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Griffith v. Blades

United States District Court, D. Idaho

August 16, 2017

CHRISTOPHER D. GRIFFITH, Petitioner,
v.
RANDY BLADES, Respondent.

          MEMORANDUM DECISION AND ORDER

          Hon. Candy W. Dale, United States Magistrate Judge

         Pending before the Court in this habeas corpus matter filed by Petitioner Christopher D. Griffith are several motions filed by the parties, including Respondent's Motion for Summary Dismissal based on procedural grounds. All 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. 12.)

         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). 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.

         PETITIONER'S MOTION TO ALLOW SUPPLEMENTAL PLEADING

         Petitioner filed a “Motion to Allow Supplemental Pleading” (Dkt. 20), which appears to have crossed in the mail with Respondent's Motion for Summary Dismissal. Thus, Respondent has not had opportunity to include a response to the new Supplement. Nevertheless, to the extent that the new Supplement addresses procedural issues, the Court has considered it. To the extent that the Supplement contains argument on the merits of Petitioner's claims, the filing is premature. Therefore, the Court will grant in part and deny in part the motion.

         PETITIONER'S MOTION FOR APPOINTMENT OF COUNSEL

         Petitioner has filed a Motion for Appointment of Counsel. (Dkt. 34.) There is no constitutional right to counsel in a habeas corpus action. Coleman v. Thompson, 501 U.S. 722, 755 (1991). A habeas petitioner has a right to counsel, as provided by rule, if counsel is necessary for effective discovery or if an evidentiary hearing is required in his case. See Rules 6(a) & 8(c) of the Rules Governing Section 2254 Cases. In addition, the Court may exercise its discretion to appoint counsel for an indigent petitioner in any case where required by the interests of justice. 28 U.S.C. § 2254(h); 18 U.S.C. § 3006A(a)(2)(B). Whether counsel should be appointed turns on a petitioner's ability to articulate his claims in light of the complexity of the legal issues and his likelihood of success on the merits. See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

         Petitioner is correct that the Court should and would appoint counsel for him if an evidentiary hearing was required under Martinez v. Ryan, 566 U.S. 1 (2012). However, the threshold issue in this case is whether the Petition in this matter has been timely filed. Because the timeliness issue is straightforward, the Court concludes that appointing counsel to aid Petitioner with the timeliness issue is not necessary. Presently, neither discovery nor an evidentiary hearing is needed. Therefore, Petitioner has not met the standards for appointment of counsel, and the motion will be denied.

         RESPONDENT'S MOTION TO DISMISS THE PETITION

         1. Standard of Law

         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 Antiterrorism and Effective Death Penalty Act (AEDPA) requires a petitioner to seek federal habeas corpus relief within one year from several triggering events set forth in the statute. 28 U.S.C. § 2244(d)(1)(A)-(D). Two of those triggers are at issue in this case-subsections (A) and (D).

         Subsection (A) provides that the one-year statute of limitations is measured 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.” 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

         Subsection (D) provides that the statute runs from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(d). To clarify, “[t]ime begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance.” Hasan v. Galaza, 254 F.3d 1150, 1154 (9th Cir. 2001) (citing Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000)).

         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). Because this particular statutory provision applies only to “pending” actions, the additional 21-, 42- and 90-day time periods associated with the calculation of finality after direct appeal are not applied to extend the tolling periods for post-conviction actions. However, unlike direct appeal “finality, ” the term “pending” does extend through the date of the remittitur.[1]

         The federal statute is not tolled between the date the direct appeal is “final” and the filing of a proper post-conviction application, or between post-conviction finality and any successive collateral review petition. Id. 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.

         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”).

         2. Background

         Petitioner was convicted of the first degree murder of two-year-old Tegan Rees in November of 2002. He was sentenced to life indeterminate, with a fixed term of 22 years to be served prior to parole eligibility.

         After conviction, Petitioner filed a direct appeal. The Idaho Court of Appeals affirmed Petitioner's conviction and sentence. The Idaho Supreme Court denied the petition for review on July 11, 2007. (State's Lodgings B-1 to B-10.) Petitioner did not file a petition for a writ of certiorari with the United States Supreme Court, and the judgment became final 90 days later, on October 9, 2007.

         On July 8, 2008, Petitioner, through counsel, filed a first post-conviction petition in the state district court. The petition was dismissed by a court order signed on September 18, 2009, and docketed on September 22, 2009. Petitioner did not file an appeal. (State's Lodgings C-1 to C-30.)

         On March 18, 2013, Petitioner filed a successive post-conviction petition. The petition was dismissed because it was untimely and barred by the successive petitions prohibition of I.C. § 19-4908. That decision was affirmed on appeal by the Idaho Court of Appeals on May 11, 2015. Petitioner filed a late petition for review, which ultimately was rejected by the Idaho Supreme Court. (State's Lodgings E-1 to E-15.)

         During the appeal of the successive post-conviction action, on February 3, 2014, Petitioner filed a Rule 35 motion to correct an illegal sentence, which was denied by the state district court. The Idaho Court of Appeals affirmed the denial of the motion on October 20, 2014. Petitioner did not file a petition for review, and the remittitur was issued on November 12, 2014.

         Petitioner filed his federal Petition for Writ of Habeas Corpus in this action on April 14, 2014 (mailbox rule). Because his successive post-conviction appeal was still pending in state court, this action was stayed between August 2014 and August 2016. (Dkts. 5, 9.) This case was re-opened upon completion of the state court matter.

         3. Discussion of Timeliness Issue

         Petitioner's petition for review on direct appeal was denied by the Idaho Supreme Court on July 11, 2007. Petitioner's federal statute of limitations period began on October 9, 2007, which marked the conclusion of the 90-day period during which Petitioner could have filed a petition for writ of certiorari with the United States Supreme Court. Because Petitioner waited so long to file his first post-conviction petition, until July 8, 2008, a total of 272 days of the federal statute of limitations period elapsed before tolling suspended the running of the statute with 94 days remaining (366 - 272 = 94).

         The federal statute of limitations began running again when Petitioner's post-conviction case was dismissed by the state district court, on September 22, 2009. “Pending” does not include the time during which a notice of appeal could have been filed-that extension applies only to direct appeal. “Pending” does include the time period through the issuance of an appellate court's remittitur if an appeal is filed. However, Petitioner did not file an appeal, and so there was no additional time during which his post-conviction action was “pending” beyond the district court's order of dismissal.

         The remaining 94 days of the federal statute of limitations expired on Friday, December 25, 2009, or, more precisely, the next business day thereafter, December 28, 2009, well before Petitioner filed his successive post-conviction action on March 18, 2013. The late filing of a state post-conviction action cannot resurrect a federal limitations period that has already expired. Therefore, Petitioner's federal petition, filed in 2014, was untimely by several years.

         Arguing that his statute of limitations should run from “the date on which the factual predicate of the claim … could have been discovered through the exercise of due diligence” under § 2244(d)(1)(d), Petitioner asserts that his federal statute of limitations did not begin to run until he had obtained an affidavit from Mr. Scott Lee Hill, because previously only Petitioner's counsel knew the “exact contents” of Mr. Hill's potential trial testimony. Petitioner states that his counsel told him conflicting things at the time of trial-that Mr. Hill's story both helped and hurt Petitioner's defense-and it was not until 2013 that Petitioner discovered that Mr. Hill's testimony would have been “very helpful” to Petitioner's defense. (Dkt. 20-1).

         This argument is not persuasive. At the time of trial, Petitioner knew that his counsel had given him conflicting advice about Mr. Hill's potential testimony. Petitioner could have obtained clarification from counsel or from Mr. Hill, who was an acquaintance of Petitioner, about which version was correct. This set of circumstances does not qualify for a later start date of the statute of limitations under § 2244(d)(1)(D).

         4. ...


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