Lambert v. Paersson

Filing 44

OPINION AND ORDER: The Court DENIES the Petition for Writ of Habeas Corpus 1 and DISMISSES this case. The Court DENIES a certificate of appealability as Petitioner has not made a substantial showing of the denial of a constitutional right. (See 11-page opinion for more information.) Signed on 8/13/2019 by Judge Anna J. Brown. (dsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
INEZ LAMBERT,
Civil No. 3:17-cv-00331-BR
Petitioner,
OPINION AND ORDER
v.
ROB PAERSSON,
Respondent.
OLIVER W. LOEWY
Assistant Federal Public Defender
101 SW Main Street
Suite 1700
Portland, OR 972014
Attorney for Petitioner
ELLEN F. ROSENBLUM
Attorney General
NICHOLAS M. KALLSTROM
Assistant Attorney General
Oregon Department of Justice
1162 Court Street NE
Salem, OR 97301
Attorneys for Respondent

1 - OPINION AND ORDER -

BROWN, Senior Judge.
Petitioner,

an

inmate

at

the

Coffee

Creek

Correctional

Institution, brings this habeas corpus action pursuant to 28 U.S.C.
§ 2254.

For the reasons that follow, the Court DENIES the Petition

for Writ of Habeas Corpus (ECF No. 1).
BACKGROUND

On January 18, 2011, a Multnomah County grand jury indicted
Petitioner on six counts of Sodomy in the First Degree,

seven

counts of Using a Child in a Display of Sexually Explicit Conduct,
and six counts of Sexual Abuse in the First Degree.
102, pp. 1-3.

Resp. Exh.

Pursuant to a plea agreement, on December 2, 2011,

the trial court entered a judgment of conviction on two counts of
Sodomy in the First Degree and two counts of Using a Child in a
Display of Sexually Explicit Conduct.

Resp. Exh. 101.

The trial

judge sentenced Petitioner to a total of 25 years of imprisonment.
Resp. Exh. 101.
Petitioner did not file a direct appeal.
Petitioner
( II

PCR") .

filed

a

petition

for

state

On November 8, 2012,

post-conviction

The PCR trial court denied relief.

Petitioner appealed,

but

the Oregon Court

without

the

Oregon

opinion

and

Supreme

Resp.

Exh.

of Appeals
Court

relief

denied

126.

affirmed
review.

Lambert v. Steward, 276 Or. App. 461, 368 P.3d 85, rev. denied, 359

Or. 166, 376 P.3d 281
June 3, 2016.

(2016).

Resp. Exh. 132.

2 - OPINION AND ORDER -

The appellate judgment issued on

On February 28, 2017, Petitioner filed her Petition for Writ
of Habeas Corpus in this Court.
was untimely.

Petitioner concedes her Petition

Petitioner argues, however, that the Court should

equitably toll the statute of limitations and consider the Petition
on its merits.

Respondent disagrees, and asks the Court to dismiss

the action as untimely.
LEGAL STANDARDS

Equitable tolling is available to toll the one-year statute of
limitations available to 28 U.S. C.

§

2254 habeas corpus cases.

Holland v. Florida, 560 U.S. 631, 645 (2010).

to invoke equitable tolling must establish:
pursuing her rights diligently; and

(2)

A litigant seeking
(1) that she has been

that some extraordinary

circumstance prevented her from timely filing the petition.
v. DiGuglielmo, 544 U.S. 408, 418 (2005).

Pace

A petitioner who fails

to file a timely petition due to her own lack of diligence is not
entitled to equitable tolling.
(9th Cir. 2001),

overruled on other grnds by Pliler v.

U.S. 225, 231 (2004).
that

this

Castro,

Tillema v. Long, 253 F.3d 494, 504

F.3d

542

The petitioner bears the burden of showing

"extraordinary exclusion"

292

Ford,

1063,

1065

(9th

should apply.
Cir.

2002).

Miranda

The

test

v.

for

equitable tolling "is a very high bar, and is reserved for rare
cases.

11

Yow Ming Yeh v. Martel,

751 F.3d 1075, 1077 (9th Cir.),

cert. denied, 135 S. Ct. 486 (2014).

3 - OPINION AND ORDER -

Generally, claims for equitable tolling based upon attorney
error do not arise to the level of an extraordinary circumstance
sufficient

to

warrant

equitable

tolling.

Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001)

See,

e.g.,

Frye

v.

(attorney negligence

in general does not justify equitable tolling); Holland, 560 U.S.
at 651-52 ( 11 garden variety 11 negligence does not warrant equitable
tolling).

11

Justice Alita explained his understanding of the logic

behind this framework, reasoning that,

'the principal rationale .

. . is that the error of an attorney is constructively attributable
to the client and thus is not a circumstance beyond the litigant's
control.

Gibbs v.

111

(quoting Holland,
denied 135

S.

Legrand,

560 U.S.

Ct.

1708

767 F.3d 879,

657

(Alita,

(2015).

J.,

885

concurring)),

Equitable

goes

beyond

professional misconduct;
altogether.

11

error

and

cert.

tolling based upon

attorney performance is only appropriate where:
performance

(9th Cir. 2014)

amounts

(1) an attorney's
to

11

egregious

or (2) the attorney abandons her client

Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015);
DISCUSSION

Here, the§ 2244(d) limitation period began to run on January
3,

2012,

the

date

that

the

30-day

Petitioner to file a direct appeal. 1

time

period

expired

for

Prior to the expiration of

In Bowen v. Roe, 188 F.3d 1157 (9th Cir. 1999), the Ninth
Circuit held that criminal convictions are not final until the time
has elapsed for seeking a writ of certiorari in the U.S. Supreme
Court. Here, however, Petitioner could not have sought certiorari
because she did not file a direct appeal. See 28 U.S.C. § 1257(a)
1

4 - OPINION AND ORDER -

the time to appeal her conviction and sentence, Petitioner's family
retained attorney Andy Simrin to represent Petitioner.

Simrin

advised Petitioner to forego a direct appeal in favor of filing a
PCR petition.
Prior

to

filing

the

state

PCR

petition,

Simrin

wrote

Petitioner three times advising her of the time limitations for
filing a federal habeas petition.

On December 12, 2011, Simrin

wrote:
There is a two-year time limit for starting a postconviction case.
If you take an appeal, the two-year
time limit would not even start until after your appeal
is completed.
If you do not take an appeal, then the
two-year time limit will have started on the day that the
judgment was entered into the register. Although there
is a two-year time limit for seeking post-conviction
relief, a post-conviction case should be filed as soon as
possible and must be filed within the first year in order
to preserve your right to subsequently seek federal
habeas corpus relief in the event that your postconviction case is not successful.
(ECF No. 28) Exh. 4.

On December 23, 2011, Simrin wrote a letter

expanding on this advice:

("[f]inal judgments or decrees rendered by the highest court of a
State in which a decision could be had, may be reviewed by the
Supreme Court by a writ of certiorari").
Thus, the limitation
period began to run when the time to file a direct appeal expired.
See Swantz v. Mills, Case No. 09-1161-SU, 2010 WL 2608337 (D. Or.
May 20, 2010) (where petitioner did not first petition Oregon's
appellate courts petitioner was not entitled to additional 90 days
under Bowen); see also Hemmerle v. Schriro, 495 F.3d 1069, 1073-74
(9th Cir. 2007) (concluding that where petitioner did not seek
review from Arizona's supreme court, his direct appeal was final
for the purposes of the limitation period set out at§ 2244(d) (1)
when his time for seeking review in Arizona's supreme court had
expired).
5 - OPINION AND ORDER -

The judgment in your criminal case was entered into the
trial court register on December 2, 2011.
That means
that you would have until December 1, 2013, to file a
petition for post-conviction relief if you decided that
is what you want to do. However, if you wish to preserve
your right to subsequently seek federal habeas corpus
relief in the event that your post-conviction case is not
successful, you should file your state post-conviction
petition as early as possible and you must file it within
the first year after the judgment was entered into the
register.
If you waited until after the first year to
file a petition for post-conviction relief, you would not
be able to seek federal habeas corpus relief afterwards.
(ECF No. 28) Exh. 4.

Finally, on October 19, 2012, Simrin wrote a

letter to Petitioner describing the§ 2244(d) (1) limitation period
as follows:
If we do seek post-conviction relief, but are not
successful, you may then file a petition for writ of
habeas corpus in federal court. There is a one-year time
limit for filing a petition for habeas corpus. That oneyear time limit started running when the judgment in your
criminal case was entered into the trial court register
on December 2, 2011.
If we file a petition for postconviction relief, that one-year time would get put on
hold until the post-conviction case was over. The oneyear federal habeas corpus timer wouldn't start all over
after the post-conviction case. Instead, you would have
however much time was still remaining at the time that
the post-conviction case was started.
As of now, the
federal habeas corpus timer has been running for ten and
a half months.
That means that you have a month and a
half left on your federal timer.
(ECF No. 28) Exh. 4.
On November 8, 2012, Simrin filed a state PCR petition.
noted,

As

the PCR trial court denied relief, and Petitioner did not

prevail on appeal.

On April 22,

2016, after the Oregon Supreme

denied a petition for review but before the appellate judgment

6 - OPINION AND ORDER -

issued, Simrin wrote Petitioner informing her as such and advising
as follows:
In a few weeks, the Court of Appeals will issue a
document called the appellate judgment, which signifies
that the appeal process is formally completed.
If you
wish to seek federal habeas corpus relief, you should
contact the federal public defender as soon as possible,
because there are strict time limits for getting a habeas
corpus case filed.
(ECF No.
2016.

28),

Exh. 4.

The appellate judgment issued on June 3,

Resp. Exh. 132.
Petitioner submits affidavits stating that shortly after the

Oregon Court of Appeals issued an affirmance in the state PCR case,
Simrin had conversations with Petitioner,
mother.
states

(ECF No. 28) Exhs. 1, 2, and 3.

her brother,

and her

In the affidavits, each

that Simrin told them that if the Oregon Supreme Court

rejected Petitioner's appeal, Petitioner would have one year from
that date to file her federal habeas petition.

Also, during the

course of conversations among the three, they confirmed with each
other that Simrin had told each of them that the deadline was a
year from the date the Oregon Supreme Court rejected the appeal.
Petitioner also submits an affidavit from Simrin, who states
that he has no memory of verbally advising Petitioner of the oneyear limitation period,

that tolling of the limitations period

needs to be calculated to determine how much of the limitations
period remains at any given time in a particular case,

how to

calculate that tolling, or that anything less than a year of the

7 - OPINION AND ORDER -

limitations period remained in her case at any particular time.
(ECF No.

28)

Exh. 4.

Simrin reviewed his files,

and located no

notes of conversations with her in which he provided verbal advice
regarding the limitations period.

Simrin further explained:

When the federal habeas limitation period has nearly
expired in a client's case, it is my general practice to
write to the client at the conclusion of state postconviction proceedings alerting them to how much time is
left to file their habeas petition and explaining the
tolling calculations which allow me to reach that
conclusion. My review of my file confirms that I did not
send such a letter to [Petitioner).
Likewise, my file
notes
do
not
indicate
that
I
verbally
alerted
[Petitioner) that the limited time she had left to file
a habeas petition was nearly expired. The absence of any
note in my file memorializing that I gave such advice
verbally confirms to me that I did not advise her about
that, nor did I explain to her the tolling calculations
leading to that conclusion.
(ECF No. 28) Exh. 4.
Petitioner's brother prepared a federal habeas petition for
Petitioner's signature, and sometime in October 2016, Petitioner's
mother unsuccessfully attempted to file it with this Court;

the

Clerk rejected the petition for a reason Petitioner's mother could
not

recall.

Petitioner' s

mother returned to

the

courthouse

in

February 2017, and successfully filed the petition.
Petitioner argues that she is entitled to equitable tolling
because Simrin misadvised her as to when the limitation period
started to run.

She contends that Simrin did more than merely

miscalculate the filing deadline, and instead, altogether failed to
advise that any calculation was necessary.

8 - OPINION AND ORDER -

As discussed above,

however, Simrin advised Petitioner before the state PCR action was
initiated of the fact that the habeas limitation period was already
running.

Moreover, even if Simrin erroneously advised Petitioner

and her family that the one-year limitation period would start to
run when the Oregon Supreme Court rendered its decision,

that

alleged advice does not indicate that no calculation was necessary.
Instead,

the alleged advice incorrectly indicates the date from

which to calculate the limitation period, a miscalculation which is
not sufficient to warrant equitable tolling.
Florida, 549 U.S. 327, 336-37 (2007)

See

Lawrence

v.

(" [a]ttorney miscalculation is

simply not sufficient to warrant equitable tolling, particularly in
the

postconviction

context

where

counsel"); Maples v Thomas,
"that

an attorney's

prisoners

565 U.S.

negligence,

for

266,

281

example,

have

no

(2012)

right

to

(restating

miscalculating a

filing deadline, does not provide a basis" for equitable tolling);
Gonzales-Gutierrez v.

2027732,

at *3

(D.

Case NO.

Nooth,

Or.

April 30,

2:16-cv-01969-MA,

2018)

2018 WL

(where PCR counsel led

petitioner to believe that his federal habeas corpus petition would
be timely if filed at the conclusion of state PCR proceedings,
equitable tolling not warranted).
Further,

the circumstances presented by Petitioner do not

demonstrate the exercise of reasonable diligence
warrant equitable tolling.
Court

declined

to

review

As noted,
the

9 - OPINION AND ORDER -

sufficient to

after the Oregon Supreme

dismissal

of

petitioner's

PCR

petition, but before the appellate judgment issued, Simrin advised
petitioner that she should contact a federal public defender "as
soon as possible, because there are strict time limits for getting
a habeas corpus filed."

(ECF No. 28), Exh. 4.

Petitioner did not

first attempt to file her habeas petition until some six months
after this advice, and when the petition was rejected by the clerk,
waited a further four months before re-submitting it.

Other than

re-stating her reliance upon Simrin•s alleged verbal advice that
she had one year to file

the petition,

further explanation for this delay.
to meet

the

analysis.
2006)

"diligent pursuit"

Petitioner provides no

Consequently, Petitioner fails

prong of

the

equitable

See Mendoza v. Carey, 449 F.3d 1065, 1071 n.6

tolling

(9th Cir.

( [t]he diligence prong in Pace requires a petitioner to show

he or she engaged in reasonably diligent efforts to file the§ 2254
petition throughout the time the limitations period was running);
Cornejo

v.

Lizarraga,

Case No.

1567821, at *3 (E.D. Cal. 2018)

2: 16-cv-2594

KJM AC P,

2018 WL

(petitioner's failure to document

any actions taken in pursuit of rights or lack of capacity to take
such actions demonstrated lack of reasonable diligence).
Finally, Petitioner asks the Court to conduct an evidentiary
hearing if not inclined to grant equitable tolling on the record
before the Court.

Because the record in this case is sufficiently

developed to resolve the
request

issues before the Court,

for an evidentiary hearing is denied.

10 - OPINION AND ORDER -

Petitioner's

See

Rhoades

v.

Henry,

638

F. 3d 1027,

1041

(9th Cir.

2011);

Lampert, 465 F.3d 964, 969 (9th Cir. 2006)
evidentiary hearing,

a

petitioner must

see

also Roy v.

(in order to merit an

first

make

"sufficient

allegations of diligence").
CONCLUSION

For these reasons, the Court DENIES the Petition for Writ of
Habeas Corpus

( ECF No.

1)

and DISMISSES this case.

The Court

DENIES a certificate of appealability as Petitioner has not made a
substantial showing of the denial of a constitutional right.
28

u.s.c.

§

2253 (c) (2).

IT IS SO ORDERED.
~
DATED this I)
day of August, 2019.

~.~

United States District Judge

11 - OPINION AND ORDER -

See