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Folds v. Blades

United States District Court, D. Idaho
Dec 16, 2004
Case No. CV 04-0144-S-BLW (D. Idaho Dec. 16, 2004)

Opinion

Case No. CV 04-0144-S-BLW.

December 16, 2004


ORDER


The Court previously dismissed this habeas corpus case without prejudice after determining that Petitioner had not exhausted his state court remedies. (Docket No. 9.) The Court and the Ninth Circuit Court of Appeals have both denied Petitioner's requests for a certificate of appealability. (Docket Nos. 12 13.) Now, nearly five months after the Court dismissed his case, Petitioner has filed a Motion for Reconsideration and Rehearing, arguing for the first time that he had, in fact, exhausted his state court remedies. (Docket No. 14.) Petitioner has filed documents with his Motion that tend to support this contention, and he has also lodged a new habeas Petition.

Given the tardiness of Petitioner's exhaustion argument, the Court will deny his Motion for Reconsideration and this case will not be reopened. However, because the case was dismissed without prejudice to refiling, and because it appears that the new Petition is timely, the Court will order the Clerk of Court to docket the new Petition under a new case number. The Court will then conduct an initial review of that Petition and the case will proceed under the new case number.

Petitioner's judgment of conviction became final at the conclusion of his direct appeal on August 7, 2003. After the expiration of the 90 days to file a petition for writ of certiorari in the United States Supreme Court, Petitioner's one-year federal statute of limitations began to run on November 6, 2003. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). Petitioner signed his new Petition on October 27, 2004, and lodged it in this Court on November 2, 2004. Petitioner is likely entitled to tolling of the limitations period while his state post-conviction petition was pending, but even without the benefit of tolling, it appears that his federal Petition is timely. See 28 U.S.C. § 2244(d).

ORDER

NOW THEREFORE IT IS HEREBY ORDERED that Petitioner's Motion for Reconsideration and Rehearing (Docket No. 14) is DENIED.

IT IS FURTHER ORDERED that the Clerk of Court shall open a new case and docket the Petition for Writ of Habeas Corpus that was filed in this Court on November 2, 2004, together with Petitioner's other supporting documentation, under the new case number. The Clerk shall also docket Petitioner's Application for In Forma Pauperis Status (Docket No. 17), and Petitioner's Statement of Trust Fund Account (Docket No. 18) under the new case number. After the new case has been opened, this Court will conduct an initial review of the Petition.

IT IS FURTHER ORDERED that Petitioner's Motion to File a Memorandum of Supporting Facts (Docket No. 16) is GRANTED. The Court has considered Petitioner's Memorandum.

IT IS FURTHER ORDERED that Petitioner's Motion to Proceed In Forma Pauperis (Docket No. 17) is DENIED as MOOT, but it will be reconsidered in the new case.

IT IS FURTHER ORDERED that Petitioner's Motion for Extension of Time (Docket No. 15) is DENIED as MOOT.


Summaries of

Folds v. Blades

United States District Court, D. Idaho
Dec 16, 2004
Case No. CV 04-0144-S-BLW (D. Idaho Dec. 16, 2004)
Case details for

Folds v. Blades

Case Details

Full title:WILLIAM R. FOLDS, Petitioner, v. RANDY BLADES, et al., Respondents

Court:United States District Court, D. Idaho

Date published: Dec 16, 2004

Citations

Case No. CV 04-0144-S-BLW (D. Idaho Dec. 16, 2004)