EDWARD J. LODGE, District Judge.
Pending before the Court is Petitioner Jason Ryan McDermott's Petition for Writ of Habeas Corpus. (Dkt. 3.) Respondent has filed a Motion for Summary Dismissal, arguing that the Petition is barred by the one-year statute of limitations and that the claims in the Petition are procedurally defaulted or noncognizable. (Dkt. 11.) The Motion is now ripe for adjudication.
Having carefully reviewed the record, including the state court record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d).
Accordingly, the Court enters the following Order granting the Motion and dismissing all the claims in the Petition as untimely.
The facts underlying Petitioner's conviction are set forth clearly and accurately in State v. McDermott, Docket No. 32071, Op. 518 (Idaho Ct. App. July 2, 2009) (unpublished), which is contained in the record at State's Lodging B-4. The facts will not be repeated here except as necessary to explain the Court's decision.
Petitioner was convicted by a jury in the Fourth Judicial District in Ada County, Idaho, of first-degree murder and conspiracy to commit first-degree murder, as well as a firearm enhancement. (State's Lodging B-4 at 1.) After the jury was unable to reach a unanimous verdict with respect to the aggravating factors necessary to render Petitioner eligible to receive the death penalty, the trial court sentenced Petitioner to two concurrent terms of life imprisonment without the possibility of parole for the murder and the conspiracy convictions, as well as an additional sentence of 10 years for the firearm enhancement. (Id. at 3.)
Petitioner appealed, arguing that his sentences were excessive and constituted an abuse of discretion. (State's Lodging B-1.) The Idaho Court of Appeals affirmed. State's Lodging B-4.) The Idaho Supreme Court denied review on August 24, 2009. (State's Lodging B-7.)
On March 24, 2010—at the earliest
On December 21, 2012, Petitioner filed a successive petition for postconviction relief in the state district court. (State's Lodging E-1 at 4-71.) The trial court dismissed the successive petition on several different grounds—Petitioner's claims were determined to be (1) meritless, (2) barred pursuant to Idaho Code § 19-4908, Idaho's successive petitions bar, (3) barred because they should have been raised on direct appeal, (4) barred on the grounds of res judicata, or (5) barred as untimely. (Id. at 139-52.) The Idaho Court of Appeals affirmed the dismissal of all claims relevant to these proceedings as untimely.
Petitioner filed his Petition in this Court, at the earliest, on September 8, 2015. (Dkt. 3 at 19.)
In the instant federal habeas corpus petition, Petitioner asserts the following claims:
(Pet., Dkt. 3, at 6-18; Initial Review Order, Dkt. 7, at 2-4.)
Respondent argues that Petitioner's claims are barred by the one-year statute of limitations. The Court agrees. Because Petitioner (1) is entitled to statutory tolling of only part of the statute of limitations period, (2) is not entitled to equitable tolling, and (3) has not made a colorable showing of actual innocence, the Court will dismiss the Petition with prejudice as untimely.
Rule 4 of the Rules Governing § 2254 Cases authorizes the Court to summarily dismiss a petition for writ of habeas corpus when "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." The Court may also take judicial notice of relevant state court records in determining whether to dismiss a petition.
The Antiterrorism and Effective Death Penalty Act ("AEDPA") requires a petitioner to seek federal habeas corpus relief within one year from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review."
Under 28 U.S.C. § 2244(d)(1)(A), the date of "finality" that begins the one-year time period is marked as follows, depending on how far a petitioner pursues his case:
In each of the above instances, if the petitioner stops pursuing the case and does not take the next step within the time specified, "finality" is measured from entry of final judgment or order, not from a remittitur or mandate, which are mere formalities. Gonzales v. Thaler, 132 S.Ct. 641, 653 (2012); Clay v. United States, 537 U.S. 522, 529 (2003); Wixom v. Washington, 264 F.3d 894, 898 n.4 (9th Cir. 2001). That is, finality occurs on the date of the final order terminating direct review. In Idaho, the final order terminating a direct appeal is either (1) the Idaho Supreme Court's decision in a direct appeal, or (2) in cases where the Idaho Court of Appeals decides the direct appeal and the Idaho Supreme Court declines to review that decision, the Idaho Supreme Court's denial of a petition for review from the decision of the court of appeals.
The one-year statute of limitations can be tolled (or suspended) under certain circumstances. First, AEDPA provides for tolling for all of "[t]he time during which a properly filed application for State post-conviction or other collateral review . . . is pending." 28 U.S.C. § 2244(d)(2). A motion to reduce a sentence that is not a part of the direct review process and that requires re-examination of the sentence qualifies as a collateral review application that tolls the one-year statute of limitations. Wall v. Kholi, 562 U.S. 545, 555-56 (2011). Thus, to the extent that a petitioner properly filed an application for postconviction relief or other collateral challenge in state court, the one-year federal limitations period stops running on the filing date of the state court action and resumes when the action is completed.
The time before a petitioner files an initial application for collateral review in state court, however, does not toll the statute of limitation. Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) ("AEDPA's statute of limitations is not tolled from the time a final decision is issued on direct state appeal and the time the first state collateral challenge is filed because there is no case `pending' during that interval."), abrogated on other grounds as stated in Nedds v. Calderon, 678 F.3d 777, 781 (9th Cir. 2012). Further, AEDPA "does not permit the reinitiation of the [federal] limitations period that has ended before the state petition was filed." Ferguson v. Palmateer, 321 F.3d 820, 822 (9th Cir. 2003). Additionally, any postconviction petition or other collateral proceeding that is untimely under state law is not considered "properly filed" and thus does not toll the statute of limitation. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005).
If, after applying statutory tolling, a habeas petition is deemed untimely, a federal court can still hear the merits of the claims if the petitioner can establish that "equitable tolling" should be applied to toll the remaining time period. See Jorss v. Gomez, 311 F.3d 1189, 1192 (9th Cir. 2002) ("[A] court must first determine whether a petition was untimely under the statute itself before it considers whether equitable tolling should be applied."). The limitations period may be equitably tolled under exceptional circumstances. "[A] petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks omitted). To qualify for equitable tolling, a circumstance must have caused a petitioner to be unable to file his federal petition on time. Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009).
In addition, the statute of limitations is subject to an actual innocence exception. A petitioner who satisfies the actual innocence gateway standard may have his otherwise time-barred claims heard on the merits. McQuiggin v. Perkins, 133 S.Ct. 1924, 1931-32 (2013); Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (en banc). Actual innocence in this context means "factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 624 (1998). Although "habeas petitioners who assert convincing actual-innocence claims [need not] prove diligence to cross a federal court's threshold," a court "`may consider how the timing of the submission and the likely credibility of a petitioner's affiants bear on the probable reliability of evidence of actual innocence.'" McQuiggin, 133 S. Ct. at 1935 (quoting Schlup, 513 U.S. at 332) (alterations omitted).
Because Petitioner did not file a petition for certiorari when litigating his direct appeal, Petitioner's conviction became final on November 22, 2009, 90 days after the Idaho Supreme Court denied the petition for review of the decision of the Idaho Court of Appeals. See U.S.S.Ct. Rule 13. Absent tolling, the statute of limitations period would have expired one year later, on November 22, 2010. Petitioner filed his Petition in this Court on September 8, 2015. Therefore, the claims in the Petition are barred by AEDPA's one-year statute of limitations unless Petitioner establishes that he is entitled to statutory or equitable tolling or that he is actually innocent.
As set forth above, AEDPA's one-year limitations period is tolled for all of the 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). Petitioner filed his initial state postconviction petition on March 24, 2010.
Therefore, 122 days of the limitations period had already passed between the date Petitioner's conviction became final (November 22, 2009) and the date Petitioner filed his initial postconviction petition (March 24, 2010). Petitioner thus had 244 days remaining (366 days minus 122 days) when his postconviction proceedings concluded— that is, when the Idaho Supreme Court issued the remittitur in the postconviction case.
Therefore, Petitioner's federal Petition was due in this Court on or before February 21, 2013 (244 days after June 22, 2012). Although Petitioner filed a successive postconviction petition in state court, that petition was not "properly filed," because the Idaho Court of Appeals determined that the successive petition was untimely under state law. (State's Lodging F-8 at 3-5.) Thus, Petitioner's successive state postconviction petition cannot serve to toll statute of limitations. See 28 U.S.C. § 2244(d)(2); Pace, 544 U.S. at 414.
Even with statutory tolling during Petitioner's initial postconviction proceedings, Petitioner's September 8, 2015 federal petition was still filed over two and one-half years too late. Therefore, Petitioner's claims can be deemed timely only if he is entitled to equitable tolling.
As noted above, equitable tolling will apply if (1) the petitioner has pursued his rights diligently and (2) extraordinary circumstances stood in his way and prevented a timely filing. Holland, 560 U.S. at 649. "[T]he threshold necessary to trigger equitable tolling under AEDPA is very high, lest the exceptions swallow the rule." Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (internal quotation marks and alteration omitted). As to the diligence issue, the Supreme Court has held that a petitioner who "waited years, without any valid justification" to bring his postconviction claims in state court, and then waited "five more months after his [postconviction] proceedings became final before deciding to seek relief in federal court," had not acted diligently in pursuing his rights. Pace, 544 U.S. at 419.
Petitioner has not established extraordinary circumstances that would justify the application of equitable tolling in this case. Petitioner asserts that he is not an attorney and is not college-educated. He claims that the "rules for the statute of limitations [are] very confusing" and that he believed he had one year from each state court filing to file a federal petition. (Dkt. 14 at 2.) Petitioner may be correct that AEDPA's statute of limitations is difficult for a layperson to understand. However, Petitioner is not unique in that respect—nearly all pro se prisoners must deal with the same issue. Thus, Petitioner's education level is not an extraordinary circumstance that calls for the application of equitable tolling.
Petitioner also asserts he has a traumatic brain injury that affects his organizational skills and "his ability to keep proper track of time." (Id. at 5.) However, Petitioner's filings in this case have been clear and understandable and he has been able to protect his interests in this litigation. In addition, Petitioner's argument that he believed he had one year after each state post-conviction action in which to file his federal petition shows not that his organizational skills caused his late filing, but his misunderstanding of the law.
Further, the Court cannot conclude that any of the circumstances of which Petitioner complains "made it impossible to file a petition on time." Ramirez, 571 F.3d at 997 (emphasis added) (internal quotation marks and alteration omitted). The Petition was not simply late—it was two and one-half years too late. Petitioner has not met his burden of establishing that extraordinary circumstances beyond his control prevented him from filing a timely habeas petition at some point during that extremely long period of time.
To take advantage of the actual innocence gateway exception to the statute of limitations, a petitioner must demonstrate "that it is more likely than not that no reasonable juror would have found [the] petitioner guilty beyond a reasonable doubt." Schlup, 513 U.S. at 327. Stated another way, a petitioner must show that every reasonable juror would vote to acquit.
This is an extremely stringent standard that "permits review only in the `extraordinary' case." House v. Bell, 547 U.S. 518, 538 (2006). A court considering whether a petitioner has established actual innocence must consider "all the evidence, old and new, incriminating and exculpatory, admissible at trial or not." Lee v. Lampert, 653 F.3d 929, 938 (9th Cir. 2011) (en banc) (internal quotation marks omitted). The actual innocence analysis "does not turn on discrete findings regarding disputed points of fact, and `[i]t is not the district court's independent judgment as to whether reasonable doubt exists that the standard addresses.'" House v. Bell, 547 U.S. 518, 539-40 (2006) (quoting Schlup, 513 U.S. at 329 (alteration in original)). Rather, the court must "make a probabilistic determination about what reasonable, properly instructed jurors would do." Schlup, 513 U.S. at 329.
Petitioner has not met this exceptionally strict standard. Indeed, he has not submitted any convincing evidence of innocence at all. Contrary to Plaintiff's contention, the lack of Petitioner's fingerprints or DNA at the crime scene does not establish that he was not there—the absence of evidence is not the presence of proof. The Schlup actual-innocence exception does not apply to excuse Petitioner's failure to file his Petition on time.
For the foregoing reasons, the Court concludes that the Petition is untimely. Therefore, the Court will dismiss this case with prejudice.
In Petitioner's case, there was a substantial delay between March 24, 2010, the date that Petitioner stated he mailed the postconviction petition, and May 5, 2010, the date that the Ada County Court received the petition. (State's Lodging C-1 at 4, 9.) However, for purposes of this decision the Court will use the earliest possible date—March 24, 2010.
28 U.S.C. § 2244(d)(1).
