of finality. See Id. at 223 (“Ordinarily, for purposes of applying a federal statute that interacts with state procedural rules, we look to how a state procedure functions, rather than the particular name that it bears”); White v. Klitzkie, 281 F.3d 920, 924 n.4 (9th Cir. 2002) (it is the state appellate court decision, not the mandate, that signals conclusion of review for § 2244(d)(2) purposes, unless (as in Idaho and California) the state has a rule that extends the time when the decision of the state appellate court becomes final).

         In Idaho, an appellate case remains pending until a remittitur is issued. See Cochran v. State, 984 P.2d 128, 129 (Idaho Ct. App. 1999), and so, for federal purposes, a collateral relief application is deemed “pending” through the date of the remittitur. See Jefferson v. Budge, 419 F.3d 1013, 1015 n.2 (9th Cir. 2005). “Pending” does not include the time period for filing a petition for writ of certiorari before the United States Supreme Court to challenge denial of a collateral review petition. Lawrence v. Florida, 549 U.S. 327, 337 (2007). Finally, each time statutory tolling ends, the statute of limitations does not restart at one year, but begins running at the place where it stopped before the post-conviction action was filed.

         2. Facts Important to Timeliness Issue

         After conviction, Petitioner filed a direct appeal challenging his sentence, and the Idaho Court of Appeals affirmed. The Idaho Supreme Court denied Petitioner's petition for review on August 8, 2007.

         On July 28, 2008, Petitioner filed a first state post-conviction petition. The judgment denying relief in that matter was entered on April 12, 2011. Petitioner's attorney did not file a notice of appeal from the order of dismissal, but instead filed a Rule 60(b) motion in that action many months later, on October 5, 2011. (State's Lodging G-10.) For purposes of the federal habeas statute of limitations, this late filing of the Rule 60(b) motion resulted in a six-month time frame in which no collateral matter was pending in state court. The Rule 60(b) motion was denied, and Petitioner filed a timely appeal from denial of the motion.

         Petitioner's counsel's failure to file a notice of appeal in the post-conviction action did not go unnoticed. During the 42-day appeal time (set to end May 24, 2011), Petitioner himself determined that a notice of appeal should be filed, and so on May 13, 2011, he tried to obtain help from prison officials to prepare the filing.

         Petitioner's concern form was apparently misrouted to the chaplain; as a result, Petitioner received no help from the prison during the time to appeal. After the appeal deadline passed, Petitioner found another inmate to help him and later filed a pro se notice of appeal that was determined to be untimely. The Idaho Supreme Court notified Petitioner that his post-conviction appeal was going to be dismissed, and Petitioner filed a response, blaming his counsel for the untimely notice. The Idaho Supreme Court dismissed the post-conviction appeal on September 8, 2011, and remittitur was entered on November 3, 2011. (See State's Lodgings C-1 to D-4.)

         Meanwhile, the Rule 60(b) motion was denied, and counsel filed a notice of appeal. During pendency of the Rule 60(b) appeal arising from the first post-conviction matter, Petitioner filed a successive post-conviction action on March 27, 2012, wherein he successfully obtained a stipulated judgment requiring re-entry of the judgment in his first post-conviction action, effectively reinstating his appeal rights in that collateral action, on November 27, 2012. (State's Lodgings F-1 to F-8.) Petitioner then filed an appeal, which was consolidated with the appeal of his 60(b) motion. He obtained no relief in that action, and his state court appeals concluded with denial of the petition for review and issuance of the remittitur on December 12, 2014. (State's Lodgings G-1 to G-19.)

         3. Discussion of Timeliness

         For purposes of this timeliness discussion, the Court repeats those historical facts that relate to the calculation of Petitioner's federal statute of limitations. Petitioner's direct appeal concluded in the Idaho Supreme Court on August 8, 2007. He did not file a petition for writ of certiorari with the United States Supreme Court; thus his conviction became final at end of the 90-day period, on November 6, 2007.

         The federal statute of limitations began on November 6, 2007, the date of finality. It continued running for 265 days, until Petitioner filed his first post-conviction petition on July 28, 2008.

         The statute of limitations was tolled from July 28, 2008, through at least the date Petitioner's post-conviction action was denied by order of the state district court, on April 12, 2011. (State's Lodging C-1, p. 103.) Respondent argues that because the appeal in that action was determined to be untimely filed, no statutory tolling during the pendency of the appeal was warranted. “The time that an application for state postconviction review is ‘pending' includes the period between (1) a lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law.” Evans v. Chavis, 546 U.S. 189, 191 (2006) (emphasis added). That is, when an appeal is untimely, none of the appellate filings will statutorily toll the federal statute of limitations.

         Petitioner argues that, because his appeal rights in the first post-conviction action were later reinstated, an additional statutory tolling period should be afforded him, which would bridge the gap between the district court's decision in the first post-conviction action and the filing of the Rule 60(b) motion, after which Plaintiff's state court action was continuously pending until ...

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