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Smith v. Ramirez

United States District Court, D. Idaho

September 24, 2018



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

         Early in this federal habeas corpus matter, Respondent Alberto Ramirez filed a Motion for Summary Dismissal based on statute of limitations grounds (Dkt. 16), and Petitioner Dana Smith filed a response. (Dkt. 18.) The Court did not address the Motion for Summary Dismissal because Petitioner had a related state court action pending that warranted a stay. On March 21, 2016, the Court stayed this federal habeas corpus action, pending the conclusion of Petitioner's state court matter. The Motion for Summary Dismissal was deemed moot.

         On July 29, 2016, Petitioner notified the Court that his state court action had concluded. On February 17, 2017, the Court reopened the case and issued a notice of intent to dismiss the case on statute of limitations grounds. (Dkt. 31.) Petitioner was ordered to file a supplemental response no later than April 18, 2017. (Id.)

         Seven months later, on November 7, 2017, the Court issued an Order Requiring Action after it noted that Petitioner still had not filed a supplemental response to address the statute of limitations issue. (Dkt. 37.) The new deadline for filing a response was January 9, 2018. (Id.)

         Rather than filing a supplemental response, Petitioner filed several motions seeking additional items and appointment of counsel. Because Petitioner has already filed a response addressing the statute of limitations issue and has had adequate time and resources to file a supplement, the Court will not grant any further extensions but will address the issue on the briefing in the record. Accordingly, the Court enters the following Order.


         On October 3, 2004, Joshua Johnston, 23, met a man named Derrick at a nightclub in Salt Lake City, Utah. Derrick invited Johnston to his girlfriend's house, where Johnston met Petitioner Dana Smith, 37. Petitioner had just gotten out of jail and wanted to find a woman he knew, and so he and Johnston left the house and drove around the greater Salt Lake City area in Johnston's Mustang looking for her, without success. (State's Lodging A-5, pp. 257-59.)

         The pair stopped at Johnston's parents' home. Johnston's father noted that Petitioner wore a distinctive white hat with braided trim. After a short time, the pair drove to several more places, trying to obtain some marijuana. They ended up in Burley, Idaho, on October 4, 2004, the date of the crimes at issue. (Id., pp.258-61, 351-54.)

         During their journey, Johnston testified that Petitioner told him that Johnston's dad possibly was a secret government agent, and there was a group of three cars that were involved in a drug-running scheme, or something of that nature. (Id., p. 263.) Petitioner also told Johnston that he might know Johnston's ex-girlfriend and her mother, and that they might be involved in a witness protection program. (Id., p. 266.) Johnston testified that he thought Petitioner was telling the truth, and so he “kind of went along with everything that he said in the 24-hour period.” (Id.)

         The pair stopped at a bar, but the bartender wouldn't serve them because they didn't show their identification. Another bar patron told them that the Riverside Bar in Burley might still be open. They traveled around Burley to try to find the bar, without success.

         They stopped and parked at a Mexican restaurant, and then walked over to Hollywood video. They purchased some items in the video store. At trial the video store clerk was able to identify Petitioner by his clothing. (Id., pp.416-22.) When they left the store, they saw that police officers had barricaded the bridge leading to Johnston's car. Because they could not get back to the car, they then jumped the fence at the Deseret Industries, went around the back, and sat inside a semi-box full of old furniture for about an hour. (Id., pp. 267-73.)

         Johnston testified that, after the police removed the barricade and left, he and Petitioner walked across the street to the Payless Car Sales lot. Johnston urinated behind the office. (Id., pp. 273, 323.) Petitioner kicked in the door of the car lot office, found a box of keys, started rummaging through it, and began pushing remote buttons. Petitioner found keys to two Chevy Duramax quad-cab pickup trucks-maroon and red. Petitioner drove away in the maroon truck, and Johnston drove away in the red truck. (Id. p. 273.)

         They drove the trucks to Johnston's Mustang, where Johnston put his computer, printer, camera, and other items into the red truck. They next stopped at Walmart, where they purchased two clear license plate covers and a power inverter power cord to plug Johnston's printer into the truck. The pair was captured on video at Walmart-Petitioner in his distinctive hat. (Id., p. 211.)

         Johnston took a photograph of an 18-wheeler's “California Trailer” license plate. He altered it on his computer, removing the “Trailer” word. He printed it out on his computer twice, fit the copies into the license plate holders, and attached them to the trucks. The two stopped at a gas station and pumped gas into the trucks, and then Petitioner directed them back to the Payless car lot. While at the gas station, Johnston hit a concrete barrier and damaged the red truck. (Id., pp. 278-81.)

         Johnston testified that Petitioner rummaged through the Payless office desks and found a log book. Petitioner told Johnston that the log book showed Johnston's father had been bringing in deliveries of trailers and cars, that the log was filled with his father's handwriting, and that his father had helped arrange this as part of the witness protection program. Johnston says that they discussed returning to Utah to pick up Johnston's ex-girlfriend and her mother and bring them to Idaho. Petitioner told Johnston they [Petitioner and Johnston and/or the ex-girlfriend and her mother] were going to be managing the car lot and living in the trailer homes behind the car lot, where there was a unit prepared for them. (Id., pp. 290-91.)

         Petitioner next gave Johnston the keys to a silver Chevrolet SUV, and said they needed to take another car to Utah. Petitioner told Johnston to find a flatbed trailer that could carry the SUV. Meanwhile, Petitioner was trying to load another vehicle onto a cargo trailer. Both were unsuccessful at loading the vehicles onto the trailers. (Id., pp. 291-94.)

         At that point, Johnston called his father to try to get some advice about what he was supposed to be doing at the car lot. Johnston describes his father as “dumbfounded.” His father did not know what Johnston was talking about. Johnston's father told him to stay at the car lot, and he would drive to Idaho to try to help him figure things out. Petitioner was uneasy when he learned Johnston's father was coming and told Johnston that they just needed to get going with what they had. Johnston told Petitioner he wanted to wait for his father to come up and tell him what was going on. Petitioner got into the maroon truck with the attached cargo trailer and drove away in the direction of the interstate highway. (Id., pp. 294-95.)

         Johnston stayed, called the police, and talked to the owner of Payless. Johnston eventually entered into a plea agreement with the State in exchange for his trial testimony against Petitioner. (Id., pp. 297-99.)

         Petitioner was questioned by a police investigator on October 13, 2004. He said that he was purchasing a vehicle in Ogden, Utah, and he needed to secure another truck so that he could take parts from that truck and fix the other truck he wanted to buy. He also said he went to Burley, Idaho to test drive some vehicles on October 3 or 4, 2004.

         Petitioner admitted being in the Hollywood video store, but he said it was Johnston who walked across the street, broke into the Payless car lot office, stole the keys to a truck, and drove away, while Petitioner waited in the parked Mustang. Petitioner told the officer that he drove away in Johnston's Mustang. Petitioner stated that he left the Mustang at a store in Jerome and took a bus back to Salt Lake City, because he did not want to have anything else to do with Johnston. (Id., pp. 386-93.)

         Someone-however-drove the maroon truck and cargo trailer toward Utah, then abandoned the cargo trailer on the freeway near Malad, Idaho. Several weeks after the maroon truck was stolen, it was found undamaged, parked at an apartment complex in Ogden, Utah. (Id., pp. 213-14.)

         Based on the information provided by Johnston and the identification of Petitioner by the video store clerk and in the Walmart surveillance camera photo, Petitioner was charged with grand theft in a criminal complaint filed in the Fifth Judicial District Court in Minidoka County, Idaho. In a three-day trial in 2007, Petitioner was convicted by jury of grand theft, a felony. In 2008, he was sentenced to fourteen years in prison, with the first seven years fixed. Thereafter, Petitioner pursued a direct appeal, a post-conviction relief action, and numerous other actions in state court. All his efforts to overturn his conviction and sentence were unsuccessful.


         Petitioner filed a request for a copy of all the state court lodgings. (Dkt. 39.) His request crossed in the mail with Respondent's response to an earlier Order requiring Petitioner to clarify which parts of the state court record he was missing and Respondent to provide those missing parts of the record upon which Respondent relied for his Motion for Summary Dismissal. (Dkt. 37, 38.) Respondent has notified the Court that he mailed Petitioner a copy of all the lodgings upon which he relied for his Motion for Summary Dismissal. (Dkt. 38.) Petitioner has not made an adequate argument to show that he requires any further items to address the statute of limitations or related issues. Therefore, the Court will deem Petitioner's Motion Requesting Copy of Lodgings (Dkt. 39) moot.

         Petitioner has filed several motions for appointment of counsel. (Dkt. 40, 59.) There is no constitutional right to counsel in a habeas corpus action. Coleman v. Thompson, 501 U.S. 722, 755 (1991). A habeas petitioner has a right to counsel, as provided by rule, if counsel is necessary for effective discovery or if an evidentiary hearing is required in his case. See Rules 6(a) & 8(c) of the Rules Governing Section 2254 Cases. In addition, the Court may exercise its discretion to appoint counsel for an indigent petitioner in any case where required by the interests of justice. 28 U.S.C. § 2254(h); 18 U.S.C. § 3006A(a)(2)(B). Whether counsel should be appointed turns on a petitioner's ability to articulate his claims considering the complexity of the legal issues and his likelihood of success on the merits. See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

         Petitioner is a frequent litigator who also acts as a jailhouse lawyer for others. (See Dkt. A-3.) He has been able to adequately assert his interests in state and federal court as well as, or better than, any pro se inmate. The issues before the Court are not complex. Petitioner has access to his own mental health records during the time period in question, but has not made an effort to place those before the Court. In addition, the Court earlier notified Petitioner to prepare an affidavit or declaration explaining how he was able to file so many state court actions while the federal statute of limitations period was running, despite his allegations of debilitating mental limitations.

         These simple tasks do not require the help of an attorney. For these reasons, and because there is no need for discovery or an evidentiary hearing, the requests for appointment of counsel will be denied.

         Petitioner has filed two Motions for Discovery, a Motion for Production, a Motion to Expand the Record, and two Motions for a Hearing. (Dkts. 41, 42, 48, 50, 54, 55.)

         Petitioner requests a variety of items to help him show that he is actually innocent of grand theft.

         Petitioner earlier requested that Respondent be required to produce verifiable finger prints of Johnston, Petitioner's co-conspirator, who testified against him at trial.

         Petitioner also sought an NCIC criminal history report of Johnston. The Court determined:

Petitioner does not provide any reason why this information is relevant to the statute of limitations, equitable tolling, or actual innocence issues at hand. Discovery on the merits of the claims generally is not permitted in a habeas corpus action, and, in any event, would be premature. Therefore, the Court will deny the request without prejudice to Petitioner making a showing that the items are relevant to the threshold procedural issues.

(Dkt. 37, p. 2.)

         In his current motion, Petitioner again provides no explanation as to how the items he desires are going to demonstrate that he is factually innocent of grand theft, for example, a photo of the stolen truck, two copies of photos of the license plate, a photo of himself, and various items pertaining to his co-conspirator and witnesses. (Dkt. 41.)

         Petitioner was identified by the Hollywood Video clerk and in the Walmart surveillance camera photo on the date of the incident. Petitioner clearly was accompanied by Johnston at that time. Whether Petitioner took the maroon truck and cargo trailer is based solely on th testimony of Johnston, but there is enough corroborating circumstantial evidence to support Johnston's testimony.

         Petitioner has suggested that their mutual acquaintance Derrick was the person who stole the maroon truck and cargo trailer. However, Petitioner himself admitted to a police investigator that he was with Johnston the night of the break-in of the Payless Car Sales office. Derrick was not seen at the video store before the trucks were stolen, nor was he seem in the photo taken after the trucks were stolen. Petitioner, however, was seen with Johnston both before and after the trucks were stolen.

         Petitioner has come forward with no reasonable explanation why he would be with Johnston in Walmart after the trucks were stolen, standing by as Johnston selected and bought license plate holders and an inverter cord for his printer to print off new “license plates.” The jury clearly believed the story of Johnston-that it was Petitioner who stole the maroon truck and cargo trailer. Whether it was Petitioner or Johnston who originally broke in to the dealership was not the basis for a separate criminal charge. The only issue for the jury was whether Petitioner stole the maroon truck and trailer at about the same time that Johnston stole the red truck.

         The record makes it abundantly clear that Petitioner is not actually innocent. Petitioner has not revealed how any of the items he seeks will show his factual innocence. Therefore, the first Motion for Discovery will be denied.

         In his second Motion for Discovery, Petitioner seeks to propound interrogatories, requests for admissions, and requests for production to seven individuals, including his co-conspirator. As with Petitioner's earlier request for discovery, many of his requests are not relevant to the statute of limitations issue at hand. Those items that are somewhat relevant-such as the condition of his mental health before and during trial-are already contained in the state court record before the Court.

         One of the particular questions at issue is Petitioner's competence during the federal statute of limitations period-2011 to 2013-rather than his state of competency in 2004 to 2008. Petitioner had the time and ability to obtain his prison mental health records between 2011 and 2013, but did not submit them. This request will be denied.

         Petitioner's Motion for Production (Dkt. 42) requests additional portions of the record. The Court rejects Petitioner's argument that he needs additional state court records to show his actual innocence, because he has not stated how the items will aid in his showing. His reasoning included in the Motion is not focused on actual innocence, but legal innocence:

Petitioner advise[s] the Court that on March 31, 2008, a copy of the forged document which indicated that Mr. Joshua E. Johnston [co-conspirator] was born in Mississippi where he utilized the SSN [XXX-XX]-7435 and his real changes [were] filed during the sentencing hearing. These documents need to be produced to show the level of corruption and both judicial and prosecutorial misconduct.

(Dkt. 42, p. 4.) No additional portions of the record will be produced to Petitioner.

         Petitioner has also filed a Motion to Expand the Record. (Dkt. 55.) Petitioner alleges that the records will be used “to obtain evidence to show that the Petitioner is innocent of the alleged grand theft … of which Petitioner was illegally convicted on November 6, 2007. As noted above, the objects of his request suggest that he is attacking legal, not factual, innocence, for example, “the Lodgings for June 13, 2005, including waiver of speedy trial”; “the lodgings for April 10, 2007, including hearing audio recordings for CR2004-2628 on motions in limine”; “the lodgings for April 11, 2007, including order for psychiatric or psychological examination and order for payment of examination.” (Dkt. 55, p. 3.)[1] In addition, many of the items he requests already are contained within the record before the Court, and Respondent has provided those lodgings to Petitioner. Further, Petitioner has some state court records in his possession, but he has refused to provide a list of those to the Court despite an order to do so, instead asking for the entire lodging in this action. Therefore, this late request will be denied.

         Finally, because there is no need for a hearing in this matter, the requests for hearings will be denied. (Dkt. 48, 50.) Petitioner's attempts to show that he currently is delusional-despite his continuous filings that demonstrate his ability to protect his interests-are unavailing. (See Dkt. 48, stating that he is a federal agent who has been kidnapped by state actors, thwarting his investigation of terrorism in the court system in the continental United States;[2] Dkt. 50 (same); see also references to November 8, 2007 Mental Health Evaluation by Mike Waite, LCSW, in State's Lodging A-3, Presentence Investigation Report: “Due to his personality disorder … there is a risk of him acting out if he does not receive mental health treatment. However, this will be due to his manipulation of the system rather than being caused by an untreated mental illness. If he does not get the mental health treatment he wants, he may act out just to prove a point.”)


         Based upon the parties' earlier briefing of the statute of limitations issue, the Court preliminarily concluded that the original Petition in this matter was filed beyond the one-year mark. The Court notified the parties that it would entertain supplemental briefing from both parties to address whether equitable tolling is warranted or grounds exist for a showing of actual innocence, and to address whether Petitioner's latest round of state court filings had any impact on the statute of limitations issue. The Court has now reviewed the entirety of the record before it.

         1. Standards of Law

         A. Habeas ...

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