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Gerdon v. Wengler

United States District Court, D. Idaho

August 28, 2017

TIM WENGLER, Respondent.


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

         Pending before the Court is Respondent's Motion for Summary Dismissal. (Dkt. 23.) Rather than file a response to the Motion within the extension period he sought, Petitioner filed several motions, including a “Notice of Tainted Evidence, ” alleging that Respondent is relying on false evidence. The Court ordered Petitioner to identify each document that he believed was tainted or falsified, and either provide the true and correct document or state where it could be located. (Dkt. 37.) Petitioner has done so. (Dkt. 38.)

         The Court also ordered Petitioner to file a response to the pending Motion for Summary Dismissal simultaneously with his explanation regarding the tainted evidence. The Court explained:

Should the Court find that the “tainted evidence” issue affects the Motion for Summary Dismissal disposition and requires a hearing for resolution, the Court will set a hearing and provide Petitioner with additional time to respond to the motion after a hearing. Should the “tainted evidence” issue be meritless or moot, then the Court will resolve the pending Motion for Summary Dismissal on the parties' briefing submitted at that time.

         (Dkt. 37, Order Requiring Petitioner to Take Action, p. 2.) Petitioner was warned that failure to file a response to the pending Motion for Summary Dismissal could result in dismissal of the case with prejudice. (Id., p. 3.) Nevertheless, Petitioner has elected not to file a response to the Motion. Therefore, the Court will consider the Motion on the briefing now before the Court.

         The Court takes judicial notice of the records from Petitioner's state court proceedings, which have been lodged by the parties, and of the most recent state court appellate decision in his case, Gerdon v. State, 2014 WL 464005 (Feb. 4, 2014) (unpublished). See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006). 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. 11.) Accordingly, the Court enters the following Order.


         Petitioner challenges Respondent's assertion that Petitioner's “motion to overturn the verdict” was filed in state court on August 29, 2011. (See State's Lodging K-1, pp. 299-300.) Petitioner asserts that it was actually filed seven years earlier, on March 11, 2004. (State's Lodging A-1, pp. 91-92.)

         Both parties are correct. First, the pro se motion originally was filed with the state district court on March 11, 2004, after the judgment of conviction was entered. Petitioner's counsel filed a notice of appeal on March 16, 2004. Petitioner followed up on the status of his pro se motion with a letter to the court on March 20, 2004, but he never properly noticed the motion for a hearing. The motion remained “pending” without a ruling, until Petitioner “filed” the motion again, on August 29, 2011-this time as an exhibit to a motion to vacate the conviction. (State's Lodging K-1, p. 268.) The clerk of court stamped the copy of the 2004 motion with a receipt date of August 29, 2011, as if it had been submitted as a new motion, rather than an attachment. Regardless of the mix-up, this Court and the state district court recognized that the motion was first filed in 2004 and not ruled upon until the 2011 action. (State's Lodging K-1, pp. 304-08.)

         Hence, Petitioner's claim of tainted or falsified evidence is a non-issue, because the Court is not relying on the date of the re-urging of the motion in 2011 as the filing date, but is relying on the actual filing date in 2004. Therefore, Petitioner's objection is noted, as is his argument that his federal statute of limitations was statutorily tolled during the entire time the motion was “pending.”

         The statute of limitations defense has several interesting and difficult issues to be resolved, including the issue raised above. The procedural default defense, however, is much more straightforward; therefore, the Court will begin with a discussion of the procedural default defense. As to that defense, a conclusion of either untimeliness or procedural default will independently bar the Court from hearing the merits of Petitioner's claims. In addition, as the Court will explain, a number of Petitioner's claims are grounded upon state law and do not state federal habeas corpus claims upon which relief can be granted.


         1. Standard Governing Summary Dismissal Motions

         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.”

         2. Background

         Petitioner, who was 34 at the time, had a “sleepover” with three boys, ages 10, 11, and 12. They played video games and drank alcohol, and eventually the group engaged in oral sex and “doggie-style sex, ” under Petitioner's threats to the children involving a knife. (State's Lodging B-2.) After a grand jury indictment on 17 criminal counts related to the incidents, Petitioner entered into a plea agreement to plead guilty to 9 charges, with all other charges to be dismissed by the State. (State's Lodging A-1, pp. 42-56.) The state district court imposed concurrent sentences that amounted to 15 years fixed, followed by 15 years indeterminate. (State's Lodging A-1, pp. 82-84.)

         On direct appeal, Petitioner's appellate counsel argued that the sentences were excessive. (State's Lodging B-1.) The Idaho Court of Appeals affirmed the sentences. Petitioner then filed a petition for review, which was denied by the Idaho Supreme Court on July 5, 2005. (State's Lodgings B-4 to B-7.)

         Petitioner filed a post-conviction petition while his direct appeal was pending. (State's Lodging C-1, entry dated 10/19/2004.) The state district court denied the post-conviction petition on June 29, 2006. (See id., entry dated 6/29/2006.) The state court also entered a supplemental memorandum opinion and order of dismissal on July 25, 2006. (State's Lodging C-1, p. 2, entry dated 7/25/2006.) No appeal in the post-conviction action was filed.

         More than a year later, Petitioner sent a letter of inquiry to the clerk of court stating that his lawyers had failed to file an appeal in the post-conviction matter, despite his instruction to them to do so. (State's Lodging E-1, pp. 41, 47.) Petitioner filed a notice of appeal in his post-conviction case several months after his letter, on September 10, 2007, well beyond the 42-day time limit for filing an appeal. (See id., entry dated 9/10/2007.) Because the notice of appeal was untimely, the Idaho Supreme Court issued an order and notice of intent to dismiss the appeal, giving Petitioner 21 days to respond. (State's Lodging D-1.) Petitioner, with the assistance of counsel, filed a response, asking the court to retain the case. (State's Lodging D-2, p.2.) The Idaho Supreme Court dismissed the post-conviction appeal on November 16, 2007, and issued its Remittitur on December 7, 2007. (State's Lodgings D-3, D-4.) As a result, no claim presented in the post-conviction matter was briefed or decided on appeal.

         On April 21, 2008, Petitioner filed a successive post-conviction petition pro se. (State's Lodging E-1, pp.7-10.) Petitioner was later appointed an attorney in that action. The state district court dismissed the petition on the grounds that Petitioner's “allegations [were] conclusory and unsubstantiated by any fact” and because a claim of ineffective assistance of post-conviction counsel during the first post-conviction case was “not a cognizable ground for filing a subsequent post-conviction relief application.” (State's Lodging E-1, p.54.) Petitioner filed a timely notice of appeal, but later voluntarily dismissed the appeal in a motion that was signed by Petitioner and his attorney. (State's Lodgings E-1, pp. 56-68 & F-1.) The Idaho Supreme Court granted the motion, dismissed the appeal, and issued a remittitur on April 5, 2010. (State's Lodging F-2.) As before, none of the claims in the successive post-conviction petition were decided on appeal.

         On June 21, 2010, Petitioner filed a second successive post-conviction petition. (State's Lodging I-1, pp. 7-10.) With the assistance of counsel, Petitioner filed an amended petition on April 18, 2011. (State's Lodging I-1, pp. 188-190.) The state district court dismissed the second successive petition after an evidentiary hearing. (State's Lodgings I-1 & I-2.) Petitioner filed a notice of appeal, asserting that the state district court erred by dismissing his petition “as untimely and as a successive petition, because the doctrine of equitable tolling should have applied.” (State's Lodging J-1, p.2.) The Idaho Court of Appeals affirmed the dismissal of the second successive petition. (State's Lodging J-4.) The Idaho Supreme Court denied the petition for review and issued its remittitur on May 6, 2013. (State's Lodgings J-5, J-6, J-7, J-8.) No substantive claims were presented or decided on appeal.

         Petitioner filed a third successive petition, challenging the fact that the state district court left the pro se motion to overturn the verdict pending for seven years. The Idaho Court of Appeals rejected Petitioner's argument that his third successive petition was timely because the motion had remained pending for seven years, among other arguments. See Gerdon v. State, 2014 WL 464005 (Feb. 4, 2014) (unpublished).

         During the pendency of his various post-conviction proceedings, Petitioner filed several other pro se motions, including: (1) an I.C.R. 35 motion, filed April 28, 2010 (State's Lodging K-1, pp. 216-218); (2) an “amended motion to vacate, ” filed August 29, 2011 (id., pp. 268-269), accompanied by an exhibit, the 2004 “motion to overturn verdict” (id., pp. 299-300); and (3) a motion to withdraw the guilty plea, filed November 14, 2011 (id., pp. 315-317). The trial court denied all these motions. (Id., pp. 262-266, 304-308, 367.)

         Petitioner appealed from denial of the amended motion to vacate (with attached motion to overturn the verdict) and the motion to withdraw the guilty plea. (State's Lodging L-1.) The issue Petitioner appealed was that the district court erred in denying the motions for untimeliness reasons, but he acknowledged that the district court lacked jurisdiction to grant the motions. (Id.) The Idaho Court of Appeals affirmed on grounds of untimeliness and lack of jurisdiction, and the Idaho Supreme Court denied the petition for review, issuing its remittitur on September 6, 2012. (State's Lodgings L-4 to L-7.) No substantive questions were presented or decided on appeal.

         On October 9, 2012, Petitioner filed Rule 60(b) motions for relief in his initial and first successive post-conviction actions. (State's Lodgings M-1, pp. 5-6; M-2, pp. 29-30.) The motions were denied. On appeal, Petitioner presented claims of whether the district court erred when it denied the motions regarding his right to effective assistance of post-conviction counsel. (State's Lodging N-1.) The Idaho Court of Appeals affirmed. (State's Lodging N-7.) The Idaho Supreme Court denied the petition for review and issued its remittitur on June 20, 2014. (State's Lodgings N-8, N-9, N-10, N-11.) No substantive claims were presented or decided on appeal.

         In this federal habeas corpus action, Petitioner originally filed his petition on April 2, 2012. (Dkt. 3.) This case was stayed while Petitioner pursued state court relief. Petitioner filed his amended petition on May 27, 2014 (Dkt. 16), and the Court re-opened this case on October 16, 2014. (Dkt. 17.) Thereafter, Respondent filed a Motion for Summary Dismissal. As indicated above, Petitioner has had opportunity but has chosen not to file a formal response.


         1. Cognizability

         A. Standard of Law

         Habeas corpus relief cannot be granted on the grounds that a conviction or sentence violates the state constitution or state law. Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“Federal habeas corpus relief does not lie for errors of state law.”); see also Peltier v. Wright, 15 F.3d 860, 861-62 (9th Cir. 1994) (noting that generally ...

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