United States District Court, D. Idaho
INITIAL REVIEW ORDER
Honorable Candy W. Dale United States Magistrate Judge
Levi Martinez has filed a Petition for Writ of Habeas Corpus
challenging Petitioner's state court convictions. (Dkt.
3.) The Court now reviews the Petition to determine whether
it is subject to summary dismissal pursuant to 28 U.S.C.
§ 2243 and Rule 4 of the Rules Governing Section 2254
Cases (“Habeas Rules”).
Standard of Law for Review of Petition
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). The Court is required
to review a habeas corpus petition upon receipt to determine
whether it is subject to summary dismissal. Habeas Rule 4.
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.” Id.
1983, Petitioner was convicted of four unidentified criminal
charges and sentenced to imprisonment for two consecutive
30-year terms, followed by a consecutive 15-year term,
providing for a total fixed term of 15 years; Petitioner also
received a concurrent term of 25 years. (Dkt. 3 at 1-2.)
Petitioner pursued a direct appeal as well as state
post-conviction remedies. (Id. at 2-4.)
instant Petition for Writ of Habeas Corpus, Petitioner brings
four claims. He invokes the Sixth, Eighth, and Fourteenth
Amendments, as well as federal sentencing statutes.
Petition appears to be subject to summary dismissal for the
following reasons. Petitioner may respond to this Order
within 28 days, setting forth any reason why he believes his
Petition is not subject to dismissal.
Claims 1, 2, and 4 Are Noncognizable
Claims 1 and 4, Petitioner relies on an affidavit from the
victim's mother, who allegedly has a power of attorney
with respect to the victim. (Dkt. 3 at 6, 9.) The affidavit
purports to “Drop All Charges” against Petitioner
and to recant the affiant's testimony; the affidavit also
requests that Petitioner be released. (Dkt. 3-1 at 1.)
it is not entirely clear, Claims 1 and 4 appear to assert
actual innocence. Such a claim is not cognizable-meaning that
it is not a basis for relief and thus cannot be heard-on
federal habeas review in a noncapital case. Herrera v.
Collins, 506 U.S. 390, 404 (1993) (“[A] claim of
‘actual innocence' is not itself a constitutional
claim, but instead a gateway through which a habeas
petitioner must pass to have his otherwise barred
constitutional claim considered on the merits.”);
see also Cavanaugh v. Ellis, No. 1:13-CV-00295-CWD,
2014 WL 2208272, at *5 (D. Idaho May 28, 2014) (unpublished)
(“[I]n a noncapital case, a claim of actual innocence
is not cognizable on collateral review in a federal habeas
corpus action.”). However, as explained below, actual
innocence can be used to overcome a procedural bar,
which would allow a separate, independent constitutional
claim to be considered on the merits.
alleges that Petitioner's sentences are improperly
“multi-structured” and asserts a right to relief
under statutes applicable to federal criminal proceedings.
(Dkt. 3 at 7.) This claim is not cognizable because
Petitioner is not in custody pursuant to a federal
criminal judgment. Because Petitioner is ...