Heilman v. Blades

          MEMORANDUM DECISION AND ORDER

          EDWARD J. LODGE UNITED STATES DISTRICT JUDGE.

         Petitioner 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.)

         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).

         Because 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 U.S.C. §2244(d)(1)(A).

         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).

         2. Background and Discussion of Timeliness Issue

         Petitioner 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.)

         On 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.)

         Petitioner 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.)

         Petitioner 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.)

         The 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. 67-68.)

• 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.)

         As to 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.)

         On June 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.)

         Petitioner's 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 ...