Douglas Melvin Lehto v. Connie Gipson
Filing
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MEMORANDUM OPINION AND ORDER by Judge Valerie Baker Fairbank: (See document for details.) IT THEREFORE IS ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice. (rla)
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I HEREBVCERTIFYTHATTHIS DOCUMENT WAS SERVED B,'L. - 1
FIRST CLASS MAIL POSTAGE PREPAID, TO-AU B8t1Nm "\'<...-\- •.,~
~R PfiiHIESl AT THEIR RESPECTIVE MOST RECENT ADDRESS OF
RECORD IN THIS ACTION ON THIS DATE.
DATED:
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FILED • SOUTHERN DIVISION
CLERK, U.S DISTRICT COURl
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DEPUTY CLERK
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27 2013
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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DOUGLAS MELVIN LEHTO,
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Case No. CV 13-1654-VBF (JPR)
Petitioner,
MEMORANDUM OPINION AND ORDER
DENYING PETITION AND DISMISSING
ACTION WITH PREJUDICE
vs.
CONNIE GIPSON, Warden,
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Respondent.
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BACKGROUND
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On February 28, 2013, Petitioner constructively filed a
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Petition for Writ of Habeas Corpus by a Person in State Custody.
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At the same time, he submitted an "Election Regarding Consent to
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Proceed Before a United States Magistrate Judge" form, indicating
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that he voluntarily consented to "have a United States Magistrate
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Judge conduct all further proceedings in this case, decide all
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dispositive and non-dispositive matters, and order the entry of
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final judgment."
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February 2010 conviction in Los Angeles County Superior Court for
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elder abuse and a related charge.
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raises an ineffective-assistance-of-counsel claim based on his
The Petition purports to challenge Petitioner's
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(Pet. at 2.)
Petitioner
1 trial lawyer's alleged bad advice to him concerning a plea offer.
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(See generally Pet. Attach.)
Petitioner states that he did not appeal his conviction.
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(Pet. at 2, 3.)
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Courts' Case Information website, however, reveals that
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Petitioner actually voluntarily dismissed his appeal after it had
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been filed.
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California Supreme Court habeas petition (see Pet. at 3), he
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attached to the Petition a minute order from the Los Angeles
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The Court's review of the California Appellate
Although Petitioner acknowledges filing only a
County Superior Court denying his claim on habeas review because
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[t] he facts presented do not justify the Court's granting
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the
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attorney he was innocent.
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trial
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counsel.
Defendant's
does
not
petition.
amount
The
Defendant
told
his
The attorney's advice to go to
to
ineffective
assistance
of
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The minute order states that Petitioner filed his state habeas
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petition on September 14, 2012.
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According to Petitioner, he was convicted and sentenced on
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February 19, 2010.
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appeal on October 5, 2010, according to the California Appellate
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Courts' Case Information website.
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became final 10 days later, on October 15, 2010.
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Unknown, No. CV 11-7511-PA (PJW), 2012 WL 1616426, at *2 (C.D.
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Cal. Apr. 4, 2012)
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conviction becomes final at latest 10 days later, when time for
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filing petition for review in California Supreme Court expires) ,
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accepted by 2012 WL 1615232 (C.D. Cal. May 9, 2012).
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(Pet. at 2.)
He voluntarily dismissed his
His conviction therefore
See Harris v.
(when defendant voluntarily dismisses appeal,
On March 21, 2013, because the Petition on its face appeared
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1 to be untimely, the Court ordered Petitioner to show cause why it
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should not be dismissed with prejudice because he had failed to
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comply with the one-year statute of limitations under 28 U.S.C.
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§
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Petitioner filed a response.
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his claim that his trial lawyer gave him bad advice concerning a
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plea offer and adds that she performed deficiently at trial by
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not calling any witnesses or challenging the state's evidence.
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(Resp. at 1-2.)
2244(d).
On June 19, 2013, after an extension of time,
He generally argues the merits of
He also asserts that his appellate counsel
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erroneously convinced him "that I had no grounds to appeal,"
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including on ineffective assistance of trial counsel, and that if
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he did appeal he ran the risk of getting a longer sentence
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because he had mistakenly been sentenced to a lighter term than
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required.
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explanation, that "she did not express the collateral damage I
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would face upon signing the appeal waiver."
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seems to argue that the alleged ineffectiveness of his two
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counsel entitle him to both equitable tolling (id. at 5) and a
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later trigger date under 28 U.S.C.
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counsel were provided by the state and therefore constitute a
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"state-created impediment" to the timely filing of his Petition
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(id. at 4}.
(Id. at 2-3.)
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He further asserts, without any
§
(Id. at 3.)
He
2244(d) (1} (B), because
DISCUSSION
I.
The Court's Jurisdiction
As an initial matter, the undersigned Magistrate Judge has
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jurisdiction to deny Petitioner's Petition and dismiss this
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action with prejudice.
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magistrate judge "may conduct any or all proceedings in a jury or
"Upon the consent of the parties," a
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1 nonjury civil matter and order the entry of judgment in the
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case."
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"party" to the proceeding and has consented to the jurisdiction
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of the undersigned U.S. Magistrate Judge; Respondent has not yet
been served with the Petition and therefore is not yet a party to
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Brenneke, 551 F.3d 1132, 1135 (9th Cir. 2009)
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is without personal jurisdiction over a defendant unless the
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defendant has been served in accordance with Fed. R. Civ. P. 4."
28 U.S.C. § 636(c) (1).
this action.
Here, Petitioner is the only
See, e.g., Travelers Cas. & Sur. Co. of Am. v.
("A federal court
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(internal quotation marks omitted)).
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consented pursuant to§ 636(c) (1).
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F.3d 1113, 1119-21 (9th Cir. 2012)
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had jurisdiction to sua sponte dismiss prisoner's lawsuit under
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42 U.S.C. § 1983 for failure to state claim because prisoner
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consented and was only party to action); United States v. Real
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Prop., 135 F.3d 1312, 1317 (9th Cir. 1998)
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magistrate judge had jurisdiction to enter default judgment in in
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rem forfeiture action even though property owner had not
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consented because § 636(c) (1) requires consent only of "parties"
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and property owner, having failed to comply with applicable
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filing requirements, was not "party"); Carter v. Valenzuela, No.
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CV 12-05184 SS, 2012 WL 2710876, at *1 n.3 (C.D. Cal. July 9,
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2012)
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to deny successive habeas petition when petitioner had consented
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and respondent had not yet been served with petition) .
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Thus, all parties have
See Wilhelm v. Rotman, 680
(holding that magistrate judge
(holding that
(after Wilhelm, finding that magistrate judge had authority
Moreover, a district court has the authority to raise the
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statute-of-limitations issue sua sponte when untimeliness is
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obvious on the face of a petition; it may summarily dismiss the
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1 petition on that ground pursuant to Rule 4 of the Rules Governing
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§
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gives the petitioner adequate notice and an opportunity to
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respond.
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Here, the Court gave Petitioner notice that his Petition appeared
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to be untimely and an opportunity to respond, which he has done.
2254 Cases in the U.S. District Courts, as long as the court
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Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).
Accordingly, this Court has the authority to deny
8 Petitioner's Petition and dismiss this action with prejudice.
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II.
The Petition Is Not Timely
Under the Antiterrorism and Effective Death Penalty Act of
1996 ( "AEDPA") , see 28 U.S. C.
(1)
§
2244 (d) :
A 1-year period of limitation shall apply to an
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application for a writ of habeas corpus by a person in
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custody pursuant to the judgment of a State court.
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limitation period shall run from the latest of--
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(A)
The
the date on which the judgment became
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final by the conclusion of direct review or the
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expiration of the time for seeking such review;
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(B)
the
date
on
which
the
impediment
to
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filing an application created by State action in
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violation of the Constitution or laws of the United
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States is removed,
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from filing by such State action;
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(C)
the
if the applicant was prevented
date
on
which
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right
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Supreme
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recognized
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retroactively applicable
asserted
Court,
by
was
if
the
initially
the
the
right
Supreme
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to
constitutional
recognized
has
Court
cases
on
by
the
been
newly
and
made
collateral
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review; or
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(D)
the date on which the factual predicate
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of the claim or claims presented could have been
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discovered through the exercise of due diligence.
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(2)
The
time
during
which
a
properly
filed
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application for State post-conviction or other collateral
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review with respect to the pertinent judgment or claim is
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pending
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limitation under this subsection.
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shall
not
be
counted
toward
any
period
of
Under certain circumstances, a habeas petitioner may be
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entitled to equitable tolling of the limitation period, see
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Holland v. Florida, 560 U.S.
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Ed. 2d 130 (2010), but only if he shows that (1) he has been
130 S. Ct. 2549, 2560, 177 L.
14 pursuing his rights diligently and (2) "some extraordinary
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circumstance stood in his way," Pace v. DiGuglielmo, 544 U.S.
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408, 418, 125 S. Ct. 1807, 1814, 161 L. Ed. 2d 669 (2005).
F.
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,,,
,., .
"
Petitioner does not dispute that his conviction became final
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on October 15, 2010.
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recitation of the law in the OSC.
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filed his federal Petition on February 28, 2013, nearly a year
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and a half after the presumptive expiration of the limitation
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period under§ 2244(d) (1) (A), on October 15, 2011.
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v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001)
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tolling period begins day after triggering event) .
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Nor does he argue with the Court's
Petitioner constructively
See Patterson
(holding that
Thus, the Petition is time barred unless Petitioner can show
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entitlement to statutory or equitable tolling or a later trigger
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date.
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He has failed to do so.
In the Petition, Petitioner seemed to contend that he was
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entitled to a later trigger date or equitable tolling because he
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could not have known of his claim until the U.S. Supreme Court's
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1376, 182 L. Ed. 2d 398 (2012).
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Circuit has already held that Lafler did not announce a new rule.
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See Buenrostro v. United States, 697 F.3d 1137, 1140 (9th Cir.
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2012); Baker v. Ryan, 497 F. App'x 771, 773 (9th Cir. 2012),
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cert. denied, 2013 WL 2111058 (U.S. June 24, 2013); Hunt v.
"watershed" ruling in Lafler v. Cooper, 566 U.S.
(Pet. Attach.)
, 132 S. Ct.
But the Ninth
Gibson, No. SA CV 12-1859-RGK (VBK), 2013 WL 990761, at *3 (C.D.
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Cal. Feb. 5, 2013)
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finding petition untimely), accepted by 2013 WL 990733 (C.D. Cal.
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Mar. 12, 2013).
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established," the Supreme Court could not have granted relief in
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Lafler.
(applying Buenrostro in§ 2244(d) context and
Indeed, had the law not already been "clearly
See 28 U.S.C.
§
2254(d) (1).
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In his response to the OSC, he has modified his argument
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somewhat, claiming that he is entitled to a later trigger date or
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equitable tolling because his court-appointed counsel gave him
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bad advice and performed deficiently, citing Martinez v. Ryan,
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566 U.S.
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that when state bars raising claim of ineffective assistance of
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counsel on direct appeal, petitioner's procedural default may be
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excused if he had no counsel during collateral proceedings or
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counsel was ineffective) .
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in the Petition relates to ineffective assistance of counsel at
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trial, concerning actions (or inactions) of which he was
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necessarily aware at the time.
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"collateral damage" and certain "consequences" of dropping his
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appeal of which he was unaware at the time, he never explains
, 132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012)
(holding
But the only claim Petitioner raises
Although he alludes to
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1 what those were or how they rendered him unable to earlier file
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nothing to say on whether the Petition was timely filed.
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Ferguson v. Bacca, No. 3:12-cv-00619-HDM-WGC, 2013 WL 2285080, at
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*1 (D. Nev. May 22, 2013)
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Martinez because it is "inapposite" to question of timeliness,
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"as petitioner's claims are not defaulted in the classic sense").
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And Petitioner's similar claim that appellate counsel's
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his Petition.
Martinez is thus inapplicable here, because it has
See
(rejecting petitioner's reliance on
allegedly deficient advice constituted a State-created
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"impediment" under § 2244 (d) (1) (B), thereby justifying a later
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trigger date (or equitable tolling), is contrary to law and
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reason.
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higher bar than that for equitable tolling."
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571 F.3d 993, 1000 (9th Cir. 2009).
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equitable tolling, the Supreme Court has rejected the notion that
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an appointed counsel's actions are somehow attributable to the
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State simply because the State has undertaken to provide counsel.
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See Lawrence v. Florida, 549 U.S. 327, 337, 127 S. Ct. 1079,
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1086, 166 L. Ed. 2d 924 (2007)
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postconviction counsel that "a State's effort to assist prisoners
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does not make the State accountable for [Petitioner's]
A claim under subsection (d) (1) (B) "must satisfy a far
Ramirez v. Yates,
And yet in the context of
(holding as to appointed
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delay . .
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with .
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statute of limitations"); see also Leyva v. Yates, CV 07-8116-PA
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(JEM), 2010 WL 2384933, at *2 n.2 (C.D. Cal. May 7, 2010),
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accepted by 2010 WL 2522705 (C.D. Cal. June 9, 2010)
meritless petitioner's contention that appellate counsel's
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decisions constituted "state action" triggering§ 2244(d) (1) (B)
.
.
. It would be perverse indeed if providing prisoners
. counsel deprived States of the benefit of the AEDPA
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(finding
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and citing cases in agreement).
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to a later trigger date or equitable tolling.
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Thus, Petitioner is not entitled
Finally, no basis for statutory tolling under§ 2244(d} (2)
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petition until September 14, 2012, after the AEDPA limitation
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820, 823 (9th Cir. 2003)
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cannot be "reinitiated" if it ended before state habeas petition
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filed) .
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exists here, because Petitioner did not file his first habeas
period had already expired.
See Ferguson v. Palmateer, 321 F.3d
(holding that AEDPA limitation period
Because Petitioner has offered no valid justification for
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the delay in filing his federal Petition, he is not entitled to
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any tolling or later trigger date sufficient to render the
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Petition timely.
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ORDER
IT THEREFORE IS ORDERED that Judgment be entered denying the
Petition and dismissing this action with prejudice.
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DATED: June 27, 2013
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JUDGE
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