Freegard v. State of Idaho

• Court: District Court, D. Idaho
• Decided: September 13, 2021
• Docket: 1:21-cv-00323
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

TIMOTHY B. FREEGARD, Case No. 1:21-cv-00323-DCN Petitioner, INITIAL REVIEW ORDER and v. ORDER REQUIRING AMENDMENT

WARDEN RAMIREZ,

Respondent.

Petitioner Timothy B. Freegard has filed a Petition for Writ of Habeas Corpus challenging his state court conviction. See Pet., Dkt. 4, at 1–13. The Court must review the Petition to determine whether it is subject to summary dismissal pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases (“Habeas Rules”). However, the Petition does not comply with Habeas Rule 2(d), which requires any habeas petition brought pursuant to 28 U.S.C. § 2254 to “substantially follow either the form appended to these rules or a form prescribed by a local district-court rule.” Therefore, Petitioner must file an amended petition that complies with Rule 2(d) within 60 days after entry of this Order. As explained more fully below, any amended petition must include all of Petitioner’s habeas claims in the petition itself and may not rely upon or incorporate other pleadings or documents. REVIEW OF PETITION 1. Standard of Law for Review of Petition 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. 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. However, a district court undertaking a Rule 4 review is not required to comb through a Petitioner’s exhibits or other documents—such as memoranda, affidavits, or the

petitioner’s state court briefing—to determine whether a petitioner may proceed beyond initial screening. Nor is a respondent required to consider or address such documents when responding to the petition. This is because, under Habeas Rule 2(c)(1), the petition must “specify all the grounds for relief available to petitioner.” That is, a habeas petitioner must include—in the petition itself—“all of the information necessary to adjudicate that

Petition.” Sivak v. Christensen, No. 1:16-CV-00189-BLW, 2018 WL 4643043, at *2 n.3 (D. Idaho Sept. 27, 2018) (unpublished). Therefore, the Court has considered only the first thirteen pages of the Petition in its initial review in this case. The remaining pages appear to be copies of Petitioner’s post- conviction petition, which he is currently pursuing in state court. See Pet. at 14–26; id. at

8 (“[T]he Petitioner has submitted herein … a verbatim photocopy of his State post- conviction petition claims, grounds, and constitutional violations.”). Nor will the Court consider the other exhibits and documents that Petitioner and his representative have submitted (such as the exhibits at Docket No. 1, the “Claims and Grounds” document and affidavit beginning at Docket No. 4-1, or the Addendum at Docket No. 12). 2. Discussion In the Fourth Judicial District Court in Ada County, Idaho, Petitioner pleaded guilty

to armed bank robbery. Pet. at 3. Petitioner was sentenced to a unified term of life in prison with ten years fixed. Id. at 2. The Idaho appellate court affirmed. Petitioner states he is currently litigating a post-conviction action in state court. Id. at 8. Along with the Petition, Petitioner has filed a Motion to Hold Petition in Stay and Abeyance. See Dkt. 5. Although Petitioner seeks a stay so that he can litigate his post-

conviction claims in state court, the Court notifies Petitioner that failing to include all of his potential claims now, in this case, may jeopardize his federal statute of limitations filing date as to claims that are not raised in the current petition, but that may be raised in an amended petition after Petitioner’s state court proceedings are completed. Therefore, because Petitioner may want to preserve the filing date of his original Petition for current

claims—and preserve an early filing date for any amended claims—he will have an opportunity to file an amended petition before the Court rules on his motion to stay. Finally, it appears that Petitioner intends to assert claims in addition to those included in the Petition. See Dkt. 4 at 14 (attaching a copy of state post-conviction petition). The Court reiterates that only claims clearly asserted in the Petition itself will be considered

in these federal habeas proceedings. The Court does not deem the Petition to include any claims that are included in other documents, such as exhibits or attachments to the Petition. 3. Potentially Applicable Standards of Law Because Petitioner is pro se, the Court provides the following standards of law that might, or might not, be applicable to Petitioner’s claims. Petitioner may wish to consider these standards when drafting an amended petition. A. Only Federal Claims Are Cognizable in this Action

As stated earlier, federal habeas corpus relief is available if the petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a) (emphasis added). That is, only federal claims—not claimed violations of state law—may be raised in habeas corpus. Lewis v. Jeffers, 497 U.S. 764, 780 (1990). B. Exhaustion and Procedural Default A habeas petitioner must exhaust his remedies in the state courts before a federal

court can grant relief on constitutional claims. O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To do so, the petitioner must invoke one complete round of the state’s established appellate review process, fairly presenting all constitutional claims to the state courts so that they have a full and fair opportunity to correct alleged constitutional errors at each level of appellate review. Id. at 845. In a state that has the possibility of discretionary

review in the highest appellate court, like Idaho, the petitioner must have presented all of his federal claims at least in a petition seeking review before that court. Id. at 847. When a habeas petitioner has not fairly presented a constitutional claim to the highest state court, and it is clear that the state court would now refuse to consider it because of the state’s procedural rules, the claim is said to be procedurally defaulted. Gray v.

Netherland, 518 U.S. 152, 161–62 (1996). Procedurally defaulted claims include those within the following circumstances: (1) when a petitioner has completely failed to raise a claim before the Idaho courts; (2) when a petitioner has raised a claim, but has failed to fully and fairly present it as a federal claim to the Idaho courts; and (3) when the Idaho courts have rejected a claim on an adequate and independent state procedural ground. Id.; Baldwin v. Reese, 541 U.S. 27, 32 (2004); Coleman v. Thompson, 501 U.S. 722, 750

(1991). If a claim is procedurally defaulted, a federal court can only consider the merits of the claim if the petitioner meets one of two exceptions. The petitioner asserting a procedurally defaulted claim must make either (1) a showing that a miscarriage of justice will occur if the claim is not heard in federal court, meaning that a constitutional violation

has probably resulted in the conviction of someone who is actually innocent, or (2) a showing of adequate legal cause for the default and prejudice arising from the default. See Coleman, 501 U.S. at 731; Schlup v. Delo, 513 U.S. 298, 329 (1995); Murray v. Carrier, 477 U.S. 478, 488 (1986). 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. Carrier, 477 U.S. at 488. To show “prejudice,” a petitioner generally 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). Cause for the default may exist as a result of ineffective assistance of counsel (“IAC”). For example, the failure on appeal to raise a meritorious claim of trial error may render that claim procedurally defaulted. See Edwards v. Carpenter, 529 U.S. 446, 452 (2000). However, for ineffective assistance of trial or direct appeal counsel to serve as cause to excuse the default of a claim, that ineffective assistance claim must itself have been separately presented to the state appellate courts. Id. at 451. If the ineffective

assistance asserted as cause was not fairly presented to the state courts, a petitioner must show that an excuse for that separate default exists, as well. A petitioner does not have a federal constitutional right to the effective assistance of counsel during state post-conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551, 554 (1987); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993). As a result, the general

rule is that any errors of counsel during a post-conviction action cannot serve as a basis for cause to excuse a procedural default. Coleman, 501 U.S. at 752. However, the Supreme Court established an exception to that general rule in Martinez v. Ryan, 566 U.S. 1 (2012). Martinez held that, in limited circumstances, “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish

cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” Id. at 9. The Supreme Court has described and clarified the Martinez cause and prejudice test as consisting of four necessary prongs: (1) the underlying IAC claim must be a “substantial” claim; (2) the “cause” for the procedural default consists of there being “no counsel” or only “ineffective” counsel during the state collateral review proceeding; (3) the state

collateral review proceeding was the “initial” collateral review proceeding where the IAC claim could have been brought; and (4) state law requires that an IAC claim be raised in an initial-review collateral proceeding, or by “design and operation” such claims must be raised that way, rather than on direct appeal. Trevino v. Thaler, 569 U.S. 413, 423, 429 (2013). C. Timeliness Issues i. One-Year Limitations Period

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.” 28 U.S.C. § 2244(d)(1)(A). Timeliness is determined on a claim-by- claim basis, rather than giving the petition as a whole a single limitations period. Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012) (“Therefore, we hold that AEDPA’s one-year

statute of limitations in § 2244(d)(1) applies to each claim in a habeas application on an individual basis.”). The one-year statute of limitations can be tolled (or paused) under certain circumstances. 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). The statute of limitations can also 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). In addition, like procedural default, AEDPA’s statute of limitations is subject to an actual innocence exception, and a petitioner who satisfies the actual innocence gateway standard may have otherwise time-barred claims heard on the merits. McQuiggin v. Perkins, 569 U.S. 383, 393–94 (2013); Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (en banc). ii. Stay-and-Abey Procedures and Relation-Back of Amendments

Prior to the enactment of AEDPA, the Supreme Court had held that federal courts could adjudicate a habeas petition only if all the claims in that petition were exhausted. See Rose v. Lundy, 455 U.S. 509, 522 (1982). This doctrine of “total exhaustion” required that a district court dismiss, without prejudice, any habeas petition that included even one unexhausted claim. Id. The appropriate course, if a claim was unexhausted, was to dismiss

the petition without prejudice. Then, once the petitioner had exhausted the unexhausted claims in state court, he could return to federal court and file a new habeas petition. Alternatively, the petitioner could choose to “amend[] or resubmit[] the habeas petition to present only exhausted claims to the district court.” Id. at 510. The total exhaustion requirement became problematic with the passage of AEDPA,

which not only preserved that requirement, but also imposed a one-year statute of limitations for federal habeas petitions. See 28 U.S.C. § 2244(d). As the Supreme Court later observed, As a result of the interplay between AEDPA’s 1-year statute of limitations and Lundy’s dismissal requirement, petitioners who come to federal court with “mixed” petitions run the risk of forever losing their opportunity for any federal review of their unexhausted claims. If a petitioner files a timely but mixed petition in federal district court, and the district court dismisses it under Lundy after the limitations period has expired, this will likely mean the termination of any federal review.

Rhines v. Weber, 544 U.S. 269, 275 (2005). To address this problem, the Supreme Court held in Rhines that a federal district court has the discretion to stay a mixed habeas petition—a petition containing both exhausted and unexhausted claims—to allow the petitioner to present the unexhausted

claims to the state courts and then later return to federal court for review of the perfected petition. Id. at 277. Staying a habeas case preserves the original filing date of the claims asserted in the original petition, for purposes of the one-year federal statute of limitations period. The Ninth Circuit has since extended the holding in Rhines, so that the “stay-and-

abeyance procedure is not limited to mixed petitions, and a district court may stay a petition that raises only unexhausted claims.” Mena v. Long, 813 F.3d 907, 908 (9th Cir. 2016). However, a stay is inappropriate if all the claims in a petition are exhausted. To warrant a stay, at least one of the pending state court claims must be included in the federal petition— that is, the petition must be either mixed or completely unexhausted.

Moreover, an important consideration for federal habeas petitioners is that statutory tolling of the limitations period is not permitted if the state post-conviction action was not “properly filed.” If a petitioner files an untimely state post-conviction action—or one that is procedurally improper for another reason—then that action cannot toll the federal limitations period. See Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005). Unfortunately, a

petitioner usually does not receive a state court order concluding that a post-conviction action is procedurally improper until after the federal statute of limitations has expired, causing loss of the claims the petitioner had hoped to exhaust in the state post-conviction matter. Once the federal statute of limitations has expired, it cannot be reinstated or resurrected by a later-filed state court action. See Ferguson v. Palmateer, 321 F.3d 820, 822 (9th Cir. 2003) (“[S]ection 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed”).

There is a second important statute-of-limitations consideration for federal habeas petitioners: If a petitioner amends a petition after the federal statute of limitations has run, the amendments might not receive the benefit of, or “relate back” to, the original petition’s filing date. Amendments relate back to the original petition only if the original and amended pleadings both arise out of the same “‘conduct, transaction, or occurrence.’”

Mayle v. Felix, 545 U.S. 644, 655 (2005) (alteration omitted) (quoting Fed. R. Civ. P. 15(c)(2), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562– 63 (2007). Because Rule 15 is applied in conjunction with the “more demanding” standard in Habeas Rule 2(c), the words “same ‘conduct, transaction, or occurrence” do not mean simply “the same ‘trial, conviction, or sentence.’” Id. at 655, 664. Rather, relation back is

proper only when “the original and amended petitions state claims that are tied to a common core of operative facts.”1 Id. Courts use a two-step analysis to decide whether, for statute of limitations purposes, a claim in an amended petition relates back to a claim in the original petition. The district

1 The Supreme Court offered the following examples of cases where this standard was satisfied: (1) Mandacina v. United States, 328 F.3d 995, 1000–1001 (8th Cir. 2003), in which the original petition alleged violations of Brady v. Maryland, 373 U.S. 83 (1963), “while the amended petition alleged the Government’s failure to disclose a particular report,” and “[b]oth pleadings related to evidence obtained at the same time by the same police department”; and (2) Woodward v. Williams, 263 F.3d 1135, 1142 (10th Cir. 2001), in which “the original petition challenged the trial court’s admission of recanted statements, while the amended petition challenged the court’s refusal to allow the defendant to show that the statements had been recanted.” Mayle, 545 U.S. at 664 n.7. court first must “determine what claims the amended petition alleges and what core facts underlie those claims.” Ross v. Williams, 950 F.3d 1160, 1167 (9th Cir. 2020). Then, “for each claim in the amended petition,” the court must “look to the body of the original

petition and its exhibits to see whether” (a) “the original petition set out or attempted to set out a corresponding factual episode,” or (b) “whether the claim is instead supported by facts that differ in both time and type from those the original pleading set forth.” Id. (internal quotation marks and alterations omitted). In addition, an amendment invoking a legal theory not suggested in the original

petition relates back to that original petition only if it arises from the same “episode-in- suit.” Mayle, 545 U.S. at 659–60 (citing Tiller v. Atl. Coast Line R. Co., 323 U.S. 574, 580– 81 (1945)). For example, ineffective assistance claims relate back to claims where the underlying substantive error is based on the same set of facts. See Nguyen v. Curry, 736 F.3d 1287, 1296–97 (9th Cir. 2013) (determining that a claim that appellate counsel was

ineffective for failing to raise double jeopardy issue related back to a timely-raised substantive double jeopardy claim), abrogated on other grounds by Davila v. Davis, 137 S. Ct. 2058 (2017); Abdulle v. Uttecht, 2020 WL 2065882 (W.D. Wash. Jan. 6, 2020) (report and recomm’n), relevant portion adopted by, 2020 WL 2063772, at *2 (W.D. Wash. Apr. 29, 2020) (district court order).

ORDER IT IS ORDERED: 1. Petitioner’s Motion to Extend Time for Filing of Opening of Case (Dkt. 6) and Motion to Extend One-Year Filing Deadline (Dkt. 11) are DENIED, because the Court does not have authority to “extend” the statute of limitations. The Court will not dismiss any claim as untimely at this early stage of the proceedings, but it may consider the statute of limitations issue at a later date. 2. Within 60 days after entry of this Order, Petitioner must file an amended petition, which must comply with Habeas Rule 2(d) and must include all of the claims, whether exhausted or not, that Petitioner intends to raise in this action. 3. The Clerk of Court will provide Petitioner with this Court’s form § 2254 petition. Petitioner is encouraged and expected to use that form to draft any amended petition. If Petitioner files an amended petition, the Court will consider Petitioner’s request to stay these proceedings. 4. Failure to comply with this Order may result in dismissal without further notice.

a DATED: September 13, 2021 □ —_—™ . x ( deez ° ™. all — ea Chict US District Court Judge

INITIAL REVIEW ORDER and ORDER REQUIRING AMENDMENT - 12