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Rios Lopez v. Blades

United States District Court, D. Idaho

February 25, 2019

MARCOS A. RIOS LOPEZ, Petitioner,
v.
RANDY BLADES, Respondent.

          MEMORANDUM DECISION AND ORDER

          HONORABLE CANDY W. DALE, UNITED STATES MAGISTRATE JUDGE

         Pending before the Court in Marcos A. Rios-Lopez's federal habeas corpus matter are several motions filed by the parties. All named parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 21.) See 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. 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 reviewed the motions, responses, and the record in this case, the Court enters the following Order.

         PETITIONER'S MOTION FOR APPOINTMENT OF COUNSEL

         Petitioner filed a Motion for Appointment of Counsel, asserting that his English skills are very poor and that he has no legal training to properly pursue his case. (Dkt. 11).

         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 in light of 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).

         After reviewing the entire record, the Court concludes that appointing counsel would not be helpful to the decisionmaking in this case. The issue of timeliness is straightforward. Petitioner can respond with factual showings regarding equitable tolling and actual innocence, neither of which is legally complex.

         RESPONDENT'S MOTION FOR SUMMARY DISMISSAL

         On November 13, 2018, Respondent filed a Motion for Summary Dismissal, seeking dismissal of all of Petitioner's claims. Petitioner's response was due 30 days later, but, to date, Petitioner has not filed a response, nor has he filed a motion for extension of time. He did, however, file a consent-to-magistrate judge form, and so it is clear that he has not abandoned his case. (Dkt 21.) Because perhaps Petitioner is waiting until his request for appointment of counsel is ruled upon before he attempts to draft his own response, the Court will permit additional time for a response, which shall be in the form of a response to this Order to show that the conditional ruling below should not be made final.

         1. Standards of Law

         A. Habeas Corpus Review

         Federal habeas corpus relief under 28 U.S.C. § 2254 is available to petitioners who show that they are held in custody under a state court judgment and that such custody violates the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 2254(a). Summary dismissal is appropriate where “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.” See Rule 4 of the Rules Governing Section 2254 Cases. 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).

         B. Statute of Limitations

         The Antiterrorism and Effective Death Penalty Act (AEDPA) requires a petitioner to seek federal habeas corpus relief within one year from several triggering dates specified in 28 U.S.C. § 2244(d)(1)(A)-(D). Which trigger is applicable depends on the nature and timing of the petitioner's claims. The first trigger, § 2244(d)(1) provides a means of calculating the limitations start date for the “application” as a whole, § 2244(d)(1)(A) (date of final judgment). The remaining three triggers require claim-by-claim consideration, § 2244(d)(1)(B) (governmental interference); § 2244(d)(1)(C) (new right made retroactive); § 2244(d)(1)(D) (new factual predicate). See Mardesich v. Cate, 668 F.3d 1164 (9th Cir. 2012), relying in part on dicta in Pace v. DiGuglielmo, 544 U.S. 408, 416 n.6 (2005)).

         In all instances, 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).

         The most common trigger is the first one, “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). That date can be calculated as follows.

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 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


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