United States District Court, S.D. California
September 28, 2005.
BOUNTHANOM NA DIDYAVONG, Petitioner,
J.S. WOODFORD, Respondent.
The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; AND
OVERRULING PETITIONER'S OBJECTIONS
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.
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
CONCLUSION AND ORDER
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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