Opinion
Case No. CV-04-210-S-MHW
May 10, 2004
INITIAL REVIEW ORDER
Petitioner Sidney David Dopp filed a Petition for Writ of Habeas Corpus on April 30, 2004. Petitioner has consented to proceeding before a magistrate judge. The Court now reviews the Petition to determine whether it is subject to summary dismissal pursuant to 28 U.S.C. § 2243 or Rule 4 of the Rules Governing ¶ 2254 Cases.
1. BACKGROUND
Petitioner was charged with several felonies as a result of separate incidents occurring in April and August of 1989. Petitioner entered guilty pleas on three of the felony charges. As a result, his first conviction was entered by the Seventh Judicial District Court for the State of Idaho on May 31, 1989. Petitioner later filed a Motion to Withdraw the Guilty Plea, which was denied. However, in 1993, the Idaho Supreme Court reversed the District Court on two of the guilty pleas, and remanded the case.In 1996, Petitioner proceeded to trial on one charge of battery with intent to commit rape, was found guilty by the jury, and was sentenced to a ten-year determinate term of imprisonment. On appeal after remand, the Idaho Court of Appeals affirmed the judgment and conviction. The Idaho Supreme Court denied Petitioner's Petition for Review on February 10, 1997. Petitioner later filed various post-conviction matters, the latest of which apparently concluded in April of 2004.
II. REVIEW OF PETITION
A. Standard of Law
To have a habeas corpus petition heard in federal court, a petitioner must allege that he is held in custody under a state court judgment and that the custody violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a), The Court is required to review the petition upon receipt to determine whether it is subject to summary dismissal. 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 exhibits annexed to it that the petitioner is not entitled to relief in the district court." Id,
B. Discussion
It is unclear from the Petition whether Petitioner has stated cognizable habeas corpus claims, whether any of his claims arc procedurally defaulted, and whether his Petition has been timely filed. It is necessary for the Court to review portions of the state court record to resolve these issues, and it would also be helpful to the Court to have a response from the State in this matter. Therefore, the Court will order the Clerk to serve a copy of the Petition on 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.
Given Petitioner's status as a pro se litigant, the Court provides the following habeas corpus standards of law, which may or may not apply to Petitioner's case, depending on Respondent's response.
1. Statute of Limitation
The Petition in this case, filed on October 23, 2003, is governed by the provisions of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) (enacted in 1996). Under AEDPA, a one-year period of limitation applies to an application for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The one-year period usually begins to run from the date the state court 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).
The statute provides tolling (delaying) of the one-year period for all of "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). Thus, to the extent that Petitioner properly filed an application for post-conviction relief in state court, or other collateral review, the time that the application was pending in state court will not count toward the one-year limitation period.
The limitation period also may be equitably tolled under exceptional circumstances. For equitable tolling to be applicable, a petitioner must show that extraordinary circumstances beyond his control made it impossible to file the habeas petition in time. See Miles v. Prunty, 187 F.3d 1104 (9th Cir. 1999); see also Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir. 2000) (holding that lack of access to AEDPA materials in prison may (1) constitute a state-created impediment that delays the beginning of the one-year period under 28 U.S.C. § 2244(d)(1)(B), or (2) may equitably toll the statute).
2. Exhaustion and Procedural Default
In addition to satisfying AEDPA's statute of limitation requirement, a petitioner must also have "exhausted" his state court remedies before pursuing a claim in a federal habeas petition. 28 U.S.C. § 2254(b). To exhaust a claim, a habeas petitioner must first have fairly presented it to the highest state court for review in the manner prescribed by state law. See O'Sullivan v, Boerckel, 526 U.S. 838, 845 (1999). Unless a petitioner has exhausted his state court remedies relative to a particular claim, a federal district court cannot grant relief on that claim, although it does have the discretion to deny the claim. 28 U.S.C. § 2254(b)(2).
Petitioner must also be mindful that state remedies arc considered technically exhausted, but not properly exhausted, if he failed to pursue a federal claim in state court and there are no remedies now available. O'Sullivan, 526 U.S. at 848. A claim may also be considered exhausted, though not properly exhausted, if a petitioner pursued a federal claim in state court, but the state court rejected the claim on an independent and adequate state law procedural ground. Coleman v. Thompson, 501 U.S. 722, 731-732 (1991). Under these circumstances, the claim is considered to have been "procedurally defaulted." Coleman, 501 U.S. at 731. A procedurally defaulted claim will not be heard in federal court unless the petitioner shows either that there was legitimate cause for the default and that prejudice resulted from the default, or, alternatively, that the petitioner is actually innocent and a miscarriage of justice would occur if the federal claim is not heard. Id.
To show "cause" for a procedural default, a petitioner must ordinarily demonstrate that some objective factor external to the defense impeded his or his counsel's efforts to comply with the state procedural rule at issue. Murray v. Carrier, 477 U.S. 478, 488 (1986). To show "prejudice," a petitioner bears "the burden of showing not merely that the errors [in his proceeding] constituted a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional dimension." United States v. Frady, 456 U.S. 152, 170 (1982).
If a petitioner cannot show cause and prejudice for his procedural default, he can still bring the claim in a federal habeas petition if he demonstrates that failure to consider the claim will result in a "fundamental miscarriage of justice," which means that a. constitutional violation has probably resulted in the conviction of someone who is actually innocent. Murray v. Carrier, 477 U.S. at 496. To satisfy this standard, a petitioner must make a colorable showing of factual innocence. Herrera v. Collins, 506 U.S. 390, 404 (1993). If a petitioner brings forward new evidence not presented at. trial which tends to show his innocence, the Court must then determine whether, "in light of the new evidence, no juror, acting reasonably, would have voted to find [the defendant] guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 329 (1995). Upon such a showing, a petitioner may proceed with his claims, provided that his claim of actual innocence is accompanied by an assertion of nonharmless constitutional error at trial. Id. at 316.
3. Claims Proceeding on Merits
For any of Petitioner's claims that meet these procedural requirements and proceed on the merits, Petitioner shall bear the burden of proving that the state court judgment either "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or that it "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
III. OTHER MOTIONS
Petitioner has requested appointment of counsel. 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 an evidentiary hearing is required in his case. See Rule 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).
It is unclear whether Petitioner will be able to proceed on the merits of his case or whether an evidentiary hearing will be necessary. As a result of the foregoing, Petitioner's motion is denied. The Court will reconsider the issue at a later date if it appears that a hearing is necessary or that appointment is appropriate for another reason.
IV. ORDER
NOW THEREFORE IT TS HEREBY ORDERED that Petitioner's request for appointment of counsel, contained in his Petition for Writ of Habeas Corpus, is DENIED. The Court will reconsider appointing counsel later in this action, if necessary.
IT IS FURTHER HEREBY ORDERED that the Clerk of Court shall serve a copy of the Petition (Docket No. 1), with exhibits, together with a copy of this Order, on the Attorney General for the State of Idaho, on behalf of Respondent, as follows:
L. LaMont Anderson Office of the Idaho Attorney General P.O. Box 83720 Boise, ID 83720-0010.
IT IS FURTHER HEREBY ORDERED that Respondent shall file an answer or other appropriate pre-answer motion conforming in all respects to the Rules Governing Section 2254 Cases in the United States District Courts within 120 days after entry of this Order. Respondent shall file with the responsive pleading or motion, or within a reasonable time period thereafter, a copy of all portions of the state trial record that have been transcribed previously which arc relevant to a determination of the issues presented.
IT IS FURTHER HEREBY ORDERED that any state court pre-sentence evaluation reports shall be filed under seal of this Court without an accompanying motion.
IT IS FURTHER HEREBY ORDERED that Respondent and Petitioner shall file any motions for summary judgment within 180 days after entry of this Order. A motion for summary judgment shall fully brief all claims and issues raised in the Petition and contain appropriate citations to the record. Responses to such motions shall be due within 30 days after service of motions; reply briefs shall be due within 14 days after service of responses. These deadlines supersede those specified in the "Notice to Pro Se Litigants of the Summary Judgment Rule Requirements." No party shall file supplemental responses, replies, affidavits or other documents not expressly authorized by the Local Rules without first obtaining leave of Court.
IT IS FURTHER HEREBY ORDERED that no discovery shall be undertaken in this matter unless a party obtains prior leave of Court. pursuant to Rule 6 of the Rules Governing Section 2254 Cases.
IT IS FURTHER HEREBY ORDERED that the parties need not file the following in this matter: (1) notices of non-objections to motions to which they do not object; (2) responses to motions which are meritlcss; or (3) notices of intent not to file a reply. If additional briefing is required on any motion, the Court will order it.
IT IS FURTHER HEREBY ORDERED that each party shall ensure that all documents filed with the Court are simultaneously served by first-class mail upon the opposing party (through counsel if the party has counsel), pursuant to Federal Rule of Civil Procedure 5. Each party shall sign and attach a proper mailing certificate to each document filed with the court, showing the manner of service, date of service, address of service, and name of the person upon whom service was made. The Court will not consider ex parte requests unless a motion may be heard ex parte according to the rules and the motion is clearly identified as requesting an ex parte order, pursuant to Local Rule 7.2. ( "Ex parte" means that a party has provided a document to the court, but that the party did not provide a copy of the document to the other party to the litigation.)
IT IS FURTHER HEREBY ORDERED that all Court filings requesting relief or requesting that the Court make a ruling or take an action of any kind must be in the form of a pleading or motion, with an appropriate caption designating the name of the pleading or motion, served on all parties to the litigation, pursuant to Federal Rules of Civil Procedure 7, 10 and 11, and Local Rules 5.1 and 7.1. The Court will not consider requests made in the form of letters.
IT TS FURTHER HEREBY ORDERED that Petitioner shall at all times keep the Court and Respondent advised of any changes in address.