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Paulk v. Kempf

United States District Court, D. Idaho

March 24, 2018

THOMAS ZACHARY ALEC PAULK, Petitioner,
v.
KEVIN KEMPF and LAWRENCE WASDEN, Respondents.

          MEMORANDUM DECISION AND ORDER

          B. Lynn Winmill Chief U.S. District Court Judge.

         Petitioner Thomas Zachary Alec Paulk filed a Petition for Writ of Habeas Corpus challenging his state court conviction (Dkt. 3), followed by an Amended Petition (Dkt. 12), which is the operative pleading in this case. Respondent filed a Motion for Summary Dismissal, which is now fully briefed. (Dkts. 17, 24, 25.)

         The Court takes judicial notice of the records from Petitioner's state court proceedings, which have been lodged by the parties. See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (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.

         STANDARD OF LAW FOR MOTION FOR SUMMARY DISMISSAL

         When a petitioner's compliance with threshold procedural requirements is at issue, a respondent may file a motion for summary dismissal, rather than an answer. White v. Lewis, 874 F.2d 599, 602 (9th Cir. 1989). Rule 4 of the Rules Governing § 2254 Cases authorizes 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 that the petitioner is not entitled to relief in the district court.”

         REVIEW OF REQUEST FOR DISMISSAL ON STATUTE OF LIMITATIONS GROUNDS

         1. Standard 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.”[1] 28 U.S.C. § 2244(d)(1)(A). One year means 366 days, for example, from January 1, 2000, to January 1, 2001. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (applying Federal Rule of Civil Procedure 6(a) to AEDPA).

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

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 instance above, “finality” is measured from entry of the final judgment or order, not from a remittitur or mandate, which are mere formalities. Gonzales v. Thaler, 132 S.Ct. 641, 653 (2012); Clay v. United States, 537 U.S. 522, 529 (2003); Wixom v. Washington, 264 F.3d 894, 898 n.4 (9th Cir. 2001).

         AEDPA also contains a statutory tolling provision that stops or suspends the one-year limitations period from running during the time in “which a properly filed application for State postconviction or other collateral review . . . is pending.” 28 U.S.C. § 2244(d)(2) (emphasis added). The “time limits on postconviction petitions are ‘condition[s] to filing, ' such that an untimely petition [is] not deemed ‘properly filed.'” Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005) (quoting Artuz v. Bennett, 533 U.S. 4, 8, 11 (2000).

         For purposes of calculating the federal statute of limitations, this statutory tolling provision applies only to “pending” actions; therefore, the additional 21-, 42- and 90-day time periods associated with the calculation of finality after direct appeal are not applied to extend the tolling periods for post-conviction actions. However, unlike direct appeal “finality, ” the term “pending” does extend through the date of the remittitur for post-conviction actions.[2]

         The federal statute is not tolled between the date the direct appeal is “final” and the filing of a proper post-conviction application, or between post-conviction finality and any successive collateral review petition. Id. Each time statutory tolling ends, the statute of limitations does not restart at one year, but begins running at the place where it stopped before the post-conviction action was filed.

         Once the federal statute of limitations has expired, it cannot be reinstated or resurrected by a later-filed state court action. See Ferguson v. Palmateer, 321 F.3d 820, 822 (9th Cir. 2003) (“section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed”).

         If a petition is deemed untimely, a federal court can hear the claims if the petitioner can establish that “equitable tolling” should be applied. In Pace, the Supreme Court clarified that, “[g]enerally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way.” 544 U.S. at 418. In addition, there must be a causal link between the lateness and the extraordinary circumstances. See Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010) (as amended) (citation omitted). The petitioner bears the burden of bringing forward facts to establish a basis for equitable tolling. United States v. Marolf, 173 F.3d 1213, 1318, n. 3 (9th Cir. 1999).

         2. Background

         In the Seventh Judicial District in Bonneville County, Idaho, Petitioner was convicted by jury of one count of lewd conduct with a child under age sixteen and one count of forcible sexual penetration by use of a foreign object, a violation of Idaho Code § 18-6608, which requires a showing that the penetration was “for the purpose of sexual arousal, gratification, or abuse.”[3] In general, Petitioner asserts that he is wrongfully convicted, because there was no showing that he committed the act for a sexual reason; rather, he asserts that he became frustrated and angry when changing the two-year-old victim's diaper, and placed his finger in her vagina and pressed down with force, causing injury and bleeding, which subsequently required hospitalization and surgery to repair. (Dkt. 3-3, p. 1.) Petitioner also contests the trial court's admission of out-of-court statements at trial-when the child was transported to an urgent care center, she reportedly said to a health care provider, “Zackie did it to me, ” but the evidence also reflected that Petitioner admitted to the investigator that he placed his finger in her vagina, although he had several different stories of how or why he did so. (Dkt. 3-1.)

         After conviction, Petitioner filed a direct appeal and a post-conviction action. The State alleged that Petitioner's post-conviction action was filed too late, and Petitioner sought application of equitable tolling, because he calculated his filing date from the state court register of actions, which showed the date of the remittitur of the direct appeal action as November 14, 2013, even though the true date was October 9, 2013. The post-conviction action was dismissed as untimely-a ruling that was upheld on appeal.

         3. Discussion

         Petitioner's criminal judgment was issued on December 20, 2011. (State's Lodging A-1.) On direct review, the Idaho Supreme Court denied Petitioner's petition for review on October 9, 2013. (State's Lodging B-6.) A copy of the remitter in that action was mailed to Petitioner's counsel on October 10, 2013. Nothing in the record shows that Petitioner himself received a copy or that he had notice of the remittitur date.

         In an act of diligence, Petitioner checked the official register of actions in the state court. The register of actions showed a date of November 14, 2013, for the remittitur, with no indication on the record that the remittitur was actually issued more than a month earlier, on October 9, 2013. (For example, some courts show both a date the court clerk entered the order on the register and a date the order was issued.)

         As a result, Petitioner filed his state post-conviction petition on October 28, 2014 (mailbox rule), thinking he was several weeks ahead of the deadline, when, in fact, he was several weeks beyond the deadline. (See State's Lodgings C-2, D-1 to D-8.) According to Idaho statute, Petitioner's petition for post-conviction relief should have been filed within one year “from the expiration of the time for appeal or from the determination of an appeal or from the determination of a proceeding following an appeal, whichever is later.” Idaho Code § 19-4902(a).

         After Petitioner's case was dismissed for untimeliness, he pursued an appeal in the post-conviction matter. The Idaho Court of Appeals affirmed dismissal on untimeliness grounds on June 14, 2016. The Idaho Supreme Court denied Petitioner's petition for review, with the remittitur issued on September 16, 2016. (State's Lodgings D-4 & D-8.) Petitioner's original federal Petition was electronically filed on March 17, 2016. (Dkt. 3.)

         Respondent argues that, because the state post-conviction petition was deemed improperly filed by the state courts, it is improperly filed for federal statute of limitations purposes and cannot be used to toll the federal statute. The Court agrees that statutory tolling is inapplicable here based on Idaho's improper filing rule, but equitable tolling is still available under federal equitable tolling principles.

         A. Statutory Tolling

         Petitioner's judgment became final 90 days after it was entered, on January 8, 2014, which marked the expiration of the time period during which Petitioner could have filed a petition for certiorari with the United States Supreme Court. Petitioner's federal statute of limitations began running on January 8, 2014, with 366 days remaining.

         Because Petitioner's state post-conviction matter was deemed untimely by the state courts, it was not” properly filed” for federal habeas purposes. See Pace, 544 U.S. 414 (“when a postconviction petition is untimely under state law, that is the end of the matter for purposes of § 2244(d)(2)”) (punctuation altered, citation omitted). Therefore, the matter did not statutorily toll the federal statute of limitations, and the one-year time period expired on January 9, 2015.

         Petitioner's federal Petition for Writ of Habeas Corpus was signed on March 16, 2016, and filed on March 17, 2016. That was too late for statutory tolling to apply.

         B. Equitable Tolling

         The equitable tolling inquiry is different from the statutory tolling inquiry. Even if the state court concludes that the state post-conviction matter was untimely, the federal inquiry focuses on why the federal petition was untimely and is based on federal, not state, equitable tolling principles. Determining whether equitable tolling is warranted ...


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