UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
BERTIE MATTINAS, Case No. 1:23-cv-00320-DKG Petitioner, INITIAL REVIEW ORDER v.
TYRELL DAVIS, Warden, Idaho State Correctional Institution,
Respondent.
Petitioner Bertie Mattinas has filed an Amended Petition for Writ of Habeas Corpus challenging Petitioner’s state court conviction. See Dkt. 15. The Court now reviews 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”). 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. 2. Discussion
In the First Judicial District Court in Kootenai County, Idaho, Petitioner pleaded guilty to criminal possession of a financial transaction card. The judgment of conviction was entered on April 6, 2022. Petitioner was sentenced to a unified term of five years in prison with three years fixed. Petitioner did not file a direct appeal but did pursue state post-conviction relief. Am. Pet., Dkt. 15.
It does not plainly appear from the face of the Amended Petition that Petitioner is not entitled to relief. Therefore, Petitioner may proceed on the Petition to the extent that the claims (1) are cognizable—meaning they actually can be heard—in a federal habeas corpus action, (2) were timely filed in this Court, and (3) were either properly exhausted in state court or are subject to a legal excuse for any failure to exhaust in a proper
manner. At this time, the Court expresses no opinion as to whether any of these issues applies to any of Petitioner’s claims. It is necessary for the Court to review portions of the state court record to resolve preliminary procedural issues, and it would also be helpful to receive briefing from Respondent. Therefore, the Court will order the Clerk to serve a copy of the Petition on
counsel for Respondent, who may respond either by answer or pre-answer motion and who will provide relevant portions of the state court record to this Court. 3. Potentially Applicable Standards of Law Because Petitioner does not have a lawyer and because the Court finds that focused briefing from the parties would be beneficial in this case, the Court provides the
following standards of law that might, or might not, be applicable to Petitioner’s case. A. Potentially Non-Cognizable Claims The Court will not dismiss any claims at this early stage of the proceedings, but it notes that some of Petitioner’s claims may later be subject to dismissal as non-cognizable in this habeas corpus case. Some of Petitioner’s claims appear to be civil rights claims, which generally are
not cognizable in federal habeas proceedings. “[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody,” and “the traditional function of the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973); see also Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (“Habeas corpus proceedings are the proper mechanism for a prisoner to challenge the ‘legality or
duration’ of confinement.”) (quoting Preiser, 411 U.S. at 498–99). Any of Petitioner’s claims that do not challenge the validity of Petitioner’s criminal conviction or sentence “must be brought, if at all,” in a civil rights action under 42 U.S.C. § 1983. Nettles v. Grounds, 830 F.3d 922, 931 (9th Cir. 2016) (en banc). Additionally, Petitioner appears to assert a freestanding claim of actual innocence.
See Am. Pet. at 35 “(I did not grand theft [sic] [the financial transaction card] nor criminal possession [sic] it either.”). Such claims are not cognizable on federal habeas review, at least in non-capital cases like this one. Herrera v. Collins, 506 U.S. 390, 400 (1993) (“Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.... This rule is grounded in the
principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution—not to correct errors of fact.”). However, as explained below, an assertion of actual innocence can serve as “a gateway through which a habeas petitioner [may] pass to have his otherwise barred constitutional claim considered on the merits.” Herrera, 506 U.S. at 404.
B. Exhaustion and Procedural Default A habeas petitioner must exhaust 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 consider the merits of the claim only if the petitioner meets one of two exceptions. A petitioner asserting a procedurally defaulted claim must make either (1) a showing of adequate legal cause for
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
BERTIE MATTINAS, Case No. 1:23-cv-00320-DKG Petitioner, INITIAL REVIEW ORDER v.
TYRELL DAVIS, Warden, Idaho State Correctional Institution,
Respondent.
Petitioner Bertie Mattinas has filed an Amended Petition for Writ of Habeas Corpus challenging Petitioner’s state court conviction. See Dkt. 15. The Court now reviews 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”). 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. 2. Discussion
In the First Judicial District Court in Kootenai County, Idaho, Petitioner pleaded guilty to criminal possession of a financial transaction card. The judgment of conviction was entered on April 6, 2022. Petitioner was sentenced to a unified term of five years in prison with three years fixed. Petitioner did not file a direct appeal but did pursue state post-conviction relief. Am. Pet., Dkt. 15.
It does not plainly appear from the face of the Amended Petition that Petitioner is not entitled to relief. Therefore, Petitioner may proceed on the Petition to the extent that the claims (1) are cognizable—meaning they actually can be heard—in a federal habeas corpus action, (2) were timely filed in this Court, and (3) were either properly exhausted in state court or are subject to a legal excuse for any failure to exhaust in a proper
manner. At this time, the Court expresses no opinion as to whether any of these issues applies to any of Petitioner’s claims. It is necessary for the Court to review portions of the state court record to resolve preliminary procedural issues, and it would also be helpful to receive briefing from Respondent. Therefore, the Court will order the Clerk to serve a copy of the Petition on
counsel for Respondent, who may respond either by answer or pre-answer motion and who will provide relevant portions of the state court record to this Court. 3. Potentially Applicable Standards of Law Because Petitioner does not have a lawyer and because the Court finds that focused briefing from the parties would be beneficial in this case, the Court provides the
following standards of law that might, or might not, be applicable to Petitioner’s case. A. Potentially Non-Cognizable Claims The Court will not dismiss any claims at this early stage of the proceedings, but it notes that some of Petitioner’s claims may later be subject to dismissal as non-cognizable in this habeas corpus case. Some of Petitioner’s claims appear to be civil rights claims, which generally are
not cognizable in federal habeas proceedings. “[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody,” and “the traditional function of the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973); see also Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (“Habeas corpus proceedings are the proper mechanism for a prisoner to challenge the ‘legality or
duration’ of confinement.”) (quoting Preiser, 411 U.S. at 498–99). Any of Petitioner’s claims that do not challenge the validity of Petitioner’s criminal conviction or sentence “must be brought, if at all,” in a civil rights action under 42 U.S.C. § 1983. Nettles v. Grounds, 830 F.3d 922, 931 (9th Cir. 2016) (en banc). Additionally, Petitioner appears to assert a freestanding claim of actual innocence.
See Am. Pet. at 35 “(I did not grand theft [sic] [the financial transaction card] nor criminal possession [sic] it either.”). Such claims are not cognizable on federal habeas review, at least in non-capital cases like this one. Herrera v. Collins, 506 U.S. 390, 400 (1993) (“Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.... This rule is grounded in the
principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution—not to correct errors of fact.”). However, as explained below, an assertion of actual innocence can serve as “a gateway through which a habeas petitioner [may] pass to have his otherwise barred constitutional claim considered on the merits.” Herrera, 506 U.S. at 404.
B. Exhaustion and Procedural Default A habeas petitioner must exhaust 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 consider the merits of the claim only if the petitioner meets one of two exceptions. A petitioner asserting a procedurally defaulted claim must make either (1) a showing of adequate legal cause for
the default and prejudice arising from the default, or (2) a showing that a miscarriage of justice will occur if the claim is not heard in federal court. 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).
If a petitioner cannot show cause and prejudice for his procedural default, he still can 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.” Carrier, 477 U.S. at 496. This standard requires proof that a constitutional violation has probably resulted in the conviction of someone who is actually innocent. Id. Actual innocence in this context “means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998).
C. Statute of Limitations 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. 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).
REQUEST FOR APPOINTMENT OF COUNSEL Petitioner has requested appointment of counsel. See Am. Pet. at 37. There is no constitutional right to counsel in a habeas corpus action. Coleman, 501 U.S. at 755. A habeas petitioner has a right to counsel, as provided by rule, if an evidentiary hearing is required in the case. See Habeas Rule 8(c). 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 the petitioner’s ability to articulate the claims in light of the complexity of the legal issues and the petitioner’s likelihood of success on the merits. See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (per curiam).
At this point, the Court concludes that, based on the evidence currently in the record (Dkt. 15), it is unlikely that Petitioner will be able to meet the strict standards of 28 U.S.C. § 2254(d) for issuance of a writ of habeas corpus. Therefore, at this time the Court will deny the request for appointment of counsel. The Court will notify the parties if it determines, at a later date, that appointment of counsel may be appropriate. ORDER IT IS ORDERED: 1. Because Petitioner has already been granted leave to proceed without
prepayment of the filing fee, his Amended Application to Proceed in Forma Pauperis (Dkt. 13) is MOOT. 2. Petitioner’s request for appointment of counsel (contained in the Petition) is DENIED without prejudice. 3. The Clerk of Court will serve (via ECF) a copy of the Amended Petition
(Dkt. 15), along with any attachments, together with a copy of this Order, on L. LaMont Anderson, on behalf of Respondent, at Mr. Anderson’s registered ECF address. 4. Within 120 days after service of the Petition, Respondent may file either of the following: (1) a motion for summary dismissal or partial summary
dismissal on procedural grounds (which may be followed by an answer on the merits if the motion is unsuccessful); or (2) an answer on the merits that also includes a brief summary (between one paragraph and several pages) of any procedural defenses for any claims (which may be argued in the alternative). The Court may consider the merits of claims that may be
subject to a procedural bar if the merits analysis is more straightforward than a complicated procedural analysis. 5. Respondent must file with the responsive pleading or motion, or within a reasonable time thereafter, a copy of all portions of the state court record previously transcribed that are relevant to a determination of the issues presented. Any presentence investigation reports or evaluations—which must be provided to the Court if the petition contains any sentencing
claims—must be filed under seal. The lodging of the remainder of the state court record, to the extent that it is lodged in paper format, is exempt from the redaction requirements, as provided in D. Idaho Loc. Civ. Rule 5.5(c). 6. If the response to the habeas petition is an answer, Petitioner must file a reply (formerly called a traverse), containing a brief rebutting Respondent’s
answer and brief, which must be filed and served within 28 days after service of the answer and brief. Respondent has the option of filing a sur- reply within 14 days after service of the reply. At that point, the case will be deemed ready for a final decision. 7. If the response to the habeas petition is a motion, Petitioner’s response must
be filed and served within 28 days after service of the motion, and Respondent’s reply, if any, must be filed and served within 14 days thereafter. 8. In the response to the habeas petition, whether a pre-answer motion or an answer and brief, Respondent must include citations to all portions of the
state court record that support Respondent’s assertions. Although Respondent may include citations to a state appellate court decision that describes events that took place in a lower court, Respondent must also include citations to the underlying lower court record. 9. If any of Petitioner’s claims is currently under consideration in state court proceedings, any party may file a motion to stay this case pending the outcome of those proceedings. See Rhines v. Weber, 544 U.S. 269, 277–78
(2005); Mena v. Long, 813 F.3d 907, 908 (9th Cir. 2016). 10. No party may file supplemental responses, replies, affidavits, or other documents not expressly authorized by the Local Rules or by this Order without first obtaining leave of Court. 11. No discovery may be undertaken in this matter unless a party obtains prior
leave of Court, pursuant to Rule 6 of the Habeas Rules. 12. The parties may, but 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 for appointment of counsel; (3) responses to motions that are meritless, frivolous, or filed in contravention of this Order; or (4) notices of
intent not to file a reply. The Court will notify the parties if additional briefing is required on any issue. 13. Each party must ensure that all documents filed with the Court are simultaneously served via the ECF system or 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 must 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, or as specified by the applicable ECF rules. 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.) 14. —_ 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 5.2 and 7.1. The Court will not consider requests made in the form of letters. 15. Petitioner must at all times keep the Court and Respondent advised of any change in address. 16. If Petitioner’s custodian changes at any point during this litigation, Petitioner must file a Notice of Substitution of Respondent, within 28 days of such change, identifying the person who is substituted as Respondent. See Fed. R. Civ. P. 25(d); Habeas Rule 2(a).
a DATED: January 5, 2024 an “#/S/ Honorable Debora K. Grasham “RicT ok United States Magistrate Judge
INITIAL REVIEW ORDER - 11