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Sivak v. Yordy

United States District Court, D. Idaho

August 29, 2017

LACEY MARK SIVAK, Petitioner,
v.
HOWARD YORDY, Respondent.

          MEMORANDUM DECISION AND ORDER

          B. Lynn Winmill, Chief Judge United States District Court.

         Pending before the Court is a Petition for Writ of Habeas Corpus filed by Idaho state prisoner Lacey Mark Sivak, challenging Petitioner's Ada County convictions of murder and possession of a firearm during the commission of a murder. (See Dkt. 2; State's Lodging Q-3 at 529.) Respondent has filed a Motion for Summary Dismissal, arguing that the Petition is barred by the one-year statute of limitations and that Petitioner's claims are procedurally defaulted. (Dkt. 31.)

         The Court takes judicial notice of the records from Petitioner's state court proceedings, which have been lodged by Respondent. (Dkt. 19.) See Fed. R. Evid. 201(b); Dawson v Mahoney, 451 F.3d 550, 551 n.1 (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 conditionally granting the Motion and allowing Petitioner one final chance to file a supplemental response, setting forth any reason why the Petition should not be dismissed.

         PRELIMINARY ISSUES and PETITIONER'S PENDING MOTIONS

         Respondent's Motion for Summary Dismissal became ripe on February 27, 2017, with the expiration of the time period within which Respondent could have chosen to file a reply brief. (Dkt. 13, 23, 34.) However, Petitioner later informed the Court that he did not have in his possession the state court records necessary for him to adequately address the Motion for Summary Dismissal. Therefore, the Court instructed Respondent to provide Petitioner with copies of any state court records cited in the Motion for Summary Dismissal that Petitioner did not already possess. (Dkt. 40 at 2-3.) Respondent filed a notice of compliance, and-on June 14, 2017-the Court allowed Petitioner to file a supplemental response to the Motion for Summary Dismissal within 21 days. (Dkt. 50.)

         Petitioner then claimed that Respondent had not, in fact, complied with the Court's earlier instruction to provide copies of certain state court records. Because it was unclear precisely whether Petitioner was missing certain records and, if so, which records were missing, the Court again ordered Respondent “to ensure that Petitioner does, in fact, have possession of the documents cited in the Motion for Summary Dismissal, and . . . if not, to provide those documents once again to Petitioner.” (Dkt. 66.) The Court reminded Petitioner that “he is entitled to possess only those documents listed on the docket of this case and any documents actually cited in Respondent's Motion for Summary Dismissal, ” and not all of the records lodged with the Court. (Id. at 3.) See also Rules 5(c) and 5(d) of the Rules Governing Section 2254 Cases (“Habeas Rules”). The Court issued that Order on July 27, 2017.

         The next day, Respondent notified the Court that he had-once again-provided Petitioner with all of the records cited in the Motion for Summary Dismissal that Petitioner did not already possess. (Dkt. 69.) Now, Petitioner again alleges that Respondent has not complied with the Court's instructions to produce certain state court records. (Dkt. 71.) Petitioner has also filed motions for sanctions based on the alleged noncompliance and has requested a hearing on the request for sanctions.[1] (72, 75, 77.)

         Respondent states that he has complied, more than once, with the Court's instruction to provide to Petitioner the records cited in Respondent's Motion for Summary Dismissal. Petitioner says this is untrue. However, Petitioner's contention is based on an argument that this Court has already rejected multiple times.

         Petitioner acknowledges, in his request for sanctions dated August 7, 2017, that he did, in fact, receive from Respondent an envelope containing 328 pages. (Dkt. 72 at 2.) Petitioner does not contend that this envelope was missing any of the records Respondent identified as having been sent to Petitioner on June 13 and-again-on July 28, 2017. (See Dkt. 46, 69.) Instead, Petitioner states that this production of records does not comply with the Court's previous orders because the Motion for Summary Dismissal states that it is “based upon all the pleadings and documents previously filed with this Court.” (Id. at 2.) Therefore, Petitioner argues, Respondent was required by Court order to provide him with the entire state court record lodged with the Court.

         Petitioner has been informed, on multiple occasions, that he is not entitled to the entirety of Respondent's lodging, and the Court has never ordered Respondent to provide Petitioner with the entire lodging. Rather, Petitioner is entitled, pursuant to the Habeas Rules and this Court's previous Orders, to copies of all of the records specifically cited in Respondent's Motion for Summary Dismissal that he did not already possess:

1. Amended Information (State's Lodging A-1, pp.83-84).
2. Verdicts (State's Lodging A-1, pp.103-08).
3. Judgment of Conviction (State's Lodging A-1, pp.139-41).
4. Reporter's Transcript of hearing on April 4, 1983 (State's Lodging A-16).
5. Petition for Post-Conviction Relief (State's Lodging E-35, pp.3-15).
6. Memorandum Decision and Judgment and Order Thereon (State's Lodging E-35, pp.105-17).
7. Court Minutes (State's Lodging G-57, pp.133-37).
8. Findings of the Court in Considering the Death Penalty (State's Lodging G-57, pp.164-69).
9. Judgment (State's Lodging G-57, pp.170-71).
10. Appellant's Brief (State's Lodging H-62, pp. xv-79).
11. Petition for Post-Conviction Relief (State's Lodging I-71, pp.3-15).
12. Order Dismissing the Defendant's Amended Petition for Post-Conviction Relief (State's Lodging I-71, pp.48-52).
13. Petition for Post-Conviction Relief (State's Lodging K-88, pp.3-8).
14. Memorandum Decision and Order (State's Lodging K-88, pp.10205).
15. Petition for Post-Conviction Relief or Writ of Habeas Corpus/Motion to Correct Illegal Sentence, to Vacate Sentence of Death, and for New Sentencing Trial (State's Lodging M-1, pp.12232).
16. Memorandum Decision and Order (State's Lodging M-2, pp.31019).
17. Motion to Dismiss Appeal (State's Lodging N-2).
18. Brief in Support of Respondent's Motion to Dismiss Appeal (State's Lodging N-3).
19. Order Granting Motion to Dismiss Appeal (State's Lodging N-7).
20. Post-Conviction Petition (State's Lodging O-1, pp.4-21).
21. Order Dismissing Successive Petition for Post-Conviction Relief (State's Lodging O-1, pp.99-100).
22. Order Denying Petition for Review (State's Lodging P-8).
23. Appellant's Brief (State's Lodging R-1).
24. Order Denying Petition for Review (State's ...

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