United States District Court, D. Idaho
DENNIS R. HEILMAN, Petitioner,
RANDY BLADES, Respondent.
MEMORANDUM DECISION AND ORDER
J. LODGE UNITED STATES DISTRICT JUDGE.
Dennis R. Heilman is proceeding on his Amended Petition for
Writ of Habeas Corpus. (Dkt. 11.) Respondent has filed a
Motion for Summary Dismissal on procedural grounds. (Dkt.
19.) After several requests for extensions were granted, the
Motion is now fully briefed (Dkt. 35.)
reviewed the record in this matter and having considered the
arguments of the parties, the Court enters the following
OF MOTION FOR SUMMARY DISMISSAL: STATUTE OF LIMITATIONS
Standard of Law Governing Statute of Limitations
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).
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.” 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).
a federal habeas corpus action is for the express and limited
purpose of challenging the current judgment of conviction
under which a state prison is held, the federal limitation
period under 28 U.S.C. § 2244(d)(1)(A) runs from the
most recent amended judgment of conviction in the state
district court, not from the original judgment. Smith v.
Williams, 871 F.3d 684 (9th Cir. 2017). Under such
circumstances, the federal limitation period does not begin
to run as to the current federal petition until
“conclusion of direct review or the expiration of the
time for seeking such review.” See id.; 28
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).
Background and Discussion of Timeliness Issue
was convicted by jury of aggravated assault, rape, false
imprisonment, and unlawful entry on June 30, 2006.
(State's Lodging A-1, pp. 113-114.) Petitioner was
sentenced to concurrent sentences of six years fixed with
fourteen years indeterminate on the aggravated assault and
rape charges, and concurrent lesser sentences for the other
two charges, with entry of judgment on September 28, 2006.
(Id., pp. 166-170.)
November 3, 2006, Petitioner filed a notice of appeal several
weeks too late. (State's Lodging A-1, pp. 174-177.) After
giving Petitioner notice and an opportunity to respond, the
Idaho Supreme Court dismissed the appeal as untimely.
(State's Lodgings B-1 to B-6.)
next filed a motion for a new trial. The state district court
denied the motion, and Petitioner did not file an appeal.
(State's Lodging A-1, p. 183-196; State's Lodging
A-2, pp. 203-224; A-4.)
filed his initial post-conviction relief petition on July 28,
2008. (State's Lodging C-1, pp. 4-11.) The State filed a
motion to dismiss on grounds of untimeliness. The state
district court denied the motion, reasoning that, when
Petitioner filed a motion for a new trial, the one-year
post-conviction statute of limitations did not begin until
the state district court disposed of that motion.
(State's Lodging C-1, pp. 42-49.)
state district court went on to adjudicate the merits of the
post-conviction petition. The petition contained several
ineffective assistance of trial counsel claims, which were
disposed of as follows:
• Relief was granted on the first claim, ineffective
assistance for failure to file a timely notice of appeal from
the judgment of conviction. (Id., pp. 65-66.) The
court vacated and re-entered judgment allowing Petitioner to
file a direct appeal. (Id.)
• The court summarily dismissed Petitioner's second
claim, ineffective assistance for failing to file a timely
Rule 35 motion to challenge his sentences. (Id., pp.
• The court held an evidentiary hearing on the third
claim, ineffective assistance for failing to advise
Petitioner of his Fifth Amendment rights regarding a
psychosexual evaluation. (Id., pp. 75-84; C-3.)
Petitioner filed a notice of appeal regarding this claim
only. (State's Lodging D-6.) The Idaho Court of Appeals
affirmed the state district court's decision, and the
Idaho Supreme Court denied Petitioner's petition for
review. (State's Lodgings D-9 to D-11.)
the relief granted on Petitioner's first claim, the state
district court re-entered judgment on April 28, 2009.
Petitioner filed a timely notice of appeal. (State's
Lodging A-2, pp. 243-250.) The Idaho Court of Appeals
affirmed the convictions on December 10, 2010, and the Idaho
Supreme Court denied Petitioner's petition for review on
January 24, 2011. (State's Lodgings E-3 to E-5.)
29, 2011, Petitioner filed a successive post-conviction
action, raising numerous ineffective assistance of trial and
appellate counsel claims not previously raised (some of which
could have been raised only after his newly-reinstated
appeal), a prosecutorial misconduct claim, and a witness
perjury claim. Petitioner's newly-appointed counsel
raised additional claims in an amended successive petition.
The state district court denied relief. (State's Lodging
F-1.) On appeal, the Idaho Court of Appeals affirmed the
summary dismissal of the successive petition, and the Idaho
Supreme Court denied Petitioner's petition for review.
(State's Lodging G-4 to G-6.)
federal Petition for Writ of Habeas Corpus was filed on June
29, 2011 (mailbox rule date), the same day his successive
post-conviction petition was filed in state court. The
federal proceedings were staying pending the outcome of his
successive post-conviction action. When the state action was
concluded, this case was re-opened, and Petitioner ...