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Grijalva v. Wolfe

United States District Court, D. Idaho

August 28, 2017

RAYMOND GRIJALVA II, Petitioner,
v.
JAMES WOLFE, Respondent.

          MEMORANDUM DECISION AND ORDER

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

         Petitioner Raymond Grijalva II is proceeding on his Amended Petition for Writ of Habeas Corpus. (Dkt. 9.) Respondent has filed a Motion for Summary Dismissal, asserting that Petitioner's original petition is barred by the statute of limitations and that the claims are procedurally defaulted for failure to properly present them to the Idaho Supreme Court. (Dkt. 18.) In response, Petitioner filed a Motion for Rule 56(d) on Summary Dismissal, asserting that judgment is premature and additional discovery is necessary. (Dkt. 21.)

         All parties who have appeared in this case have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 14.) See 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73.

         REVIEW OF PETITIONER'S 56(d) MOTION AND REQUEST FOR APPOINTMENT OF COUNSEL

         Pursuant to Federal Rule of Civil Procedure 56(d), “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.”

         Petitioner asserts that he exhausted his state remedies on July 22, 2015, when the “state of Idaho” denied with prejudice a petition for writ of habeas corpus in his state court case, No. CV-2015-02. He also asserts that his most recent state court action restarted the statute of limitations on the claims asserted therein. As a result, Petitioner contends that Respondent's Motion for Summary Dismissal on procedural grounds is unnecessary.

         In Case No. CV-2015-02, Petitioner attempted to bring his speedy trial claim in a state petition for writ of habeas corpus, but the state district court ruled that habeas corpus was an inappropriate procedural vehicle because the claim should have been raised on direct appeal or in a proper post-conviction action. (Dkt. 21-1.) The Register of Actions shows that Petitioner did not appeal from the state district court dismissal of his case.[1]These facts do not show that the procedural issues brought in Respondent's Motion for Summary Dismissal in this action are moot.

         In the Affidavit submitted in support of his Rule 56(d) Motion, Petitioner states that he twice requested transcripts of his arraignment on August 25, 2004, and of his sentencing on February 14, 2005, from the Canyon County Clerk of Court. (Dkt. 21-3, pp.1-2.) Petitioner has filed a motion for discovery requesting these transcripts. (Dkt. 21-3, pp.7-8.) Petitioner asserts that these transcripts would prove his innocence. (Dkt. 21-3, p. 2.)

         To obtain relief under Rule 56(d), the movant bears the burden of specifically identifying relevant information, demonstrating some basis for believing that the information actually exists, and demonstrating that the information would prevent summary judgment. Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n. 5 (9th Cir. 2009). Respondent argues that the transcripts have never been transcribed, because Petitioner did not file any appeal necessitating preparation of the transcripts. It is unknown whether the proceedings were audio-recorded, such that Petitioner could be provided with copies of the audio recordings. It is also unknown whether the court reporter kept her original transcriptions of the hearings, such that he or she could prepare transcriptions at this late date.

         Petitioner has not made any demonstration that any evidence presented at these hearings would prove his actual innocence. The Court will deny his Motion without prejudice to him reasserting it with adequate supporting factual information. Should he do so, Respondent will be required to check with the Clerk of Court and report what avenues remain open, if any, to obtain audio recordings or transcripts of the two hearings.

         Petitioner requests appointment of counsel because of his lack of legal training and resources. (Dkt. 15.) 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).

         Because the procedural issues in this case are straightforward, and Petitioner has not shown the need for discovery, the Court will presently deny Petitioner's request for appointment of counsel. (Dkt. 15.) Should Petitioner make an adequate showing that he is actually innocent and that further discovery is warranted, the Court will reconsider the request.

         REVIEW OF MOTION FOR SUMMARY DISMISSAL: STATUTE OF LIMITATIONS GROUNDS

         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


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