United States District Court, D. Idaho
SUCCESSIVE REVIEW ORDER
W. DALE, UNITED STATES MAGISTRATE JUDGE
19, 2019, the Court reviewed Petitioner Robert Wesley
Tibbitts's petition for writ of habeas corpus and
instructed Petitioner to file an amended petition.
(See Initial Review Order, Dkt. 11.) Petitioner has
done so. (Dkt. 13).
Court now reviews the Amended Petition pursuant to 28 U.S.C.
§ 2243 and Rule 4 of the Rules Governing Section 2254
Cases (“Habeas Rules”).
OF AMENDED PETITION
Standard of Law for Review of Petition
Court stated in its Initial Review Order, federal habeas
corpus relief 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.
the Amended Petition does not identify the conviction from
which Petitioner seeks relief in this action, the Bingham
County iCourt database indicates that, in No. CR-2011-2275,
Petitioner was convicted of felony DUI and committed two
probation violations. See iCourt Database, Bingham
County, https://icourt.idaho.gov/ (accessed Aug. 8,
Amended Petition for Writ of Habeas Corpus, Petitioner brings
four claims, all of which appear to allege that Petitioner
will be incarcerated for longer than his sentence permits-or
that his sentence exceeds the statutory maximum-because, on
revocation of probation, Petitioner did not receive credit
for time served on probation. (See Dkt. 13 at 3-6.)
That is, Petitioner appears to assert that the forfeiture of
time served on probation (also known as “street
time”) violates the Due Process Clause of the
Fourteenth Amendment. Petitioner may also be alleging that the
state district court extended or otherwise
“modified” his sentence. (Id. at 6.)
appears from the face of the Petition that Petitioner is not
entitled to habeas relief. All of Petitioner's claims
appear to be based on the forfeiture of street time, which is
not an available basis for relief. In Roberts v. United
States, 320 U.S. 264 (1943), the United States Supreme
Court rejected a similar challenge in the context of
reinstating an original sentence without credit for time
served on probation. The Court held that it was
constitutional for federal courts to suspend imposition of a
sentence pending probation and later impose the original
sentence upon revocation of probation under a federal
statutory scheme. Id. at 272-73.
Ninth Circuit Court of Appeals has similarly held. In
Peltier v. Wright, 15 F.3d 860, 862 (9th Cir. 1994),
the court upheld as constitutional a forfeiture of five
years' probation time when an Idaho state court imposed
an originally withheld sentence of twenty years after a
probation revocation. As one court explained, such a sentence
is not “increased or extended, ” but
“merely ... interrupted and deferred by the fact of [a]
conditional release.” Woods v. Steiner, 207
F.Supp. 945, 952 (D. Ma. 1962).
unclear whether Petitioner asserts a basis for habeas relief
other than the forfeiture of street time. Therefore, the
Court will grant Petitioner one final opportunity to amend.
Within 14 days after entry of this Order, Petitioner must
file a second amended petition that omits any claims based on
forfeiture of street time.