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Foss v. Yordy

United States District Court, D. Idaho

May 26, 2017



          Honorable Candy W. Dale, United States Magistrate Judge

         Pending before the Court is a Petition for Writ of Habeas Corpus filed by Idaho state prisoner Christopher Thomas Foss (“Petitioner” or “Foss”), challenging Petitioner's state court convictions. (Dkt. 1.) Respondent has filed a Motion for Summary Dismissal, arguing that the Petition is barred by the one-year statute of limitations and that the claims in the Petition are procedurally defaulted. (Dkt. 15.) The Motion is now ripe for adjudication.

         The Court takes judicial notice of the records from Petitioner's state court proceedings, which have been lodged by Respondent. (Dkt. 12.) See Fed. R. Evid. 201(b); Dawson v Mahoney, 451 F.3d 550, 551 n.1 (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 this case with prejudice as untimely.


         In the Fifth Judicial District Court in Cassia County, Idaho, Petitioner pleaded guilty to voluntary manslaughter, as well as to a sentencing enhancement for use of a weapon during the commission of a felony. (State's Lodging A-1; A-2.) Petitioner was sentenced to a unified term of thirty years in prison with fifteen years fixed. (State's Lodging A-1 at 2; A-3 at 24.) The judgment of conviction was entered on April 21, 2009. (State's Lodging A-1 at 3.) On May 20, 2009, Petitioner filed a motion for reduction of sentence under Idaho Criminal Rule 35. (Id.) The trial court denied the motion on June 11, 2009. (Id.) Petitioner did not file a direct appeal. (State's Lodging A-1; Dkt. 1 at 2.)

         Petitioner returned to the Idaho district court. On March 31, 2010 (at the earliest), Petitioner filed a petition for post-conviction relief. (State's Lodging B-2 at 4.) See Munson v. State, 917 P.2d 796, 800 (Idaho 1996) (holding that a pro se inmate's postconviction petition is deemed filed on the date the petition is delivered to prison authorities for placement in the mail). The trial court dismissed the petition on July 26, 2011. (State's Lodging B-12.) Petitioner did not file an appeal. (State's Lodging B-1; Dkt. 1 at 3.)

         Petitioner filed his Petition in this Court, at the earliest, on June 21, 2016. See Rule 3(d) of the Rules Governing Section 2254 Cases (“Habeas Rules”); Houston v. Lack, 487 U.S. 266, 270 (1988) (holding that a legal document is deemed filed on the date a prisoner delivers it to the prison authorities for filing by mail, rather than the date it is received by the clerk of court). The Petition asserts the following claims:

Claim 1: Ineffective assistance of trial counsel based on counsel's failure to present a claim of self-defense during the preliminary hearing or at sentencing.
Claim 2: Ineffective assistance of counsel based on (a) trial counsel's failure to appeal Petitioner's sentence; and (b) post-conviction counsel's failure to file an appeal from the trial court's dismissal of Petitioner's post-conviction petition.[1]
Claim 3: Denial of due process based on the trial court's refusal, during Petitioner's Rule 35 proceedings, to consider Petitioner's claim of self-defense.
Claim 4: Ineffective assistance of trial counsel during the pre-plea stage, based on counsel's advice to Petitioner regarding the guilty plea.

(Dkt. 1 at 5-8; Initial Review Order.)

         The Court previously reviewed the Petition and allowed Petitioner to proceed on his claims to the extent those claims “(1) are cognizable in a federal habeas corpus action, (2) were timely filed in this Court, and (3) were either properly exhausted in state court or subject to a legal excuse for any failure to exhaust in a proper manner.” (Dkt. 7 at 3.)


         The Habeas Rules authorize 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, ” as well as those records subject to judicial notice, “that the petitioner is not entitled to relief in the district court.” Habeas Rule 4; see Fed. R. Evid. 201(b); Dawson, 451 F.3d at 551 n.1. Where appropriate, a ...

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