Gosch v. State

          MEMORANDUM DECISION AND ORDER

          EDWARD J. LODGE UNITED STATES DISTRICT JUDGE.

         Pending before the Court is a Petition for Writ of Habeas Corpus filed by Idaho state prisoner Grant W. Gosch. (Dkt. 3.) Respondents have filed an Answer and Brief in Support of Dismissal, arguing that Petitioner's claim is procedurally defaulted and, alternatively, that the claim fails on the merits. (Dkt. 14.) Petitioner has filed a Reply (Dkt. 20), and the Petition is now ripe for adjudication.

         The Court takes judicial notice of the records from Petitioner's state court proceedings, which have been lodged by Respondents. 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 dismissing the Petition because Petitioner's only claim is procedurally defaulted.

         BACKGROUND

         In the First Judicial District Court in Kootenai County, Idaho, Petitioner pleaded guilty to felony domestic battery in violation of Idaho Code § 18-918. (Pet., Dkt. 3, at 1; State's Lodging B-4 at 1.) He received a unified sentence of eight years in prison with three years fixed, but the trial court retained jurisdiction and placed Petitioner on a rider. (State's Lodging C-6.) After two review hearings, the trial court relinquished jurisdiction and ordered execution of the underlying sentence. (State's Lodging B-4 at 1; C-7; C-8.)

         Petitioner did not file a direct appeal. Petitioner states that his attorney was supposed to file an appeal, but did not, and that his attorney told Petitioner to obtain a Rule 35 packet from the jail himself and send it to the attorney's office, for purposes of filing a motion for reduction of sentence under Idaho Criminal Rule 35. (Dkt. 20 at 4.) Petitioner was unable to obtain the packet from the Kootenai County Jail.

         Petitioner then filed a pro se petition for state post-conviction relief. (State's Lodging A-1 at 3-6.) The petition did not include his current claim that, due to Kootenai County's failure to provide documents to Petitioner, he was unable to file a motion for reduction of sentence under Idaho Criminal Rule 35 and, therefore, was denied his right to access the courts. Petitioner failed to respond to the post-conviction court's notice of intent to dismiss, and the court dismissed the petition. (Id. at 8.)

         Petitioner appealed the dismissal of his post-conviction petition, raising for the first time his claim regarding his inability to file a Rule 35 motion. (State's Lodging B-1; B-3.) The Idaho Court of Appeals declined to address this issue because Petitioner raised the issue for the first time on appeal.^[1] (State's Lodging B-4 at 4-5.) Petitioner did not file a petition for review with the Idaho Supreme Court. (See State's Lodging B-5 (remittitur issued by Idaho Court of Appeals).)

         In the instant habeas Petition, Petitioner asserts a single claim: that he was denied his right of access to the courts when Kootenai County failed to provide him with “Rule 35 paperwork/packet while [Petitioner was] housed in County Jail.” (Dkt. 3 at 2.) The Court previously reviewed the Petition and allowed Petitioner to proceed on the Petition to the extent that his claim “(1) is cognizable in a federal habeas corpus action, (2) was timely filed in this Court, and (3) was either properly exhausted in state court or subject to a legal excuse for any failure to exhaust in a proper manner.” (Dkt. 7 at 2.)

         Respondents argue that Petitioner's claim is procedurally defaulted and that no legal excuse for the default exists. For the reasons that follow, the Court agrees.^[2]

         DISCUSSION

         1. Standards of Law

         The Rules Governing § 2254 Cases (“Habeas Rules”) authorize 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, ” as well as those records subject to judicial notice, “that the petitioner is not entitled to relief in the district court.” Habeas Rule 4; see Fed. R. Evid. 201(b); Dawson, 451 F.3d at 551 n.1.

         A habeas petitioner must exhaust his or her remedies in the state courts before a federal court can grant relief on constitutional claims. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To do so, the petitioner must invoke one complete round of the state's established appellate review process, fairly presenting all constitutional claims to the state courts so that they have a full and fair opportunity to correct alleged constitutional errors at each level of appellate review. Id. at 845. In a state that has the possibility of discretionary review in the highest appellate court, like Idaho, the petitioner must have presented all of his federal claims at least in a petition seeking review before that court. Id. at 847. ...