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United States District Court, S.D. California

September 28, 2005.

J.S. WOODFORD, Respondent.

The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge

Petitioner Bounthanom Na Didyavong ("petitioner"), a state prisoner appearing pro se, filed a petition for writ of habeas corpus challenging his conviction pursuant to 28 U.S.C. § 2254. Respondent filed a motion to dismiss the petition as untimely and petitioner filed an opposition. This Court issued an Order granting in part and denying in part respondent's motion to dismiss. The district court granted respondent's motion to dismiss on the violation of state law claim but denied respondent's motion to dismiss on all other claims. Petitioner filed a motion to stay and abeyance and a motion to annex and/or enlarge habeas petition ("petitioner's motions"). Pursuant to 28 U.S.C. § 636(b)(1) and CIVLR HC.2 of this District, the Honorable William McCurine, Jr., United States Magistrate Judge, submitted a Report and Recommendation ("Report"), recommending that petitioner's motions be denied. Having fully reviewed the matters presented, this Court ADOPTS the Report, DENIES petitioner's motion to annex and/or enlarge federal habeas corpus petition and DENIES petitioner's motion for stay and abeyance.


  Petitioner along with nearly 20 members of an Asian street gang assaulted David Dobson. Some members of the gang beat Dobson with a lead pipe, a phillips screwdriver and a miniature baseball bat. The remaining members formed a circle shielding the members who were beating Dobson. Dobson died a short time later. Petitioner was convicted by a jury of first degree murder in San Diego County Superior Court on February 7, 2001. He was sentenced to a prison term of twenty-five years to life. The California Court of Appeal affirmed petitioner's conviction on July 30, 2002. At this time, petitioner did not file a petition for review before the California Supreme Court.

  On March 18, 2003, petitioner filed a petition for writ of habeas corpus before the California Court of Appeal, which was subsequently denied on July 8, 2003. Petitioner filed a petition for writ of habeas corpus before the California Supreme Court on September 10, 2003. On November 3, 2003, petitioner filed a document entitled "Request to Amend and Clarify Pending Habeas Petition and/or Consolidate Clarified Federal Constitutional Claims in Order to Properly Exhaust State Court Remedies in Case No. S118914" along with a proposed amended petition in the California Supreme Court.

  The instant petition was filed on November 4, 2003. Respondent's motion to dismiss was filed on February 6, 2004. On February 27, 2004, petitioner filed an opposition to respondent's motion and a request to hold the petition in abeyance pending the California Supreme Court's ruling on his habeas petition which was filed on September 10, 2003. On February 8, 2005, petitioner filed a motion to annex and/or enlarge petition. Magistrate Judge McCurine's Report was filed on July 28, 2005. Petitioner filed his objections to the Report on August 26, 2005. No reply to petitioner's objections were filed.


  1. Standard of Review

  The district court's role in reviewing a Magistrate Judge's report and recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the district court "shall make de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or part, the findings or recommendation made by the magistrate [judge]." It is well settled, under Rule 72(b) of the Federal Rules of Civil Procedure, that a district court may adopt those parts of a Magistrate Judge's report to which no specific objection is made, provided they are not clearly erroneous. Thomas v. Arn, 474 U.S. 140, 153 (1985).

  2. Magistrate Judge's Findings

  The Report addresses petitioner's motions to include ten additional claims to his habeas petition. The Magistrate Judge found that all ten of petitioner's new claims were untimely under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), none of the claims related back to the date of the original pleading and petitioner's circumstances did not warrant equitable tolling. See Report at 8. In addition, the Magistrate Judge found petitioner's claims of ineffective assistance of counsel ("IAC") and delay resulting from his mental condition were not enough to excuse the procedural bar. As such, the Magistrate Judge determined petitioner's arguments were not enough to demonstrate cause and prejudice to excuse the default or show that a miscarriage of justice will occur if petitioner's new claims are not heard. See Id.

  3. Analysis

  A. Ineffective Assistance of Appellate Counsel

  Petitioner objects to the Magistrate Judge's finding of procedural default and contends he should be excused from the default as he was prejudiced by ineffective appellate counsel. See Obj. at 2. Petitioner argues that his appellate counsel was ineffective as she failed to investigate and raise on appeal his additional claims. See Id. The Report analyzed petitioner's IAC claim under Hasan v. Galaza, 254 F.3d 1150 (9th Cir. 2001). Hasan permits IAC claims only if the petitioner obtained facts in support of the IAC claim after completion of direct review. See Id. In the instant case, the Magistrate Judge concluded that petitioner was aware of the allegedly ineffective and prejudicial acts prior to completion of direct review. See Report at 10. Upon review of the record, this Court finds petitioner has failed to allege facts showing that the appellate attorney's decision not to raise additional issues was deficient performance or prejudiced him in any way or that there were additional facts that arose after his direct review that would support an IAC claim.

  B. Equitable Tolling

  The AEDPA establishes a one-year limitation period for the filing of federal habeas corpus petitions by a person in custody pursuant to a state court judgment. The limitation period shall run from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review . . ." 28 U.S.C. § 2244(d)(1)(A). The statute of limitations for filing for federal habeas review expired on December 23, 2004. Petitioner filed a motion to stay and abeyance on January 24, 2005 and a motion to annex and/or enlarge federal habeas corpus petition on February 8, 2005. Unless petitioner is entitled to equitable tolling, the ten additional claims asserted in plaintiff's motions will be untimely.

  Equitable tolling may be allowed in limited situations where the petitioner can establish "extraordinary circumstances" beyond his control which made it impossible to file a timely petition. Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1977), overruled in part on other grounds by Calderon v. United States Dist. Court, 163 F.3d 530, 540 (9th Cir. 1998). "Indeed, the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule." Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (internal citations omitted).

  The Report applied the Beeler test to the instant case and found petitioner did not meet the high standard necessary to trigger equitable tolling. In the alternative, the Report invites the petitioner to question the Magistrate Judge's analysis of equitable tolling in the form of an objection. As allowed, petitioner raises an initial objection claiming that equitable tolling should apply because (1) he is mentally deficient and (2) he did not receive his case file from his trial attorney until April 2004. See Obj. at 7-9.

  A. Mental Deficiencies as Cause for Equitable Tolling

  Mental incompetency may equitably toll AEDPA's statue of limitations if it constitutes an extraordinary circumstance beyond prisoners control if the petitioner can show the mental illness prevented him from managing his affairs and from understanding his legal rights and acting upon them. See Ellison v. Northwest Airliens, Inc, 938 F. Supp. 1503, 1513 (D. Haw. 1996) citing Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996). The Magistrate Judge determined petitioner was able to timely file his initial habeas petition and asserted claims in his initial state habeas petition, all while receiving treatment for his mental infirmities. The Magistrate Judge found that these acts indicated his awareness of his rights before the AEDPA's statute of limitations period expired. Report at 13. After a review of record, this Court finds petitioner has consistently demonstrated that he is capable of adhering to the guidelines associated with bringing a habeas claim despite his mental condition and has not proven that his mental illness is cause for deviation from the law.

  B. Attorney Misconduct as Cause for Equitable Tolling

  Generally, attorney negligence does not constitute extraordinary circumstances for purposes of equitable tolling. See Miranda 292 F.3d 1066 (counsel's letter to the petitioner with the incorrect deadline for filing a habeas petition was not sufficient for equitable tolling); Frye v. Hickman, 273 F.3d 1144 (9th Cir. 2001) (limitations period not equitably tolled by counsel's miscalculation of tolling period that resulted in an untimely petition). However, the Ninth Circuit has held that an attorney's sufficiently egregious misconduct may constitute extraordinary circumstances for purposes of tolling. Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003).*fn1 As an initial objection, petitioner maintains his trial counsel negligently withheld legal documents essential to the filing of his motions and that petitioner did not gain access to those legal documents until April, 2004. As a result of the tardy documents petitioner missed the filing deadline. Petitioner's contention that his trial counsel failed to forward his legal file, alone, does not rise to the level of egregious behavior that would entitle him to equitable tolling. Furthermore, the April receipt date still provided petitioner with eight months to review his legal documents and file his motions on or before the December 24, 2004 deadline. Upon review of the record this Court finds the petitioner had ample time to review his legal documents and timely file the ten additional claims asserted in petitioner's motions.

  C. Additional Objections

  The remainder of petitioner's objections appear to be arguments supporting his filing of a petition in the court of appeal. These arguments are not addressing any specific finding of fact or law contained in the Report and there are no additional matters contained in the Report that are "clearly erroneous or contrary to law." See Thomas at 149. Accordingly, petitioner's objections to his appellate habeas petition are OVERRULED. This Court's independent review of the record, the pleadings presented by the parties and the Report, reveal that the Magistrate Judge provided a thorough analysis of the motions to annex and motion to stay as applied to petitioner.

  This Court agrees with the Magistrate Judge's assessment. Petitioner provides no feasible argument to rebut the analysis presented by the Magistrate Judge. As the Magistrate Judge found, and contrary to petitioner's contention, the AEDPA's statute of limitations applies to petitioner. Therefore, petitioner's objections to the Magistrate Judge's Report are OVERRULED and the Magistrate Judge's findings and conclusions are ADOPTED in their entirety.


  For the reasons set forth above, IT IS HEREBY ORDERED that the Magistrate Judge's Report is ADOPTED in its entirety and petitioner's objections are OVERRULED, petitioner's motion to annex and/or enlarge federal habeas corpus petition is DENIED and petitioner's motion for stay and abeyance is DENIED.


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