United States District Court, D. Idaho
ROB L. MITCHELL, Petitioner,
STATE OF IDAHO, WARDEN KEVEN YORDY, and ALL SUCCESSORS IN OFFICE, Respondents.
MEMORANDUM DECISION AND ORDER
Honorable Candy W. Dale United States Magistrate Judge.
before the Court is a Petition for Writ of Habeas Corpus
filed by Idaho state prisoner Rob L. Mitchell
(“Petitioner”), challenging Petitioner's Nez
Perce County convictions for attempted murder and robbery.
(Dkt. 2.) Respondent has filed a Motion for Summary
Dismissal, arguing that Petitioner's claim is barred by
the one-year statute of limitations and is noncognizable.
(Dkt. 12.) The Motion is now ripe for adjudication.
Court takes judicial notice of the records from
Petitioner's state court proceedings, which have been
lodged by Respondent. (Dkt. 11.) See Fed. R. Evid.
201; Dawson v Mahoney, 451 F.3d 550, 551 n.1 (9th
parties have consented to the jurisdiction of a United States
Magistrate Judge to conduct all proceedings in this case in
accordance with 28 U.S.C. § 636(c). (Dkt. 13.) 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 granting the Motion and dismissing the
Petition with prejudice as untimely.
1992, following a jury trial in the Second Judicial District
in Nez Perce County, Idaho, Petitioner was convicted of
robbery and attempted murder in the first degree. He was
sentenced to consecutive prison terms of thirty-five years
with fifteen years fixed on the robbery count, and fifteen
years on the attempted murder count. (State's Lodging A-1
at 104-06.) Petitioner filed a direct appeal, and the Idaho
Court of Appeals affirmed. (State's Lodging B-4.)
Petitioner did not file a petition for review with the Idaho
Supreme Court, and the court of appeals issued the remittitur
on October 12, 1993. (State's Lodging B-5.)
filed a state post-conviction petition in 1994. (State's
Lodging C-1 at 1-14. The state district court granted relief
on Petitioner's claim of ineffective assistance of
appellate counsel and denied relief on Petitioner's
remaining claims. (Id. at 107-28.) The court
reinstated the original appeal period, allowing Petitioner
“to file a new appeal with present counsel.”
(Id. at 127.)
state appealed the Idaho district court's grant of
post-conviction relief on the basis of ineffective assistance
of appellate counsel, and Petitioner cross-appealed the
denial of his other claims. Petitioner also filed a new
direct appeal from his convictions pursuant to the grant of
post-conviction relief. The two appeals were consolidated.
(State's Lodging D-3.) The Idaho Supreme Court reversed
the grant of post-conviction relief as to Petitioner's
appellate ineffectiveness claim, affirmed the denial of
post-conviction relief as to Petitioner's other claims,
and dismissed the new direct appeal. (State's Lodging
D-8.) The remittitur was issued on December 17, 1998.
(State's Lodging D-9.)
September 21, 2001, at the earliest,  Petitioner filed his first
motion for correction of sentence under Idaho Criminal Rule
35. (State's Lodging E-1 at 8-9.) The trial court denied
the motion on October 23, 2001,  and Petitioner appealed.
(Id. at 21-28.) The Idaho Court of Appeals affirmed,
and the Idaho Supreme Court denied review. (State's
Lodging F-3, F-6.) The remittitur was issued on January 17,
2003. (State's Lodging F-7.)
contends that he filed another Rule 35 motion in
approximately May of 2009, although the state court's
Register of Actions for Petitioner's case does not show
this filing. (Dkt. 2 at 4; State's Lodging A-4.)
According to Petitioner, the trial court denied the motion,
the court of appeals affirmed, and the state supreme court
denied review. (Dkt. 2 at 4.) Petitioner does not provide
dates for these decisions. The Court will assume, for
purposes of this decision only, that Petitioner's
description of these proceedings is accurate. As explained
below, the lack of dates for these decisions does not affect
the Court's analysis.
March 3, 2016, at the earliest, Petitioner filed another Rule
35 motion, which the trial court denied. (State's Lodging
G-1 at 8-10, 17-18.) The Idaho Court of Appeals affirmed,
holding that the motion was untimely and the trial court thus
lacked jurisdiction to hear it. (State's Lodging H-4.)
The Idaho Supreme Court denied review and issued the
remittitur on January 9, 2017. (State's Lodging H-6,
filed his Petition in this Court, at the earliest, on January
26, 2017.Petitioner asserts a single claim: that his
sentences should run concurrently, not consecutively. (Dkt. 2
Court previously reviewed the Petition and allowed Petitioner
to proceed on his claims to the extent those claims
“(1) are cognizable in a federal habeas corpus action,
(2) were timely filed in this Court, and (3) were either
properly exhausted in state court or subject to a legal