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Kolestani v. Carlin

United States District Court, D. Idaho

September 30, 2019

MAJID KOLESTANI aka NASTARAN KOLESTANI, Petitioner,
v.
WARDEN TEREMA CARLIN, Respondent.

          INITIAL REVIEW ORDER

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

         Petitioner Majid Kolestani, also known as Nastaran Kolestani, filed a Petition for Writ of Habeas Corpus challenging her state court conviction and an Application to Proceed in Forma Pauperis. (Dkt. 1.) All named parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 7.) See 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73.

         The Court now reviews the Petition to determine whether the claims are subject to summary dismissal pursuant to 28 U.S.C. § 2243 or Rule 4 of the Rules Governing § 2254 Cases.

         REVIEW OF PETITION

         1. Standard of Law

         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). The Court is required to review a habeas corpus petition upon receipt to determine whether it is subject to summary dismissal. See Rule 4 of the Rules Governing Section 2254 Cases. 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.

         2. Background

         Petitioner Majid Kolestani, a transgender Iranian refugee also known as Nastaran Kolestani, is being held in the custody of the Idaho Department of Correction (IDCO). In 2009, Petitioner was charged with first degree murder and a weapon enhancement in a Twin Falls County, Idaho criminal action, arising from the shooting death of her husband. Petitioner pleaded guilty to first degree murder in exchange for dismissal of the weapon enhancement. Petitioner also agreed to forgo the right to file a direct appeal and a Rule 35 motion for leniency in sentencing. Petitioner was sentenced to 18 fixed years of imprisonment with life indeterminate. See Kolestani v. Idaho, 2018 WL 6715873 (Idaho Ct. App. 2018).

         Petitioner filed a post-conviction action, bringing claims of an involuntary plea and ineffective assistance of counsel. Her action was summarily dismissed, and the Idaho Court of Appeals affirmed dismissal. The Idaho Supreme Court denied the petition for review. See id. Petitioner then filed this federal habeas corpus action.

         3. Review of Claims

         Petitioner brings the following claims. First, she asserts that her plea agreement was not knowing, voluntary, or intelligent, and that her counsel was ineffective in directing her to sign it-alleged violations of the Fifth, Sixth, and Fourteenth Amendments. Second, she asserts that she did not knowingly and intelligently waive her Fifth Amendment right to decline police interrogation during their investigation, because she was under the influence of pain medication and had a language barrier. Third, she alleges that she was denied her Sixth Amendment right to effective assistance of counsel on several grounds surrounding her guilty plea. Fourth, Petitioner asserts that her defense counsel had a conflict of interest, also based on grounds related to her guilty plea.

         Petitioner may proceed on her claims to the extent that they are federally cognizable and are in a procedurally proper posture (or if not, legal or equitable excuses apply to excuse the default of any of the claims). Therefore, the Court will order the Clerk to serve a copy of the Petition on counsel for Respondent, who may respond either by answer or pre-answer motion and who shall provide relevant portions of the state court record to this Court.

         4. Request for Appointment of Counsel

         Petitioner seeks appointment of counsel, citing her language barrier and lack of legal training. 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 ...


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