United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill, Chief Judge United States District Court.
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.)
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
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.
ISSUES and PETITIONER'S PENDING MOTIONS
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.)
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.
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. (72, 75, 77.)
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.
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.
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
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,
4. Reporter's Transcript of hearing on April 4, 1983
(State's Lodging A-16).
5. Petition for Post-Conviction Relief (State's Lodging
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.
11. Petition for Post-Conviction Relief (State's Lodging
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
14. Memorandum Decision and Order (State's Lodging K-88,
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
16. Memorandum Decision and Order (State's Lodging M-2,
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
20. Post-Conviction Petition (State's Lodging O-1,
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
23. Appellant's Brief (State's Lodging R-1).
24. Order Denying Petition for Review (State's ...