Douglas Melvin Lehto v. Connie Gipson, No. 2:2013cv01654 - Document 9 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Judge Valerie Baker Fairbank: (See document for details.) IT THEREFORE IS ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice. (rla)
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1 2 3 0 ¢ I HEREBVCERTIFYTHATTHIS DOCUMENT WAS SERVED B,'L. - 1 FIRST CLASS MAIL POSTAGE PREPAID, TO-AU B8t1Nm "\'<...-\- ¢.,~ ~R PfiiHIESl AT THEIR RESPECTIVE MOST RECENT ADDRESS OF RECORD IN THIS ACTION ON THIS DATE. DATED: (o ' FILED ¢ SOUTHERN DIVISION CLERK, U.S DISTRICT COURl '2--, ' \3 4 ~ DEPUTY CLERK 5 27 2013 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DOUGLAS MELVIN LEHTO, 12 13 14 Case No. CV 13-1654-VBF (JPR) Petitioner, MEMORANDUM OPINION AND ORDER DENYING PETITION AND DISMISSING ACTION WITH PREJUDICE vs. CONNIE GIPSON, Warden, 15 Respondent. 16 17 BACKGROUND 18 On February 28, 2013, Petitioner constructively filed a 19 Petition for Writ of Habeas Corpus by a Person in State Custody. 20 At the same time, he submitted an "Election Regarding Consent to 21 Proceed Before a United States Magistrate Judge" form, indicating 22 that he voluntarily consented to "have a United States Magistrate 23 Judge conduct all further proceedings in this case, decide all 24 dispositive and non-dispositive matters, and order the entry of 25 final judgment." 26 February 2010 conviction in Los Angeles County Superior Court for 27 elder abuse and a related charge. 28 raises an ineffective-assistance-of-counsel claim based on his The Petition purports to challenge Petitioner's 1 (Pet. at 2.) Petitioner 1 trial lawyer's alleged bad advice to him concerning a plea offer. 2 3 (See generally Pet. Attach.) Petitioner states that he did not appeal his conviction. 4 (Pet. at 2, 3.) 5 Courts' Case Information website, however, reveals that 6 Petitioner actually voluntarily dismissed his appeal after it had 7 been filed. 8 California Supreme Court habeas petition (see Pet. at 3), he 9 attached to the Petition a minute order from the Los Angeles 10 The Court's review of the California Appellate Although Petitioner acknowledges filing only a County Superior Court denying his claim on habeas review because 11 [t] he facts presented do not justify the Court's granting 12 the 13 attorney he was innocent. 14 trial 15 counsel. Defendant's does not petition. amount The Defendant told his The attorney's advice to go to to ineffective assistance of 16 The minute order states that Petitioner filed his state habeas 17 petition on September 14, 2012. 18 According to Petitioner, he was convicted and sentenced on 19 February 19, 2010. 20 appeal on October 5, 2010, according to the California Appellate 21 Courts' Case Information website. 22 became final 10 days later, on October 15, 2010. 23 Unknown, No. CV 11-7511-PA (PJW), 2012 WL 1616426, at *2 (C.D. 24 Cal. Apr. 4, 2012) 25 conviction becomes final at latest 10 days later, when time for 26 filing petition for review in California Supreme Court expires) , 27 accepted by 2012 WL 1615232 (C.D. Cal. May 9, 2012). 28 (Pet. at 2.) He voluntarily dismissed his His conviction therefore See Harris v. (when defendant voluntarily dismisses appeal, On March 21, 2013, because the Petition on its face appeared 2 1 to be untimely, the Court ordered Petitioner to show cause why it 2 should not be dismissed with prejudice because he had failed to 3 comply with the one-year statute of limitations under 28 U.S.C. 4 § 5 Petitioner filed a response. 6 his claim that his trial lawyer gave him bad advice concerning a 7 plea offer and adds that she performed deficiently at trial by 8 not calling any witnesses or challenging the state's evidence. 9 (Resp. at 1-2.) 2244(d). On June 19, 2013, after an extension of time, He generally argues the merits of He also asserts that his appellate counsel 10 erroneously convinced him "that I had no grounds to appeal," 11 including on ineffective assistance of trial counsel, and that if 12 he did appeal he ran the risk of getting a longer sentence 13 because he had mistakenly been sentenced to a lighter term than 14 required. 15 explanation, that "she did not express the collateral damage I 16 would face upon signing the appeal waiver." 17 seems to argue that the alleged ineffectiveness of his two 18 counsel entitle him to both equitable tolling (id. at 5) and a 19 later trigger date under 28 U.S.C. 20 counsel were provided by the state and therefore constitute a 21 "state-created impediment" to the timely filing of his Petition 22 (id. at 4}. (Id. at 2-3.) 23 24 25 He further asserts, without any § (Id. at 3.) He 2244(d) (1} (B), because DISCUSSION I. The Court's Jurisdiction As an initial matter, the undersigned Magistrate Judge has 26 jurisdiction to deny Petitioner's Petition and dismiss this 27 action with prejudice. 28 magistrate judge "may conduct any or all proceedings in a jury or "Upon the consent of the parties," a 3 1 nonjury civil matter and order the entry of judgment in the 2 case." 3 "party" to the proceeding and has consented to the jurisdiction 4 5 6 of the undersigned U.S. Magistrate Judge; Respondent has not yet been served with the Petition and therefore is not yet a party to 7 Brenneke, 551 F.3d 1132, 1135 (9th Cir. 2009) 8 is without personal jurisdiction over a defendant unless the 9 defendant has been served in accordance with Fed. R. Civ. P. 4." 28 U.S.C. § 636(c) (1). this action. Here, Petitioner is the only See, e.g., Travelers Cas. & Sur. Co. of Am. v. ("A federal court 10 (internal quotation marks omitted)). 11 consented pursuant to§ 636(c) (1). 12 F.3d 1113, 1119-21 (9th Cir. 2012) 13 had jurisdiction to sua sponte dismiss prisoner's lawsuit under 14 42 U.S.C. § 1983 for failure to state claim because prisoner 15 consented and was only party to action); United States v. Real 16 Prop., 135 F.3d 1312, 1317 (9th Cir. 1998) 17 magistrate judge had jurisdiction to enter default judgment in in 18 rem forfeiture action even though property owner had not 19 consented because § 636(c) (1) requires consent only of "parties" 20 and property owner, having failed to comply with applicable 21 filing requirements, was not "party"); Carter v. Valenzuela, No. 22 CV 12-05184 SS, 2012 WL 2710876, at *1 n.3 (C.D. Cal. July 9, 23 2012) 24 to deny successive habeas petition when petitioner had consented 25 and respondent had not yet been served with petition) . 26 Thus, all parties have See Wilhelm v. Rotman, 680 (holding that magistrate judge (holding that (after Wilhelm, finding that magistrate judge had authority Moreover, a district court has the authority to raise the 27 statute-of-limitations issue sua sponte when untimeliness is 28 obvious on the face of a petition; it may summarily dismiss the 4 1 petition on that ground pursuant to Rule 4 of the Rules Governing 2 § 3 gives the petitioner adequate notice and an opportunity to 4 respond. 5 Here, the Court gave Petitioner notice that his Petition appeared 6 to be untimely and an opportunity to respond, which he has done. 2254 Cases in the U.S. District Courts, as long as the court 7 Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001). Accordingly, this Court has the authority to deny 8 Petitioner's Petition and dismiss this action with prejudice. 9 10 11 12 II. The Petition Is Not Timely Under the Antiterrorism and Effective Death Penalty Act of 1996 ( "AEDPA") , see 28 U.S. C. (1) § 2244 (d) : A 1-year period of limitation shall apply to an 13 application for a writ of habeas corpus by a person in 14 custody pursuant to the judgment of a State court. 15 limitation period shall run from the latest of-- 16 (A) The the date on which the judgment became 17 final by the conclusion of direct review or the 18 expiration of the time for seeking such review; 19 (B) the date on which the impediment to 20 filing an application created by State action in 21 violation of the Constitution or laws of the United 22 States is removed, 23 from filing by such State action; 24 (C) the if the applicant was prevented date on which 25 right 26 Supreme 27 recognized 28 retroactively applicable asserted Court, by was if the initially the the right Supreme 5 to constitutional recognized has Court cases on by the been newly and made collateral 1 review; or 2 (D) the date on which the factual predicate 3 of the claim or claims presented could have been 4 discovered through the exercise of due diligence. 5 (2) The time during which a properly filed 6 application for State post-conviction or other collateral 7 review with respect to the pertinent judgment or claim is 8 pending 9 limitation under this subsection. 10 shall not be counted toward any period of Under certain circumstances, a habeas petitioner may be 11 entitled to equitable tolling of the limitation period, see 12 Holland v. Florida, 560 U.S. 13 Ed. 2d 130 (2010), but only if he shows that (1) he has been 130 S. Ct. 2549, 2560, 177 L. 14 pursuing his rights diligently and (2) "some extraordinary 15 circumstance stood in his way," Pace v. DiGuglielmo, 544 U.S. 16 408, 418, 125 S. Ct. 1807, 1814, 161 L. Ed. 2d 669 (2005). F. 17 ,,, ,., . " Petitioner does not dispute that his conviction became final 18 on October 15, 2010. 19 recitation of the law in the OSC. 20 filed his federal Petition on February 28, 2013, nearly a year 21 and a half after the presumptive expiration of the limitation 22 period under§ 2244(d) (1) (A), on October 15, 2011. 23 v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) 24 tolling period begins day after triggering event) . 25 Nor does he argue with the Court's Petitioner constructively See Patterson (holding that Thus, the Petition is time barred unless Petitioner can show 26 entitlement to statutory or equitable tolling or a later trigger 27 date. 28 He has failed to do so. In the Petition, Petitioner seemed to contend that he was 6 1 entitled to a later trigger date or equitable tolling because he 2 3 could not have known of his claim until the U.S. Supreme Court's 4 1376, 182 L. Ed. 2d 398 (2012). 5 Circuit has already held that Lafler did not announce a new rule. 6 See Buenrostro v. United States, 697 F.3d 1137, 1140 (9th Cir. 7 2012); Baker v. Ryan, 497 F. App'x 771, 773 (9th Cir. 2012), 8 9 cert. denied, 2013 WL 2111058 (U.S. June 24, 2013); Hunt v. "watershed" ruling in Lafler v. Cooper, 566 U.S. (Pet. Attach.) , 132 S. Ct. But the Ninth Gibson, No. SA CV 12-1859-RGK (VBK), 2013 WL 990761, at *3 (C.D. 10 Cal. Feb. 5, 2013) 11 finding petition untimely), accepted by 2013 WL 990733 (C.D. Cal. 12 Mar. 12, 2013). 13 established," the Supreme Court could not have granted relief in 14 Lafler. (applying Buenrostro in§ 2244(d) context and Indeed, had the law not already been "clearly See 28 U.S.C. § 2254(d) (1). 15 In his response to the OSC, he has modified his argument 16 somewhat, claiming that he is entitled to a later trigger date or 17 equitable tolling because his court-appointed counsel gave him 18 bad advice and performed deficiently, citing Martinez v. Ryan, 19 566 U.S. 20 that when state bars raising claim of ineffective assistance of 21 counsel on direct appeal, petitioner's procedural default may be 22 excused if he had no counsel during collateral proceedings or 23 counsel was ineffective) . 24 in the Petition relates to ineffective assistance of counsel at 25 trial, concerning actions (or inactions) of which he was 26 necessarily aware at the time. 27 "collateral damage" and certain "consequences" of dropping his 28 appeal of which he was unaware at the time, he never explains , 132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012) (holding But the only claim Petitioner raises Although he alludes to 7 1 what those were or how they rendered him unable to earlier file 2 3 nothing to say on whether the Petition was timely filed. 4 Ferguson v. Bacca, No. 3:12-cv-00619-HDM-WGC, 2013 WL 2285080, at 5 *1 (D. Nev. May 22, 2013) 6 Martinez because it is "inapposite" to question of timeliness, 7 "as petitioner's claims are not defaulted in the classic sense"). 8 And Petitioner's similar claim that appellate counsel's 9 his Petition. Martinez is thus inapplicable here, because it has See (rejecting petitioner's reliance on allegedly deficient advice constituted a State-created 10 "impediment" under § 2244 (d) (1) (B), thereby justifying a later 11 trigger date (or equitable tolling), is contrary to law and 12 reason. 13 higher bar than that for equitable tolling." 14 571 F.3d 993, 1000 (9th Cir. 2009). 15 equitable tolling, the Supreme Court has rejected the notion that 16 an appointed counsel's actions are somehow attributable to the 17 State simply because the State has undertaken to provide counsel. 18 See Lawrence v. Florida, 549 U.S. 327, 337, 127 S. Ct. 1079, 19 1086, 166 L. Ed. 2d 924 (2007) 20 postconviction counsel that "a State's effort to assist prisoners 21 does not make the State accountable for [Petitioner's] A claim under subsection (d) (1) (B) "must satisfy a far Ramirez v. Yates, And yet in the context of (holding as to appointed 22 delay . . 23 with . 24 statute of limitations"); see also Leyva v. Yates, CV 07-8116-PA 25 (JEM), 2010 WL 2384933, at *2 n.2 (C.D. Cal. May 7, 2010), 26 27 accepted by 2010 WL 2522705 (C.D. Cal. June 9, 2010) meritless petitioner's contention that appellate counsel's 28 decisions constituted "state action" triggering§ 2244(d) (1) (B) . . . It would be perverse indeed if providing prisoners . counsel deprived States of the benefit of the AEDPA 8 (finding 1 and citing cases in agreement). 2 to a later trigger date or equitable tolling. 3 Thus, Petitioner is not entitled Finally, no basis for statutory tolling under§ 2244(d} (2) 4 5 6 petition until September 14, 2012, after the AEDPA limitation 7 820, 823 (9th Cir. 2003) 8 cannot be "reinitiated" if it ended before state habeas petition 9 filed) . 10 exists here, because Petitioner did not file his first habeas period had already expired. See Ferguson v. Palmateer, 321 F.3d (holding that AEDPA limitation period Because Petitioner has offered no valid justification for 11 the delay in filing his federal Petition, he is not entitled to 12 any tolling or later trigger date sufficient to render the 13 Petition timely. 14 15 16 ORDER IT THEREFORE IS ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice. 17 18 19 DATED: June 27, 2013 20 JUDGE 21 22 23 24 25 26 27 28 9
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