Gumienny v. Martel et al

Filing 44

ORDER. Court overrules Petitioner's 39 Objections, approves and adopts 34 Report and Recommendation in its entirety, grants Respondent's 10 Motion to Dismiss, denies Petitioner's 24 Motion to Amend/Correct, and dismisses the Petition without prejudice. Because reasonable jurists would not find Court's assessment of the claims in the petition debatable or wrong, Court denies Petitioner's 41 Motion for Certificate of Appealability. Signed by Judge Cynthia Bashant on 11/4/2015. (All non-registered users served via U.S. Mail Service) (jah)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

GARTH JASON GUMIENNY,
Petitioner,

12
13

Case No. 14-cv-2002-BAS-DHB
ORDER:

v.

(1) OVERRULING
PETITIONER’S OBJECTIONS;

14
15
16

(2) ADOPTING REPORT AND
RECOMMENDATION;

MICHAEL F. MARTEL, et al.,

(3) GRANTING RESPONDENT’S
MOTION TO DISMISS; AND

Respondent.

17

(4) DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS
WITHOUT PREJUDICE

18
19
20
21

On August 18, 2014, Petitioner Garth Jason Gumienny, a state prisoner

22

proceeding pro se, filed the instant Petition for Writ of Habeas Corpus (“Petition”)

23

under 28 U.S.C. § 2254. (ECF No. 1.) Petitioner seeks relief from a sentence of 21

24

years to life imposed after he pled guilty to (1) sexual penetration of a child ten years

25

of age or younger and (2) committing a lewd act upon a child. Id. On November 17,

26

2014, Respondent moved to dismiss the petition. (ECF No. 10.) On July 8, 2015,

27

United States Magistrate Judge David H. Bartick issued a Report and

28

Recommendation (“Report” or “R&R”) recommending that this Court grant
–1–

14cv2002

1

Respondent’s motion to dismiss and deny Petitioner’s motion to amend the Petition.

2

(ECF No. 34.) Petitioner filed objections to the Report. (ECF No. 39.)

3

For the following reasons, the Court OVERRULES Petitioner’s objections,

4

ADOPTS the Report in its entirety, GRANTS Respondent’s motion to dismiss, and

5

DENIES Petitioner’s motion to amend. Furthermore, the Court DENIES Petitioner’s

6

application for a certificate of appealability. (ECF No. 41.)

7

I.

LEGAL STANDARD

8

The Court reviews de novo those portions of an R&R to which objections are

9

made. 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in whole or

10

in part, the findings or recommendations made by the magistrate judge.” Id. But

11

“[t]he statute [28 U.S.C. § 636(b)(1)(c)] makes it clear that the district judge must

12

review the magistrate judge’s findings and recommendations de novo if objection is

13

made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th

14

Cir. 2003) (en banc) (emphasis in original); see also Schmidt v. Johnstone, 263 F.

15

Supp. 2d 1219, 1226 (D. Ariz. 2003) (concluding that where no objections were filed,

16

the district court had no obligation to review the magistrate judge’s report). “Neither

17

the Constitution nor the statute requires a district judge to review, de novo, findings

18

and recommendations that the parties themselves accept as correct.” Reyna-Tapia,

19

328 F.3d at 1121. This legal rule is well-established in the Ninth Circuit and this

20

district. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005) (“Of course,

21

de novo review of a[n] R & R is only required when an objection is made to the R &

22

R.”); Nelson v. Giurbino, 395 F. Supp. 2d 946, 949 (S.D. Cal. 2005) (Lorenz, J.)

23

(adopting report in its entirety without review because neither party filed objections

24

to the report despite the opportunity to do so); see also Nichols v. Logan, 355 F. Supp.

25

2d 1155, 1157 (S.D. Cal. 2004) (Benitez, J.).

26

II.

DISCUSSION

27

Judge Bartick makes two relevant findings in the Report: (1) the Petition is

28

untimely and (2) equitable tolling does not apply. (Report 4:2–4; 8:22–23.) Petitioner
–2–

14cv2002

1

does not challenge Judge Bartick’s finding that the Petition is untimely, but argues

2

that he is entitled to an evidentiary hearing on the question of Petitioner’s mental

3

competence during the relevant filing period. The gravamen of Petitioner’s objection

4

is that Petitioner put forward allegations of mental illness sufficient to compel the

5

magistrate to “order[] development of [the] factual record on eligibility for equitable

6

tolling due to mental incompetence.” (Pet’r’s Obj. 4:21–5:6.) Petitioner asserts that

7

further development of the record through an evidentiary hearing would allow him

8

to demonstrate that he is entitled to equitable tolling of the one-year limitation period

9

that governs his Petition under 28 U.S.C. § 2244.

10

A. Equitable Tolling and Mental Impairment

11

Pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a

12

one-year period of limitation applies to an application for writ of habeas corpus filed

13

“by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. §

14

2244(d)(1). This one-year statute of limitations may be tolled for equitable reasons.

15

See Holland v. Florida, 560 U.S. 631, 645 (2010). Equitable tolling has been deemed

16

appropriate in cases arising under § 2244 if the petitioner can show: (1) that he has

17

been diligently pursuing his rights and (2) that an extraordinary circumstance

18

prevented timely filing. Holland, 560 U.S. at 649 (2010); Ramirez v. Yates, 571 F.3d

19

993, 997 (9th Cir. 2009). The petitioner must show that the extraordinary

20

circumstances actually caused the untimeliness. Spitsyn v. Moore, 345 F.3d 796, 799

21

(9th Cir. 2003). “[A] pro se petitioner’s lack of legal sophistication is not, by itself,

22

an extraordinary circumstance warranting equitable tolling.” Raspberry v. Garcia,

23

448 F.3d 1150, 1154 (9th Cir. 2006). That includes a petitioner’s inability to correctly

24

calculate the limitations period. Id. Consequently, equitable tolling is “unavailable in

25

most cases” and has a “very high” threshold before it can be applied. Miranda v.

26

Castro, 292 F.3d 1063, 1066 (9th Cir. 2002).

27

Where, as here, a petitioner’s purported mental impairment serves as the basis

28

for an equitable tolling claim, a petitioner must demonstrate the impairment was so
–3–

14cv2002

1

severe that either: “(a) petitioner was unable rationally or factually to personally

2

understand the need to timely file, or (b) petitioner’s mental state rendered him unable

3

personally to prepare a habeas petition and effectuate its filing.” Bills v. Clark, 628

4

F.3d 1092, 1099–1100 (9th Cir. 2010). In addition, “the petitioner must show

5

diligence in pursuing the claims to the extent he could understand them, but that the

6

mental impairment made it impossible to meet the filing deadline under the totality

7

of the circumstances, including reasonable available access to assistance.” Id. Here,

8

Judge Bartick found that the “scant evidence” presented by Petitioner (1) failed to

9

demonstrate mental impairment of sufficient severity to justify equitable tolling and

10

(2) did not constitute a non-frivolous showing of mental impairment such that

11

Petitioner was entitled to an evidentiary hearing. (Report 7:17–8:8.) Judge Bartick

12

further found that even assuming Petitioner’s claims of mental impairment should be

13

credited, and that Petitioner is entitled to equitable tolling, the Petition would still be

14

untimely. (Report 8:9–21.) This Court agrees with Judge Bartick and finds

15

Petitioner’s objections unavailing.

16
17

B. Petitioner Was Not Entitled to an Evidentiary Hearing on the Question
of Mental Impairment

18

Petitioner’s objection that he was entitled to an evidentiary hearing on the

19

question of mental competency misconstrues the relevant standard. (Pet’r’s Obj. 3–

20

5; 7:15–24.) Petitioner argues that his mere declaration that he was on mind-altering

21

medications is sufficient to compel an evidentiary hearing. This is incorrect. The

22

standard governing whether a petitioner is entitled to an evidentiary hearing is not

23

whether the petitioner has made conclusory assertions that mental impairment

24

prevented a timely filing. Rather, the standard is whether “the petitioner has made a

25

non-frivolous showing that he had a severe mental impairment during the filing

26

period that would entitle him to an evidentiary hearing[.]” Bills, 628 F.3d at 1100.

27

Such a showing requires “circumstances consistent with petitioner’s petition . . .

28

under which he would be entitled to a finding of” mental impairment. Laws v.
–4–

14cv2002

1

Lamarque, 351 F.3d 919, 924 (9th Cir. 2003.) Petitioner has not made a non-frivolous

2

showing of such circumstances. Instead, Petitioner simply asserts that during the

3

relevant filing period “he was suffering from mental incompetency” due to

4

psychiatric and pain medications “that limited his ability to understand legal

5

procedures[.]” (Pet’r’s Obj. 3, 4.) The record reflects that the psychiatric and pain

6

medications to which Petitioner refers consisted of one or more anti-depressants and

7

pain relievers. (ECF No. 1 at 40; ECF No. 4 at 31.) Petitioner makes no suggestion

8

that there was something extraordinary about his pain medication or anti-depressants,

9

or that there were other medications not identified, such that he can establish that he

10

was “unable to rationally or factually understand the need to timely file” or that his

11

mental state “rendered him unable personally to prepare a habeas petition and

12

effectuate its filing.” Bills, 628 F.3d at 1099–1100. Thus, Petitioner has not shown

13

that further development of the record would allow Petitioner to demonstrate the

14

severe mental incompetency he asserts. Under such circumstances, a court is not

15

required to grant an evidentiary hearing. See Schriro v. Landrigan, 550 U.S. 465, 474

16

(2007) (“In deciding whether to grant an evidentiary hearing, a federal court must

17

consider whether such a hearing could enable an applicant to prove the petition’s

18

factual allegations, which, if true, would entitle the applicant to federal habeas

19

relief.”).

20

Furthermore, Petitioner admits that during the period in which he claims

21

mental incompetency, he “ask[ed] ‘Jailhouse Lawyers’ about [his] avenues on

22

appeal” and thought “the process they explained seemed utterly impossible[.]” (ECF

23

No. 1 at 29–30.) Petitioner also explains that “for about 12 months” after his transfer

24

to state prison on August 26, 2010, Petitioner “made attempts to access the court to

25

appeal his case” even as he was “suffering from a mental defect and on mind altering

26

mediations.” (ECF No. 1 at 152.) In other words, Petitioner’s alleged mental

27

impairment did not, in fact, prevent him from seeking out legal advice during the

28

relevant filing period. Under these circumstances, where Petitioner’s actions rebut
–5–

14cv2002

1

his factual allegations, the court is not required to hold an evidentiary hearing. See

2

Schriro, 550 U.S. at 474 (“[I]f the record refutes the applicant’s factual allegations

3

or otherwise precludes habeas relief, a district court is not required to hold an

4

evidentiary hearing.”); see also Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998)

5

(affirming denial of an evidentiary hearing where the applicant’s factual allegations

6

“fl[ew] in the face of logic in light of . . . [the applicant’s] deliberate acts which are

7

easily discernible from the record).

8
9

C. Crediting Petitioner’s Claim of Mental Impairment Would Not
Render the Petition Timely

10

Petitioner apparently fails to understand that even if the Court credits

11

Petitioner’s contention that he “came out of mental incompetency” on January 15,

12

2012, the one-year limitations period still would have expired by the time Petitioner

13

filed his first state habeas petition on October 2, 2013. Judge Bartick made this point

14

explicitly in his report, and his analysis is correct. (Report 8:9–21.) Thus, even

15

assuming Petitioner is entitled to equitable tolling based on mental impairment severe

16

enough to satisfy Bills, the petition would nonetheless be time barred because

17

Petitioner made no filing by January 15, 2013—i.e., the end of a hypothetical

18

limitations period that credits Petitioner’s claimed mental impairment. Accordingly,

19

the court is not required to hold an evidentiary hearing. See Jiminez v. Rice, 276 F.3d

20

at 482 (a state habeas petition filed after the limitations period expires “result[s] in

21

an absolute time bar”); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003);

22

see also Schriro, 550 U.S. at 474 (“[I]f the record refutes the applicant’s factual

23

allegations or otherwise precludes habeas relief, a district court is not required to

24

hold an evidentiary hearing.”) (emphasis added).

25

D. Petitioner Was Not Misled by the Superior Court

26

Petitioner also objects that the Magistrate failed to address Petitioner’s claim

27

that he was “affirmatively misled” by Superior Court Judge John Thompson and that

28

this deception constitutes an “extraordinary circumstance” entitling Petitioner to
–6–

14cv2002

1

equitable tolling. (Pet’r’s Obj. 8, 9.) Petitioner argues that Judge Thompson misled

2

the Petitioner by “telling him the court would consider the pleadings seeking relief

3

from the conviction” and then denying habeas relief after finding the petition was

4

untimely and did not present a prima facie case for relief. (Pet’r’s Obj. 9:7–21.)

5

This accusation is meritless and misguided. Judge Thompson’s September 12,

6

2012 order denying Petitioner’s motion for transcripts—the order at the heart of the

7

alleged deception—simply states that even though Petitioner “failed to set forth

8

sufficient facts to show that the transcripts of his case are necessary at the present

9

time,” he still “has the ability to set forth his contentions without the transcripts and

10

then the court considering his pleadings . . . can determine if a transcript of the hearing

11

is necessary.” (ECF No. 1, Exh. D at 65.) There is no reasonable way to read this

12

statement as misleading. In fact, this portion of Judge Thompson’s order impliedly

13

urges Petitioner to move forward with his habeas petition. Petitioner instead waited

14

another year before filing his first habeas petition, and the court ultimately found that

15

Petitioner had not set forth a prima facie statement of facts that would entitle him to

16

relief. (Lodgment No. 5; ECF No. 11-6 at 43.) This finding represents the court’s

17

implicit determination that a transcript of the hearing was unnecessary. Thus, there

18

was nothing misleading about Judge Thompson’s order. Petitioner’s groundless

19

claim to the contrary cannot support a finding that equitable tolling is warranted.

20

E. Amending the Petition is Futile Under the Circumstances

21

Petitioner’s precise objections to the Report’s recommendation that his motion

22

to amend be denied are difficult to discern, but not difficult to decide. Petitioner’s

23

objections fail to address the principle that a denial of leave to amend is appropriate

24

where amendment of a petitioner’s petition would be futile. See Ascon Props., Inc. v.

25

Mobile Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (leave to amend under Rule

26

15(a)(2) “need not be granted where the amendment . . . constitutes an exercise in

27

futility”); DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). Here,

28

the Magistrate correctly found that the Petition is time barred. Thus, amendment is
–7–

14cv2002

1

futile because the claims that Petitioner seeks to add would become part of this time-

2

barred Petition. Petitioner apparently believes the futility principle involves an

3

assessment of the merits of the additional claims asserted, but this is incorrect.

4

(Pet’r’s Obj. 11.) Here, amendment is not futile because the additional claims are

5

weak; amendment is futile because regardless of the strength of the additional claims,

6

the petition itself is deficient. Accordingly, Petitioner’s objection on this point fails.1

7

III.

CONCLUSION & ORDER

8

After considering Petitioner’s objections and conducting a de novo review, the

9

Court concludes that Judge Bartick’s reasoning is sound. Petitioner’s habeas petition

10

is untimely and not entitled to equitable tolling, and amendment of the Petition would

11

be futile. In light of the foregoing, the Court OVERRULES Petitioner’s objections,

12

APPROVES and ADOPTS the Report in its entirety, GRANTS Respondent’s

13

motion to dismiss, DENIES Petitioner’s motion to amend, and DISMISSES

14

WITHOUT PREJUDICE the Petition.

15

Moreover, a certificate of appealability may issue only if the applicant makes

16

a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).

17

Under this standard, a petitioner must show that reasonable jurists could debate

18
19
20
21
22
23
24
25
26
27
28

Petitioner makes a number of other objections that are either insufficiently specific, redundant, or
meritless. Viewing these difficult to discern objections in a light most favorable to Petitioner, see
Pet’r’s Obj. 2–7, Petitioner is essentially arguing that even though he “came out of mental
incompetence on January 15, 2012,” a lack of access to materials from May 16, 2012 through
October 2, 2013, allegedly caused by obstruction by the state court, constitutes an extraordinary
circumstance entitling him to equitable tolling. (Pet’r’s Obj. 7:3–7.) Petitioner, however, fails to
acknowledge that the Magistrate did, in fact, address this argument, noting that “Petitioner could
have filed his habeas petition without the transcripts, which it appears he ultimately did.” (Report
6:23–24.) Indeed, the Superior Court Judge advised Petitioner of this option in the Judge’s motion
denying Petitioner’s request for transcripts. In short, Petitioner has not shown that “the hardship
caused by lack of access to his materials was an extraordinary circumstance that caused him to file
his petition . . . late.” Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 (9th Cir. 2009).
1

The Court also reviewed objections Petitioner made under other headings of his Objection.
Petitioner’s arguments in Section I (titled “Denial of Right to Appeal”) and Section V (titled
“Cause and Prejudice”) fail because, among other reasons, they fail to show that Petitioner was
entitled to equitable tolling. Petitioner’s objection in Section VI (titled “Judicial Notice”) is off
point as it reflects a misunderstanding of Federal Rule of Evidence 201.
–8–

14cv2002

1

whether the petition should been resolved in a different manner or that the issues

2

presented were adequate to deserve encouragement to proceed further. Miller-El v.

3

Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484

4

(2000)). Here, Petitioner has not made the requisite showing. Because reasonable

5

jurists would not find the Court’s assessment of the claims in the petition debatable

6

or wrong, the Court DENIES Petitioner’s application for a certificate of

7

appealability. See Slack, 529 U.S. at 484.

8

IT IS SO ORDERED.

9
10

DATED: November 4, 2015

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
–9–

14cv2002