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May v. Yordy

United States District Court, D. Idaho

September 13, 2017

MARKCUS RAYMOND MAY, Petitioner,
v.
KEITH YORDY, Respondent.

          MEMORANDUM DECISION AND ORDER

          HONORABLE CANDY W. DALE UNITED STATES MAGISTRATE JUDGE

         Petitioner Markcus Raymond May is proceeding on his Petition for Writ of Habeas Corpus. (Dkt. 3.) Respondent has filed a Motion for Summary Dismissal on procedural grounds. (Dkt. 12.) The Motion is now fully briefed (Dkts. 14, 15), and all parties who have appeared have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 10.) See 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73.

         Having reviewed the record in this matter and having considered the arguments of the parties, the Court enters the following Order.

         REVIEW OF MOTION FOR SUMMARY DISMISSAL: STATUTE OF LIMITATIONS GROUNDS

         1. Standard of Law Governing Statute of Limitations

         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.”[1] 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

         In each instance above, “finality” is measured from entry of the final judgment or order, not from a remittitur or mandate, which are mere formalities. Gonzales v. Thaler, 132 S.Ct. 641, 653 (2012); Clay v. United States, 537 U.S. 522, 529 (2003); Wixom v. Washington, 264 F.3d 894, 898 n.4 (9th Cir. 2001).

         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). The federal statute of limitations is not tolled between the date of finality on direct appeal and the date the first collateral challenge is filed, because nothing is “pending” during that time. Thorson v. Palmer, 479 F.3d 643, 646 (9th Cir. 2007).

         To warrant tolling, the collateral relief application must be “properly filed, ” meaning that it conforms to state rules governing conditions to filing, including timeliness. Pace v. DiGuglielmo, 544 U.S. 408 (2005). A state collateral relief application is considered “pending” under § 2244(d)(2) until “the application has achieved final resolution through the State's post-conviction procedures.” Carey v. Saffold, 536 U.S. 214, 220 (2002). Whether an application remains “pending” under § 2244(d)(2) depends on the state's interpretation of finality. See Id. at 223 (“Ordinarily, for purposes of applying a federal statute that interacts with state procedural rules, we look to how a state procedure functions, rather than the particular name that it bears”); White v. Klitzkie, 281 F.3d 920, 924 n.4 (9th Cir. 2002) (it is the state appellate court decision, not the mandate, that signals conclusion of review for § 2244(d)(2) purposes, unless the state has a rule that extends the time when the decision of the state appellate court becomes final).

         In Idaho, an appellate case remains pending until a remittitur is issued. See Cochran v. State, 984 P.2d 128, 129 (Idaho Ct. App. 1999), and so, for federal purposes, a collateral relief application is deemed “pending” through the date of the remittitur. See Jefferson v. Budge, 419 F.3d 1013, 1015 n.2 (9th Cir. 2005). “Pending” does not include the time period for filing a petition for writ of certiorari before the United States Supreme Court to challenge denial of a collateral review petition. Lawrence v. Florida, 549 U.S. 327, 337 (2007). Finally, 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 postconviction action was filed.

         2. Background and Discussion of Timeliness

         The Idaho Supreme Court denied Petitioner's petition for review on direct appeal on August 15, 2012. Petitioner's judgment became final 90 days thereafter, on Tuesday, November 13, 2012. Petitioner's one-year federal statute of limitations began running on that day, and continued for 125 days, until Petitioner filed a pro se petition for postconviction relief on March 18, 2013.[2] His judgment of conviction and sentences were affirmed by the Idaho Court of Appeals. Petitioner filed a petition for review, which was denied by the Idaho Supreme Court on May 7, 2015, with the remittitur issuing the same day.

         Petitioner's federal statute began running again on May 8, 2015, with 241 days left. It expired on Monday, January 4, 2016. Petitioner filed the Petition in this federal habeas corpus action on June 16, 2016, more than five months too late.

         3. Equitable Tolling

         If a petition is deemed untimely, a federal court can hear the claims if the petitioner can establish that “equitable tolling” should be applied. In Pace v. DiGuglielmo, the Supreme Court clarified that, “[generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way.” 544 U.S. at 418. In addition, there must be a causal link between the lateness and the extraordinary circumstances. See Bryant v. Schriro, 499 F.3d 1056, 1061 (9th Cir. 2007) (holding that a petitioner must show that his untimeliness was caused by an external impediment and not by his own lack of diligence). The petitioner bears the burden of bringing forward facts to establish a basis for equitable tolling. United States v. Marolf, 173 F.3d 1213, 1318, n. 3 (9th Cir. 1999).

         Petitioner alleges that he was assaulted by another inmate and sent to the Idaho Maximum Security Institution in September 2015. He alleges that his legal work was lost and that the paralegal failed to respond to his request for information. He states: “When I finally got out of max and talked to paralegal she said I was to[o] late but then a friend told me to file ...


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