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Ash v. Blades

United States District Court, D. Idaho

March 8, 2019

TERRY LEE ASH, Petitioner,
v.
RANDY E. BLADES, Respondent.

          MEMORANDUM DECISION AND ORDER

          HONORABLE RONALD E. BUSH, CHIEF U.S. MAGISTRATE JUDGE

         Petitioner Terry Lee Ash filed a Petition for Writ of Habeas Corpus challenging his state court conviction and sentence for driving under the influence, with a persistent violator enhancement. (Dkt. 3.) Now pending before the Court are several motions filed by the parties that are ripe for resolution. All named parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 11.) 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 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.

         PRELIMINARY MOTIONS

         1. Motions re: Timing of Filings

         Petitioner has filed a Motion to Clarify and Correct Due Date to Respond to Motion for Partial Summary Dismissal, as well as a Motion for Extension of Time to File Response. (Dkts. 24, 22.) Petitioner has since filed his Response at Docket 26. The Motions will be granted and the Response will be considered timely.

         2. Motion for Appointment of Counsel

         Petitioner seeks appointment of counsel, because he was scheduled to have extensive surgery last fall, and he did not believe he could keep up with the litigation during recovery. 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).

         In the screening order, Court concluded that, based on the evidence currently in the record (Dkt. 2), it was unlikely that Petitioner would be able to meet the strict standards of 28 U.S.C. § 2254(d) for issuance of a writ of habeas corpus. Presently, the Court will deny Petitioner's request for appointment of counsel. A review of the claims at issue shows that Respondent's defenses are straightforward and resolvable based upon the state court record. Neither discovery nor an evidentiary hearing is required for these preliminary issues. See Rules 6(a) & 8(c) of the Rules Governing Section 2254 Cases; 28 U.S.C. § 2254(h); 18 U.S.C. § 3006A(a)(2)(B); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

         Petitioner has been granted an extension of time to accommodate his recovery period. As of today, he has completed the briefing of the motion at issue, and, therefore, no prejudice will result in denial of the request for appointment of counsel. Nevertheless, the Court will reconsider Petitioner's request for appointment of counsel at each phase of this litigation, without the need for Petitioner to file another motion.

         REVIEW OF MOTION FOR PARTIAL 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.”

         Respondent requests that the Court dismiss with prejudice the following claims contained in the Petition for Writ of Habeas Corpus for the following reasons: Claim 3(b) on procedural default grounds, and Claims 2(b) and 3(a) on non-cognizability grounds.

         1. Standard of Law Governing Procedural Default

         A habeas petitioner must exhaust his or her remedies in the state courts before a federal court can grant relief on constitutional claims. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To do so, the petitioner must invoke one complete round of the state's established appellate review process, fairly presenting all constitutional claims to the state courts so that they have a full and fair opportunity to correct alleged constitutional errors at each level of appellate review. Id. at 845. In a state that has the possibility of discretionary review in the highest appellate court, like Idaho, the petitioner must have presented all of his federal claims at least in a petition seeking review before that court. Id. at 847. ...


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