Brown v. Busby

Filing 38

ORDER denying 37 Motion for Leave to Seek Reconsideration. The COA Motion provides no adequate reason why the Court should reconsider its denial of a COA, and is therefore DENIED. This does not prevent Brown from obtaining a COA from the Ninth Circuit. Signed by Judge Larry Alan Burns on 11/9/11. (All non-registered users served via U.S. Mail Service)(kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DESMOND BROWN,

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CASE NO. 10CV2302-LAB
Petitioner,

ORDER DENYING MOTION FOR
LEAVE TO SEEK
RECONSIDERATION

vs.
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MATTHEW CATE, Secretary of the
California Department of Corrections and
Rehabilitation,

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Respondent.

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Petitioner Desmond Brown, a prisoner in state custody, filed his petition for writ of

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habeas corpus pursuant to 28 U.S.C. § 2254, seeking relief from his conviction in California

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state court. The petition argues someone else committed the crimes Brown was convicted

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of, and that new evidence establishes his innocence.

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This matter was referred to Magistrate Judge Nita Stormes for report and

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recommendation. On July 28, 2011, Judge Stormes issued her report and recommendation

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(the "R&R"), recommending that Respondent’s motion to dismiss the petition be granted,

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and that the petition be dismissed with prejudice. Objections were originally due August 19,

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but Brown sought an extension of time in which to object, citing limited access to the prison

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library. The Court granted his request, directing him to file his objections no later than

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September 17, 2011.
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On August 15, the Court accepted by discrepancy order a letter from Brown asking

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for help finding certain legal opinions not readily available to him. The Court directed that

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copies of those opinions be sent to him.

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Brown did not file any objections, but he did file a second motion for extension of time,

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giving two reasons for the second extension. The court denied this on September 15, two

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days before objections were due. That order explained that additional pieces of evidence

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Brown was waiting for were either not relevant or could not be considered when ruling on the

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petition.

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Even after the second extension request was denied, Brown filed no objections to the

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R&R. On September 26, 2011, the Court issued an order adopting the R&R, denying the

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petition, and denying a certificate of appealability (“COA”). The order pointed out the

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petition was time-barred by at over eight months. The order also discussed Brown’s “new”

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evidence in detail, explaining why it did not meet the standard to show an “actual innocence”

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exception to the AEDPA’s limitations might apply.

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Brown sent the Court two documents, which were rejected on October 5, and 7,

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respectively, with the notion that the court had already ruled on the matters they raised. The

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first of these is dated on September 26, and the text can be found in the docket, (Docket no.

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32 at 2.) It contains a request for reconsideration of the Court’s order denying his second

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request for an extension of time, contending that he had shown he needed more time in the

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prison library. In truth, however, the second request mentioned restrictions on prison library

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use only in support of Brown’s claim that he needed to correct part of his evidence.

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Specifically, he gave as his first reason for needing an extension of time:

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1. That as a layman I did not recognize the misstatement of fact contained
in one of the declarations supporting my petition, until the Magistrate cited
to it in denying relief; and I was hindered in my ability to research decisional
law cited in the R&R before receiving those cases in late August 2011. I am
further hindered by that I am receiving just one 2-hour library session in each
7-day period.

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(Docket no. 32, 1:15–18.) The Court’s order denying the second extension pointed out both

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that the “misstatement of fact” didn’t change the outcome, and that in any event the
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declaration containing the alleged misstatement had been presented to state courts when

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Brown was seeking habeas relief there. See Cullen v. Pinholster, 131 S.Ct. 1388, 1399 ("It

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would be contrary to [the purposes of the federal habeas corpus scheme] to overcome an

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adverse state-court decision with new evidence introduced in a federal habeas court and

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reviewed by that court in the first instance effectively de novo.") Because this corrected

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declaration wouldn’t be considered, the Court found Brown didn’t need additional library time

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to research issues connected with it. And, although the Court did not mention this fact

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before, it also bears mention that Brown’s status as a laymen had nothing to do with whether

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he recognized an inaccuracy in one of the statements in a very brief declaration he has had

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since 2008.
The second document was a letter to the Clerk requesting conformed copies of
documents.

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Brown filed his notice of appeal, dated October 25. He then filed a notice of appeal

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dated October 31, purporting to appeal the Court’s first discrepancy order, rejecting his first

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letter for filing, and describing it as an interlocutory order. He then filed a request (the “COA

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Motion”) dated November 1 for leave to file a motion seeking reconsideration of the Court’s

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denial of the certificate of appealability.

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The COA Motion re-raises the question of whether his second request for extension

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of time should have been granted, which he raised in his September 26 request. The Court

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did not have his September 26 request when it issued the order denying the petition and

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denying the COA, so in the interest of clarity, some discussion is in order.

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Brown’s request for a second extension of time did not identify any need for more

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library time generally, as he now contends, but only for more library time so he could

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research an irrelevant issue. Having been told that issue was irrelevant, he should

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immediately have realized he should not continue researching it, but should have

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immediately completed and filed his objections to the R&R. If he needed more time to

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research other, relevant issues, he should have said so, explaining what the issues were.

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Instead, he allowed the deadline for objecting to the R&R to pass without filing any
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objections. The only thing he attempted to file was his request for reconsideration of the

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already-denied request for extension, which added nothing. His COA Motion belatedly

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raises the same issue, and argues the Court’s previous denial of the extension was

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insufficiently clear, because it failed to consider whether he might need additional library time

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for some other reason that he neglected to mention. This has no merit; the Court’s failure

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to consider requests or arguments Brown never made was not error.

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The COA Motion asks the Court to re-open Brown’s case and grant the petition. The

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Court cannot do this, even if it were convinced it should, because the notice of appeal

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divests the Court of jurisdiction over the matters appealed. See Stein v. Wood, 127 F.3d

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1187, 1189 (9th Cir. 1997).

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The COA Motion also makes other meritless procedural arguments. Contrary to

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Brown’s position, he is required to obey the Court’s orders concerning when his objections

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to the R&R are due, and the mere fact that he requests more extensions does not

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automatically extend the time. The Court is not required to conduct its own de novo review

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of an unobjected-to R&R, Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005), and

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the fact that the Court conducted only a limited discussion of the merits, sufficient to confirm

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that the petition must be denied, was not error. The Court was not, as Brown argues,

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required to scour the record for reasons a COA might be warranted. And although Brown

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now contends the Court did not review or consider his Petition, this is also incorrect. The

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fact that the Court quoted from and discussed the two exhibits he attached to the petition

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should have made this clear.

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The COA Motion provides no adequate reason why the Court should reconsider its

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denial of a COA, and is therefore DENIED. This does not prevent Brown from obtaining a

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COA from the Ninth Circuit.

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IT IS SO ORDERED.

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DATED: November 9, 2011

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HONORABLE LARRY ALAN BURNS
United States District Judge
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