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Mitchell v. State

United States District Court, D. Idaho

December 29, 2017

ROB L. MITCHELL, Petitioner,
v.
STATE OF IDAHO, WARDEN KEVEN YORDY, and ALL SUCCESSORS IN OFFICE, Respondents.

          MEMORANDUM DECISION AND ORDER

          Honorable Candy W. Dale United States Magistrate Judge.

         Pending 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.

         The 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 Cir. 2006).

         The 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.

         BACKGROUND

         In 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.)

         Petitioner 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.)

         The 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.)

         On September 21, 2001, at the earliest, [1] 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, [2] 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.)

         Petitioner 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.

         On 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, H-7.)

         Petitioner filed his Petition in this Court, at the earliest, on January 26, 2017.[3]Petitioner asserts a single claim: that his sentences should run concurrently, not consecutively. (Dkt. 2 at 6.)

         The 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 ...


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