United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
LYNN WINMILL CHIEF JUDGE.
before the Court is a Petition for Writ of Habeas Corpus
filed by Idaho state prisoner Melvin Winn
(“Petitioner” or “Winn”), challenging
Petitioner's Ada County conviction of sexual abuse of a
minor under the age of sixteen. (Dkt. 1.) Respondent has
filed a Motion for Summary Dismissal, arguing that
Petitioner's claims are procedurally defaulted. (Dkt.
12.) Respondent has also filed a Motion to Strike
Petitioner's multiple unauthorized sur-replies. (Dkt.
18.) Both Motions are now ripe for adjudication.
Court takes judicial notice of the records from
Petitioner's state court proceedings, which have been
lodged by Respondent. (Dkt. 8.) See Fed. R. Evid.
201(b); Dawson v Mahoney, 451 F.3d 550, 551 n.1 (9th
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 for Summary Dismissal and
dismissing this case with prejudice.
Idaho Court of Appeals described the facts of
Petitioner's case as follows:
In 2008, Melvin Winn's granddaughter (J.H.) reported to
her mother that Winn touched her vagina. The mother relayed
this information to law enforcement and an officer
interviewed Winn. During the interview, Winn asserted that he
may have accidently touched J.H.'s vagina while playing
with her. Winn was not prosecuted at that time. In 2011,
J.H.'s brother, M.H., reported that he witnessed Winn
molesting J.H. Officers again interviewed Winn, who
acknowledged the allegations were “possible, ”
but denied any independent recollection due to use of
methamphetamine. Winn requested and was scheduled for a
polygraph. During the pre-test interview, Winn revealed to
the examiner that he sexually abused J.H. by touching her
vagina “on 5 or 6 different occasions.” He also
admitted to performing oral sex on J.H. “on 2 or 3
different occasions.” Winn explained these incidents
occurred around December 2008.
(State's Lodging B-4 at 1.)
Fourth Judicial District Court in Ada County, Idaho,
Petitioner was charged with one count of lewd conduct with a
minor under the age of sixteen, as well as a sentencing
enhancement based on a prior conviction for a registrable sex
offense. (State's Lodging D-8 at 1.) Petitioner pleaded
guilty to the lesser offense of sexual abuse of a minor under
the age of sixteen, and the State dismissed the sentencing
enhancement charge. Petitioner filed a motion to withdraw his
guilty plea, but the trial court denied that motion.
(State's Lodging A-2 at 24-26.) Petitioner received a
unified sentence of twenty-five years in prison with twelve
years fixed. (State's Lodging D-8 at 1.)
filed a direct appeal, initially arguing, under Idaho law,
that the trial court abused its discretion when in denying
the motion to withdraw Petitioner's guilty plea and that
Petitioner's sentence was excessive. (State's Lodging
B-1.) However, Petitioner's counsel conceded in
Petitioner's reply brief that Petitioner had not met the
standard for a motion to withdraw a guilty plea. (State's
Lodging B-3 at 1.) The Idaho Court of Appeals affirmed
Petitioner's sentence, and the Idaho Supreme Court denied
review. (State's Lodging B-4, B-6.)
then filed a petition for state post-conviction relief.
(State's Lodging C-1 at 4-9, 28-40.) The state district
court dismissed the petition, and Petitioner appealed.
(Id. at 96-101.) Petitioner was initially appointed
post-conviction appellate counsel, but counsel later
withdrew, with court approval. (State's Lodging D-1, D-2,
D-3.) Petitioner continued the appeal pro se, submitting a
one-page brief asserting ineffective assistance of trial
counsel and a violation of due process. (State's Lodging
D-6.) The Idaho Court of Appeals affirmed. The court held
that Petitioner had not submitted any admissible evidence to
support his ineffectiveness claim and that Petitioner had
waived his due process claim by failing to support it with
argument or authority. (State's Lodging D-8 at 5 and
n.1.) The decision of the court of appeals was issued on
March 25, 2016.
then petitioned the Idaho Supreme Court for review of the
decision of the court of appeals. (State's Lodging D-9.)
Pursuant to the Idaho Appellate Rules, a petition for review
must be filed within 21 days of the decision of the Idaho
Court of Appeals-making Petitioner's request for review
due on April 15, 2016. See Idaho App. R. 118. In his
petition, Petitioner certified that he “mailed a true
and correct copy of the [petition for review] via the prison
mail system for processing” on April 14, 2016.
(State's Lodging D-9.) This certification was not signed
under penalty of perjury, nor was it notarized.
petition was not received by the Idaho Supreme Court until
April 18, 2016- three days after the due date. (State's
Lodging D-10.) Noting that the petition for review
appeared to be untimely, the Idaho Supreme Court
conditionally dismissed the appeal and ordered Petitioner to
file a response within 14 days, “showing why this
Petition for Review should not be dismissed.”
(Id.) Petitioner did not respond to that order.
Therefore, the Idaho Supreme Court issued a final order of
dismissal. (State's Lodging D-11.)
instant habeas action, Petitioner does not include any claims
within the Petition itself. Rather, he has attached his
post-conviction appellate brief to the Petition, thereby
asserting the same claims as he asserted in that appeal: (1)
ineffective assistance of counsel under the Sixth Amendment
to the U.S. Constitution, as well as under Article I, Section
13 of the Idaho Constitution, and (2) a due process
violation. (Dkt. 1 at 6.)
Respondent's Motion to Strike
has filed several sur-replies in opposition to
Respondent's Motion for Summary Dismissal. (See
Dkts. 14-17.) Respondent moves to strike these briefs as
unauthorized. (Dkt. 18.)
(i.e., briefs filed in response to a reply brief) to motions
are not expressly permitted by the Local Rules or by the
Federal Rules of Civil Procedure, and this Court previously
ordered that “[n]o party shall file supplemental
responses, replies, affidavits or other documents not
expressly authorized by the Local Rules without first
obtaining leave of Court.” (Dkt. 4 at 4.) Petitioner
did not seek leave of Court before filing his multiple
pro se filings are liberally construed, pro se litigants must
follow the same rules of procedure that govern other
litigants. Ghazali v. Moran, 46 F.3d 52, 54 (9th
Cir. 1995) (per curiam). ...