Rodriguez v. Smalls et al

Filing 22

ORDER: The (Doc. 19 ) Report and Recommendation is adopted in its entirety. The (Doc. 12 ) Motion to Dismiss Petition for Writ of Habeas Corpus is granted. Signed by Judge William Q. Hayes on 3/16/2010. (All non-registered users served via U.S. Mail Service.) (mdc) (av1).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 HAYES, Judge: 17 The matters before the Court are the Motion to Dismiss Petition for Writ of Habeas 18 Corpus (Doc. # 12) filed by Respondent Larry Smalls and the Report and Recommendation 19 (Doc. # 19) filed by Magistrate Judge Louisa S. Porter. 20 21 BACKGROUND On May 7, 2009, Petitioner, a state prisoner proceeding pro se, initiated this action by ADRIAN RODRIGUEZ, vs. LARRY SMALLS, Petitioner, CASE NO. 09cv993 WQH (POR) ORDER

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Respondent.

22 filing the Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254. (Doc. 23 # 1). The Petition challenges Petitioner's September 12, 1997 conviction for first-degree 24 murder and personal use of a firearm. (Lodgement 1 at 1). The Petition alleges that Petitioner 25 received ineffective assistance of trial counsel, that Petitioner received ineffective assistance 26 of appellate counsel, and that the California Supreme Court erred in denying Petitioner's state 27 petition as untimely. Id. Petitioner's ineffective assistance of trial counsel claim stems from 28 the performance of appointed counsel at trial after Petitioner's original retained counsel was
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1 himself incarcerated. Id. Along with the Petition, Petitioner filed a Motion for Leave to 2 Proceed in Forma Pauperis (Doc. # 2) and a Motion to Stay (Doc. # 3). On May 20, 2009, the 3 Court granted Petitioner's application to proceed in forma pauperis, denied Petitioner's Motion 4 for a Stay and Abeyance, and ordered Respondent to file a response to the Petition. (Doc. # 7). 5 On August 4, 2009, Respondent filed the Motion to Dismiss Petition for Writ of Habeas

6 Corpus. (Doc. # 12). Respondent contends that the Petition was untimely because it was filed 7 more than one year after Petitioner's conviction became final. Id. at 7. Respondent contends 8 that Petitioner's conviction became final on October 12, 1999. Id. at 10. Respondent contends 9 that Petitioner is not entitled to equitable tolling because he has failed to establish that evidence 10 he asserts was newly discovered could not have been discovered earlier through due diligence. 11 Id. Respondent contends Petitioner has conceded he was aware of "the potential for 12 presenting a defense at trial based on imperfect self-defense" before his trial took place. Id. 13 at 12. Respondent contends equitable tolling in habeas cases "does not extend to what are, at 14 best, `garden variety' contentions of excusable neglect." Id. at 14. 15 On August 27, 2009, Petitioner filed a Response in Opposition to the Motion to

16 Dismiss. (Doc. # 16). Petitioner contends that he did file within the statute of limitations and 17 that he is entitled to equitable tolling. Id. at 2, 10, 12. Petitioner contends that he is entitled 18 to equitable tolling because he lacks legal sophistication and because he had no contact with 19 his appellate counsel. Id. at 7. Petitioner contends that the statute of limitations did not start 20 running until he learned of the ineffective assistance of trial counsel. Id. at 10. Petitioner 21 concedes he was aware of the imperfect self-defense evidence before trial, but was unable to 22 convince his trial attorney to present the defense at trial. Id. at 9. Petitioner contends that "the 23 clock should be restarted to June 4, 2007, the date on which petitioner received the actual 24 document which enables him to file this Petition for Writ of Habeas Corpus. Id. at 10. 25 Petitioner contends he was diligent in attempting to contact his original trial counsel who 26 would have evidence about his ineffective assistance of counsel claim, but was unable to do 27 so until June 4, 2007. Id. at 12. 28 Respondent did not file a reply.
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On February 10, 2009, Magistrate Judge Porter issued the Report and Recommendation

2 ("R&R") which recommends that the motion be granted. (Doc. # 19). The R&R concluded 3 that Petitioner's conviction became final on October 12, 1999. Id. at 3. The R&R concluded 4 that, "absent tolling, Petitioner had until October 12, 2000 to file a timely habeas petition. 5 However, Petitioner did not file the instant petition until May 7, 2009." Id. The R&R 6 concluded that neither statutory tolling for "newly discovered evidence" nor equitable tolling 7 render the petition timely. Id. at 4. 8 The R&R concluded that newly discovered evidence does not justify statutory tolling

9 pursuant to 28 U.S.C. § 2244(d)(1)(D) because "Petitioner knew, or should have known, of all 10 facts supporting his claim of ineffective assistance of trial counsel" at the time of trial. Id. at 11 6. The R&R concluded that Plaintiff is not entitled to statutory tolling because petitioners do 12 "not need `to understand the legal significance of facts--rather than simply the facts 13 themselves--before the due diligence (and hence the limitations) clock started ticking.'" Id. 14 (citing Hasan v. Galaza, 254 F.3d 1150, 1154 (9th Cir. 2001)). The R&R concluded that even 15 if Petitioner did not realize "that trial counsel's failure to present a theory of self-defense 16 constituted ineffective assistance of counsel, the Court cannot reset the statute of limitations." 17 Id. at 6-7. 18 The R&R concluded that Petitioner is not entitled to equitable tolling because he has

19 not established that "`extraordinary circumstances beyond [his] control [made] it impossible 20 to file a petition on time.'" Id. at 7 (citing Espinoza-Matthews v. California, 432 F.3d 1021, 21 1026 (9th Cir. 2005)). The R&R concluded that "`lack of legal sophistication is not, by itself, 22 an extraordinary circumstance . . . .'" Id. (citing Raspberry v. Garcia, 448 F.3d 1150, 1154 23 (9th Cir. 2006)). The R&R concluded that "Petitioner fails to explain how limited

24 communications with his counsel for his direct appeal warrant equitable tolling as to his 25 federal habeas petition." Id. at 8. Therefore, the R&R concludes that "Petitioner has not 26 presented `any allegation that would, if true, entitle him to equitable tolling,'" and is therefore 27 not entitled to an evidentiary hearing. Id. (citing Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 28 2006)).
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The R&R informed the parties that any party may file an objection no later than March

2 3, 2010 and that any reply shall be filed within seven days of receiving the objections. Id. On 3 March 4, 2010, the Court received Petitioner's Objections to Magistrate's Report and 4 Recommendation. (Doc. # 21). Petitioner mailed his objection on March 3, 2010. Id. 5 Respondent did not file any objections or any response to Petitioner's objections. 6 In his objection, Petitioner states that he was a minor at the time of his conviction, that

7 he is "uneducated in the law, not even having graduated from high school, and relied on 8 counsel in representing petitioner to the full extent of the law . . . ." Id. at 2. Petitioner states 9 that the R&R "errs in assuming Petitioner knew of the issues before, during, and even after 10 trial in support of his ineffective assistance of counsel claims." Id. Petitioner states that he did 11 not know of the Sixth Amendment right to effective assistance of counsel and only "after 12 learning through [Petitioner's original retained counsel's] declaration and showing it to a jail 13 house lawyer was petitioner made aware" that his right to counsel had been violated. Id. at 3. 14 Petitioner states that he learned through his contact with his original trial attorney that there 15 were additional avenues of investigation that his original trial attorney believes the replacement 16 trial counsel should have pursued. Id. at 5. 17 Petitioner states that the R&R errs in determining that Petitioner has not presented any

18 allegations which, if true, would entitle him to equitable tolling. Id. Petitioner states that he 19 did attempt to contact his original attorney prior to 2007 but was unable to reach him. Id. at 20 7. Petitioner states that these circumstances merit equitable tolling. Id. Petitioner states that 21 the R&R errs in stating Petitioner did not present a connection between the ineffective 22 assistance of his appellate counsel and his request for equitable tolling. Id. at 8. Petitioner 23 states "the magistrate fails to understand that the direct appeal attorney is also expected and 24 held to the United States Constitution Sixth Amendment, because of his ineffectiveness, 25 petitioner was prejudiced heavily on appeal." Id. at 8. Petitioner states appellate counsel was 26 ineffective for failure to conduct an investigation of extrinsic, extra-record evidence. Id. 27 Petitioner contends the appellate attorney should have raised his ineffective assistance of 28 counsel claims. Id.
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Petitioner also attached a sworn declaration restating the factual basis for his objection.

2 (Doc. # 21-1 at 1-2). 3 4 APPLICABLE LAW The duties of the district court in connection with the Report and Recommendation of

5 a Magistrate Judge are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 6 U.S.C § 636(b). The district judge "must make a de novo determination of those portions of 7 the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in 8 part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b). The 9 district court need not review de novo those portions of a Report and Recommendation to 10 which neither party objects. Wang v. Masaitis, 416 F.3d 992, 100 n. 13 (9th Cir. 2005); United 11 States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc). 12 AEDPA provides one year for state prisoners to file a federal habeas corpus petition

13 from the latest of: 14 15 16 17 18 19 20 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

21 28 U.S.C. § 2244(d)(1). 22 To fall under 28 U.S.C. § 2244(d)(1)(D), it is insufficient for a Petitioner to establish

23 that he was unaware of the legal significance of facts prior to a certain date, rather he must 24 show that he was unaware of the facts themselves and that those facts "could not have been 25 discovered through the exercise of due diligence." See Hasan, 254 F.3d at 1154. 26 The Ninth Circuit "permits equitable tolling of the one-year statute of limitations on

27 habeas petitions, but the petitioner bears the burden of showing that equitable tolling is 28 appropriate." Raspberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006). "The petitioner must
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1 establish two elements: (1) that he has been pursuing his rights diligently, and (2) that some 2 extraordinary circumstance stood in his way." Id. (internal quotations omitted). "[A] pro se 3 petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance 4 warranting equitable tolling." Id., see also Roy v. Lampert, 465 F.3d 964, 970. 5 A petitioner's request for a hearing on tolling should be granted if the petitioner "makes

6 a good faith allegation that would, if true, entitle him to equitable tolling." Id. at 969. In other 7 words, a petitioner must allege facts that show that he has "been pursuing [his] rights diligently 8 [and] that some extraordinary circumstance got in [his] way" before a court will grant a hearing 9 on tolling. See id. (citation omitted). 10 11 ANALYSIS Neither party objected to the Magistrate Judge's conclusion that Petitioner's conviction

12 became final on October 12, 1999 and that Petitioner had until October 12, 2000 to timely file 13 a petition for a writ of habeas corpus absent some form of tolling. See Doc. # 19 at 3. The 14 Court has reviewed this portion of the R&R and concludes the Magistrate Judge correctly 15 calculated these dates. 16 Petitioner objected to the Magistrate Judge's conclusion that he is not entitled to

17 statutory tolling or to equitable tolling. However, Petitioner's objection states his disagreement 18 with the law rather than his disagreement with the application of the law by the Magistrate 19 Judge. 20 Petitioner asserts that he was entitled to statutory tolling on the grounds that he was

21 unaware of his Sixth Amendment right to effective assistance of counsel at trial and on appeal 22 until his original trial attorney and a jailhouse lawyer informed him of that right. However, the 23 statutory provision states that the one year statute of limitations begins to run "the date on which 24 the factual predicate of the claim or claims presented could have been discovered through the 25 exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D) (emphasis added). Petitioner's contention 26 that he was unaware of the legal significance of facts he already knew is not sufficient to toll 27 the one-year statute of limitations under AEDPA. See Hasan, 254 F.3d at 1154. After 28 conducting de novo review of the record and the R&R, the Court finds Petitioner is not entitled
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1 to statutory tolling. 2 Petitioner's objection further asserts that he is entitled to equitable tolling and that the

3 Magistrate Judge failed to consider the fact that Petitioner's attorney on direct appeal was also 4 ineffective and the fact that Petitioner previously attempted to contact his original trial attorney 5 to no avail. The Court concludes that Petitioner has failed to show that this alleged ineffective 6 assistance of appellate counsel had any effect on his ability to file a petition for a writ of habeas 7 corpus. As for his prior efforts to contact his original trial counsel, Petitioner was aware of the 8 relevant facts that underlie his ineffective assistance of counsel claim as to his replacement trial 9 counsel at the time of trial. The significant information Plaintiff learned from his original trial 10 counsel was the legal significance of the facts he already knew. Plaintiff has made a claim for 11 equitable tolling based on his "lack of legal sophistication," which cannot be the basis of an 12 equitable tolling claim. See Raspberry, 448 F.3d at 1153. After conducting de novo review of 13 the record and the R&R, the Court finds Petitioner is not entitled to equitable tolling. 14 Plaintiff has not alleged facts which, if true, entitle him to statutory tolling pursuant to

15 28 U.S.C. § 2244(d)(1)(D) or to equitable tolling. Because Plaintiff has not met this burden, 16 the Court finds he is not entitled to a hearing. 17 18 CONCLUSION IT IS HEREBY ORDERED THAT (1) the Report and Recommendation (Doc. # 19)

19 is ADOPTED in its entirety; and (2) the Motion to Dismiss Petition for Writ of Habeas Corpus 20 (Doc. # 12) is GRANTED. 21 DATED: March 16, 2010 22 23 24 25 26 27 28
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WILLIAM Q. HAYES United States District Judge