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)

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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

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