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Henry v. Carlin

United States District Court, D. Idaho

January 2, 2018

RONALD RAY HENRY, Petitioner,
v.
TEREMA CARLIN, Respondent.

          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 Ronald Ray Henry (“Petitioner”), challenging Petitioner's Kootenai County convictions of burglary, grant theft, and rape. (Dkt. 3.) Respondent has filed a Motion for Summary Dismissal, arguing that the Petition is barred by the one-year statute of limitations and that the claims in the Petition are procedurally defaulted. (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. 10.) See Fed. R. Evid. 201; 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 granting the Motion and dismissing this case with prejudice because the claims in the Petition are untimely and procedurally defaulted.

         BACKGROUND

         The facts underlying Petitioner's conviction are set forth clearly and accurately in State v. Henry, Docket No. 33116, Op. 326 (Idaho Ct. App. Jan. 17, 2008) (unpublished), which is contained in the record at State's Lodging B-4. The facts will not be repeated here except as necessary to explain the Court's decision.

         In a jury trial in the First Judicial District in Kootenai County, Idaho, Petitioner was convicted of rape, burglary, grand theft, and false imprisonment. (State's Lodging B-4 at 1.) He received a unified sentence of 25 years in prison with 6½ years fixed. (State's Lodging A-1 at 174.)

         On direct appeal, Petitioner argued that (1) the trial court abused its discretion by allowing an officer to testify that his observations of the victim were consistent with being under the influence of a controlled substance, (2) the prosecutor committed misconduct during closing argument by speculating that Petitioner might have placed a date-rape drug in the victim's drink, and (3) that these two errors cumulatively denied Petitioner a fair trial. (State's Lodging B-1.) The Idaho Court of Appeals affirmed the convictions. (State's Lodging B-4.) That court denied a petition for rehearing, and the Idaho Supreme Court denied review on July 15, 2008. (State's Lodging B-7, B-10.) The remittitur was issued the next day. (State's Lodging B-11.)

         On August 12, 2008, at the earliest, [1] Petitioner filed and a petition for state post-conviction relief under the same case number as his initial petition, later amending the successive petition with the assistance of counsel to assert claims of prosecutorial misconduct and ineffective assistance of counsel. (State's Lodging C-1 at 1-4, 13-16, 22-25.) The trial court summarily dismissed the petition. (Id. at 29-35.)

         Petitioner appealed the dismissal of his post-conviction petition, but later moved to voluntarily dismiss the appeal. (State's Lodging D-6.) The Motion was granted, the appeal dismissed, and the remittitur issued on January 3, 2013. (State's Lodging D-8.)

         While Petitioner's initial post-conviction petition was still on appeal, Petitioner filed a successive post-conviction petition. (State's Lodging F-1 at 3-7.) The trial court dismissed the petition, stating that it was “merely a repeat of [Petitioner's] original petition, ” did “not set forth any new grounds, ” and was “filed more than one year after the final determination of the petitioner's appeal in his criminal case.” (State's Lodging F-3 at 5.) Petitioner appealed, but the Idaho Supreme Court conditionally dismissed the appeal as (1) not an appeal from a final order, (2) frivolous, and (3) was not accompanied by the fee for preparation of the clerk's record. (Id. at 7.) When Petitioner failed to respond to that order, the court dismissed the appeal. (Id. at 9.) The remittitur was issued on June 13, 2013. (Id. at 10.)

         On October 22, 2013, Petitioner filed-again under the same case number as his initial petition-a motion for leave to file a second successive petition, which was construed by the Idaho district court as such a petition. (Id. at 11-36; State's Lodging E-3 at 16.) The court dismissed the second successive petition because it did not “raise any new issues” that “were not, or could not have been, raised in his prior petitions for post-conviction relief, or could not have been raised during the petitioner's [direct] appeal of his criminal conviction.” (Id. at 14, 16.)

         Petitioner appealed the dismissal of the second successive petition. The Idaho Court of Appeals affirmed for two reasons. First, the court declined to address Petitioner's claims because Petitioner had “provided no evidence supporting his claims, nor did he provide a statement explaining why such supporting evidence was not included with his petition.” (State's Lodging F-8 at 2-3.) Second, the court stated that, even if it were to review Petitioner's claims, those claims were all “barred because they were either raised on direct appeal, were raised in a prior petition for post-conviction relief, or could have been previously raised.” (Id. at 2 n.1.) The Idaho Court of Appeals denied Petitioner's petition for rehearing, and the Idaho Supreme Court denied review. (State's Lodging F-11, F-14.) The remittitur issued on November 19, 2015. (State's Lodging F-15.)

         Petitioner filed his Petition in this Court, at the earliest, on October 4, 2016.[2] The Petition asserts the following claims: (1) the victim testified falsely; (2) the prosecution withheld exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83 (1963), when a detective was permitted to sit through the trial and testify at the close of the state's case, which purportedly allowed the detective, along with the prosecutor, to “craft[] [that] testimony and police reports to fill in all of the missing parts and perjury”; (3) the state improperly destroyed the rape kit in violation of California v. Trombetta, 467 U.S. 479 (1984); (4) the prosecutor committed misconduct by allowing the victim Alisha to provide known false testimony; and (5) Petitioner received ineffective assistance of trial counsel when counsel (a) failed to impeach the witnesses, (b) did “hardly anything to assist in defending the petitioner, ” (c) failed to adequately communicate with Petitioner, (d) “came up with a weak defense as we went along at trial, ” and (e) allowed the victim “to say whatever she wanted, and failed to call a perjury case against her.”[3] (Dkt. 3 at 8-14.)

         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 excuse for any failure to exhaust in a proper manner.” (Dkt. 6 at 2.)

         DISCUSSION

         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; Dawson, 451 F.3d at 551 n.1. Where appropriate, a respondent may file a motion for summary dismissal, rather than an answer. White v. Lewis, 874 F.2d 599, 602 (9th Cir. 1989).

         1. The Petition is Barred by the Statute of Limitations

         Respondent argues that Petitioner's claims are barred by the one-year statute of limitations. Because Petitioner (1) is entitled to statutory tolling of only part of the statute of limitations period, (2) is not entitled to equitable tolling, and (3) has not made a colorable showing of actual innocence, the Court concludes that the Petition is untimely.

         A. Statute of Limitations Standards of Law

         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.”[4] 28 U.S.C. § 2244(d)(1)(A). One year in this context actually means 366 days-for example, from January 1, 2010, to January 1, 2011. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (applying Federal Rule of Civil Procedure 6(a) to AEDPA, where the calculation excludes the day the conviction became final). Thus, the first step in a statute of limitations analysis is determining the date on which the petitioner's conviction became final.

         Under 28 U.S.C. § 2244(d)(1)(A), the date of “finality” that begins the one-year time period is marked as follows, depending on how far a petitioner pursues his case:

         Action Taken Finality Occurs

No appeal is filed after state district court order or judgment

42 days later, see Idaho Appellate Rule 14

Appeal is filed and Idaho Court of Appeals issues a decision, but no petition for review is filed with the Idaho Supreme Court

21 days later, see Idaho Appellate Rule 118

Appeal is filed and Idaho Supreme Court issues a decision or denies a petition for review of an Idaho Court of Appeals decision, and Petitioner does not file a petition for writ of certiorari with the United States Supreme Court

90 days later, see United States Supreme Court Rule 13

After Idaho Supreme Court issues a decision or denies a petition for review, Petitioner files a petition for writ of certiorari to the United States Supreme Court, and the petition is denied

Date of denial

After Idaho Supreme Court issues a decision or denies a petition for review, Petitioner files a petition for writ of certiorari to the United States Supreme Court, the petition is granted, and the United States Supreme Court issues a decision

Date of decision

         In each of the above instances, if the petitioner stops pursuing the case and does not take the next step within the time specified, “finality” is measured from entry of final judgment or order, not from a remittitur or mandate, which are mere formalities. Gonzales v. Thaler, 565 ...


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