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Michael Y. Birman v. the People of the State of California

April 16, 2013


The opinion of the court was delivered by: Stephen V. Wilson United States District Judge


Petitioner filed a habeas petition, pursuant to 28 U.S.C. § 2254, on May 3, 2012 ("Petition"). Petitioner seeks to challenge a 1993 murder conviction he sustained in the Los Angeles Superior Court, which resulted in a sentence of life without parole (the "1993 Conviction").*fn1

Petitioner alleges that he appealed the 1993 Conviction, and the California Supreme Court denied review on February 2, 1995. (Petition at 2-3.) Petitioner further alleges that he did not again challenge the 1993 Conviction in the state court for over 16 years, namely, until September 19, 2011, when he filed a habeas petition in the California Supreme Court (Case No. S196631), in which he raised the claims now alleged as Grounds One through Three in the instant Petition. (Id. at 3-5.) Petitioner admits that he has not raised Ground Four in any state court proceeding. (Id. at 6.)


Grounds One through Three of the Petition are based on the same document, which Petitioner characterizes as "new evidence." Specifically, Petitioner alleges that, in late 2002, he "discovered" a July 9, 1992 letter written by the prosecutor at his trial to a member of the Interstate Parole Unit, which related to a prosecution witness at Petitioner's trial (the "1992 Letter"). Petitioner became aware of the 1992 Letter, because it was faxed from the California Department of Corrections to his attorney on November 25, 2002. (Petition, attached Memorandum ("Pet. Mem.") at 1 and Ex. 1; see also Petition at 6 ("new evidence discover[ed] 7 years after appeal [which ended in 1995].")

By Grounds One and Two, Petitioner asserts that the 1992 Letter proves that the prosecutor and the subject witness lied at trial regarding the extent of prosecutorial promises made to the witness. (Petition at 5; Pet. Mem. at 1-2.) Ground Three simply states: "New evidence (attd letter)." (Petition at 5.) Ground Three, thus, does not plead a separate, cognizable claim on its own and simply indicates the factual basis on which Grounds One and Two rest.

Ground Four of the Petition alleges that Petitioner was abandoned by his attorney in post-conviction proceedings and references a state court civil lawsuit Petitioner brought against that attorney (discussed infra). (Petition at 6.) Petitioner alleges that he hired Attorney Dana M. Cole ("Cole"), in February 1997, to pursue federal post-conviction relief "all the way to the U.S. Supreme Court," but Cole failed to do so and concealed from Petitioner the fact that he had not done so. (Pet. Mem. at 1.)


On June 8, 2012, United States Magistrate Judge Margaret A. Nagle issued an Order To Show Cause Re: Dismissal For Untimeliness ("OSC"). The OSC advised Petitioner that the Petition fails to name an appropriate respondent, in violation of Rule 2 of the Rules Governing Section 2254 Cases in the United States District Courts. The OSC also advised Petitioner that the Petition is "mixed," and thus subject to dismissal, because Petitioner admits that he has not exhausted Ground Four. (Petition at 6.)*fn2

Magistrate Judge Nagle observed that the above defects could be corrected but concluded nonetheless that leave to pursue such corrective steps is not warranted, because the Petition, on its face, is substantially untimely.*fn3 The OSC explained, in detail, why the Petition is untimely, and it directed Petitioner to file a response to the OSC by no later than July 2, 2012, stating whether he concedes or disputes that this action is untimely. The OSC expressly cautioned Petitioner that, if he "disputes that this action is untimely, he must explain clearly and in detail why it is not, and provide any available competent evidence that establishes the timeliness of this action." (OSC at 10.)

Petitioner thereafter requested, and was granted, an extension of time to respond to the OSC. On August 3, 2012, Petitioner filed his Response to the OSC ("Response"). The Response purports to be made under penalty of perjury but does not contain any documentary support. Petitioner asserts that this action should be found timely, and he appears to rely on the following assertions:

1. Petitioner is an Israeli citizen who speaks very little English and has very little understanding of the English language. (Response at 1.)

2. Petitioner suffers from brain damage, because he was shot in the head. (Response at 1.)

3. Petitioner has schizophrenia "and other psychosis." He has suffered from this since early in life, although he was just recently diagnosed. Petitioner's schizophrenia inhibits and reduces his ability to carry out tasks and causes abnormal thoughts, feelings, and behavior. (Response at 2.)

4. Petitioner has been abandoned by the attorney who represented him in post-conviction proceedings. (Response ...

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