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Carl Thompson v. Tim Virga

May 29, 2012

CARL THOMPSON,
PETITIONER,
v.
TIM VIRGA, AND KAMALA HARRIS,
RESPONDENTS.



The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge United States District Court

*REDACTED* MEMORANDUM-

DECISION AND ORDER GRANTING RESPONDENTS' MOTION TO DISMISS (Dkt. No. 8.)

Carl Thompson, a prisoner proceeding pro se, filed a petition for a writ of habeas corpus on November 21, 2011. (Dkt. No. 1.) Currently pending before this Court is Respondents' motion to dismiss. (Dkt. No. 8.) For the reasons set forth below, Respondents' motion is GRANTED.

I. FACTS

Respondents are moving to dismiss on the grounds that the petition is untimely. (Dkt. No. 8-1 at 7.*fn1 ) Therefore, the underlying facts in this matter have little significance at this juncture. Briefly, Petitioner was charged and convicted of attempted murder with a police officer victim allegation, attempted murder of a public official, and assault with a deadly weapon. (Lodgment 1 at 130-133.) Petitioner claims he was denied effective assistance of trial counsel during a pretrial mental competency hearing. (Dkt. No. 1 at 6.)

II. PROCEDURAL HISTORY

A. Trial and Conviction

On April 28, 2004, a jury convicted Petitioner of attempted murder with a police officer victim allegation (Cal. Pen. Code §§ 187(a) and 664), attempted murder of a public official (Cal. Pen. Code § 217.1(b)), and assault with a deadly weapon (Cal. Pen. Code § 245(a)(1)). (Lodgment 1 at 130-33.) The jury also found that Petitioner had a prior felony conviction within the meaning of Cal. Pen. Code §§ 667(a), 667(b) through (i), 668, and 1170.12. (Lodgment 1 at 134.) Petitioner was sentenced on May 26, 2004, and received thirty-nine years to life in prison. Id. at 135.

B. Direct Appeal

Petitioner subsequently filed an appeal of his conviction with the California Court of Appeal, which was received on October 4, 2004. (Lodgment 2.) The appeal stated several grounds for relief, but did not include the ineffective assistance of counsel claim asserted in the instant petition. Id. On March 10, 2005, the Court of Appeal affirmed in part and reversed in part the conviction.*fn2 (Lodgment 6.) Petitioner filed a petition for review with the California Supreme Court, which was received on April 13, 2005. (Lodgment 8.) The petition for review was denied on June 15, 2005, without prejudice to the claim Petitioner made pursuant to Blakely v. Washington, 542 U.S. 296 (2004).*fn3 (Lodgment 9.) Petitioner's conviction became final on September 13, 2005, which was the date his right to seek relief from the United States Supreme Court expired. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).

C. State Collateral Review

Prior to his conviction becoming final, Petitioner filed a petition for a writ of habeas corpus with the California Court of Appeal on October 11, 2004. (Lodgment 5.) He asserted that he was unable to participate in his defense at trial due to mental incapacitation. Id. at 9. This petition was denied on March 10, 2005. (Lodgment 7.) The Court of Appeal found that Petitioner failed to make a prima facie showing that he was not competent to stand trial. Id. Petitioner did not raise a claim of ineffective assistance of counsel in this 2004 petition.

Approximately four years later, on February 1, 2009, Petitioner filed another petition for a writ of habeas corpus with the Court of Appeal, again alleging that he was mentally incapacitated during his trial. (Lodgment 10.) He also alleged that he received ineffective assistance of counsel at his competency hearing. Id. This petition was cancelled by the Court of Appeal and sent to the Superior Court in San Diego, where it was accepted and assigned case number HC19552. (Lodgments 11 and 12.) Petitioner filed an addendum to this petition on February 18, 2009. (Lodgment 13.) This petition was denied on April 17, 2009.*fn4 (Lodgment 15 at 2.)

Petitioner filed a second habeas petition in the Superior Court in San Diego, under the same case number, on January 26, 2011. (Lodgment 14.) He again claimed ineffective assistance of counsel at his mental competency hearing at trial. Id. at 3. This second petition was denied on March 11, 2011. (Lodgment 15.) The Court noted that it had previously rejected his claims, and relied on In re Clark, 5 Cal.4th 750, 767, 797 (1993) for the proposition that it would not consider repeated applications for previously rejected claims. Id. at 2. The Court also stated that Petitioner failed to "state a prima facie statement of facts which would entitle him to habeas corpus relief," and that there was no evidence to support his contention that his counsel's performance was deficient. Id. at 3.

On March 31, 2011, Petitioner filed a petition for a writ of habeas corpus with the California Court of Appeal, asserting ineffective assistance of trial counsel at his competency hearing. (Lodgment 16 at 3.) That court found the petition procedurally barred as successive and untimely. (Lodgment 17 at 2.) The court also noted that, even if the merits were evaluated, Petitioner did not establish that he was entitled to habeas relief. Id.

On June 3, 2011, Petitioner filed a petition for a writ of habeas corpus with the California Supreme Court, again claiming ineffective assistance of trial counsel at his competency hearing. (Lodgment 18.) This petition was denied on October 26, 2011. (Lodgment 19.*fn5 ) In denying the petition, the California Supreme Court cited In re Robbins, 18 Cal.4th 770, 780 (1998), a citation that indicates the court found the petition untimely. See Thorson v. Palmer, 479 F.3d 643, 645 (9th Cir. 2007).

D. The Instant Action

Petitioner filed the instant petition on November 21, 2011. (Dkt. No. 1.) Shortly thereafter, he filed a "Declaration in Support of Motion for Appointment of Counsel and Extension of Time." (Dkt. No. 5.) In its Order of January 12, 2012, this Court construed this Declaration as a motion to appoint counsel. (Dkt. No. 10.) In that Order, this Court requested additional information from the Petitioner to support his assertion that he required counsel because he was mentally incompetent. Id. at 3-4. The Order also directed Respondents to file a response to the additional information, and to include the results of an independent investigation into Petitioner's competence. Id. at 4. On the same day this Court issued the Order, Respondents filed the pending motion to dismiss, arguing that the petition is untimely. (Dkt. No. 8.)

On February 3, 2012, Respondents filed the results of their investigation, and lodged Petitioner's prison medical records with the Court. (Dkt. Nos. 11, 13.) Petitioner filed his additional information on March 10, 2012. (Dkt. No. 18.) Based upon the parties' submissions, this Court concluded that Petitioner was capable of representing himself in this proceeding, and denied the motion to appoint counsel. (Dkt. Nos. 20 and 21.) In that decision, Petitioner was directed to respond to Respondents' motion to dismiss. Id. at 5.

Petitioner filed a response on April 16, 2012, essentially arguing that he is entitled to equitable tolling of the statute of limitations because he was mentally incompetent during the time period in question. (Dkt. No. 22.) He also states that he was in the process of obtaining records from the Social Security Administration to establish his diagnosis as a paranoid schizophrenic. Id. at 2.

In light of Petitioner's response, and his medical records filed with the Court subsequent to the filing of Respondents' motion to dismiss, this Court directed Respondents to file a reply. (Dkt. No. ...


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