United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief U.S. District Court Judge
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.
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.)
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.)
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
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.)
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.,
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
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.
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.
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.)
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.)
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.
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.
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).
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.
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.
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.)
requests a variety of items to help him show that he is
actually innocent of grand theft.
earlier requested that Respondent be required to produce
verifiable finger prints of Johnston, Petitioner's
co-conspirator, who testified against him at trial.
also sought an NCIC criminal history report of Johnston. The
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
(Dkt. 37, p. 2.)
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.)
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.
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.
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.
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.
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.
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.
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.
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.) 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.
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; 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
STATUTE OF LIMITATIONS ISSUE
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.
Standards of Law