The opinion of the court was delivered by: Hon. Gonzalo P. Curiel United States District Judge
ORDER (1) ADOPTING IN PART AND DECLINING TO ADOPT IN PART REPORT & RECOMMENDATION, AND (2) REMANDING TO PROCEDURAL DEFAULT MAGISTRATE JUDGE TO ADDRESS
On May 3, 2010, Petitioner Donald Eugene Mitchell (Petitioner),
proceeding pro se, filed a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 in which he alleges ineffective assistance of
counsel, and denial of a mental competency hearing.*fn1
[ECF No. 1.] On August 3, 2011, Respondent filed a Motion to
Dismiss asserting the Petition is time barred pursuant to 28 U.S.C. §
2244(d). [ECF No. 23.] On September 15, 2011, the Court granted
Petitioner's request for appointment of counsel and appointed CJA
panel attorney Kurt David Hermansen. [ECF No. 35.] On November 11,
2011, Petitioner filed a Response in Opposition to the Motion to
Dismiss. [ECF No. 41.] Respondent filed a Reply on November 21, 2011,
and Petitioner filed a Response to the Reply on November 26, 2011.
[ECF Nos. 42-43.]
The Court referred the matter to Magistrate Judge Louisa L. Porter, who issued a Report and Recommendation ("R & R") recommending that Respondent's Motion to Dismiss be denied, finding that Petitioner was entitled to equitable tolling and that the claims were not procedurally barred [ECF No. 46.] On February 17, 2011, Respondent filed Objections. [ECF No. 47.]
The matter being fully briefed, the Court decides the matter on the papers submitted and without oral argument. See Civ. L.R. 7.1.(d.1). For the reasons outlined below, the Court ADOPTS the Report in part and DECLINES to adopt the Report in part, and REMANDS the case for further briefing as outlined below.
On April 18, 1997, a jury convicted Petitioner of false imprisonment by violence. (Lodgment 1 at 63.) The trial court subsequently determined that Petitioner had previously been convicted of three crimes that qualified him for sentencing under the Three Strikes law and had served a prison term. The court sentenced Petitioner to imprisonment for twenty-five years to life. (Id. at 112.)
On December 23, 1997, Petitioner appealed to the California Court of Appeal, contending (1) that the trial court abused its discretion in precluding defense impeachment of the victim with evidence of a prior misdemeanor conviction for prostitution, and (2) the sentence under the Three Strike laws was cruel and unusual. (Lodgment 3.) On July 24, 1998, the appellate court denied the appeal. (Lodgment 6.)
On August 7, 1998, Petitioner filed a petition for review in the California Supreme Court challenging his sentence. (Lodgment 7.) On September 30, 1998, the California Supreme Court denied review. (Lodgment 8.) Petitioner did not seek certiorari from the United States Supreme Court.
On October 16, 2009, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (Lodgment 9.) In the petition, Petitioner claimed his defense counsel was ineffective for failing to investigate the victim's record of prostitution or to investigate Petitioner's mental competence. (Id. at 3) On April 14, 2010, the California Supreme Court denied the petition with a citation to In re Robbins, 18 Cal.4th 770, 780 (1998). (Lodgment 10.)
Petitioner filed the current Petition on May 3, 2010, in which he alleges ineffective assistance of counsel and denial of a mental competency hearing. [ECF No. 1.] Respondent filed a Motion to Dismiss on August 17, 2010, contending that the claims were untimely and did not qualify for statutory or equitable tolling. [ECF No. 9.] The Court issued a Report and Recommendation on January 19, 2011, which made the following findings: (1) Petitioner's conviction became final on December 29, 1998; (2) Petitioner had one year from that date to file a timely federal habeas petition, unless tolling applied; and (3) there was no basis for statutory tolling. [ECF No. 13.] However, the Court concluded that the record was not sufficiently developed to determine whether equitable tolling applied, and so recommended that Respondent expand the record by lodging documents detailing Petitioner's mental condition. [Id.] On February 16, 2011, District Judge John A. Houston adopted the Report and Recommendation in full. [ECF No. 14.]
Respondent lodged several medical and psychiatric records with the Court and subsequently renewed its Motion to Dismiss, arguing that Petitioner does not qualify for equitable tolling sufficient to excuse the untimeliness of his Petition, and that the claims are procedurally defaulted. [ECF No. 23.] On September 15, 2011, given the evidence of Petitioner's mental impairment, the Court appointed CJA panel attorney Kurt David Hermansen to represent Petitioner. [ECF No. 35.] On September 16, 2011, Petitioner's jailhouse "lawyer" filed a Response in Opposition to Respondent's Motion to Dismiss. [ECF No. 36.] On November 7, 2011, Petitioner's counsel filed a First Amended Response in Opposition to the Motion to Dismiss asserting Petitioner is entitled to equitable tolling and that the Petition is not procedurally defaulted. [ECF No. 40.] On November 21, 2011, Respondent filed a Reply. [ECF No. 42.] Petitioner filed his Response to the Reply on November 26, 2011. [ECF No. 43.]
On February 3, 2012, Magistrate Judge Porter issued the Report recommending the Court grant Petitioner equitable tolling sufficient to make the Petition timely, and that the claims were not procedurally defaulted. [ECF No. 46.] Respondent filed Objections on February 23, 2012. [ECF No. 47.]
The duties of the district court in connection with a magistrate judge's report and recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court "must make a de novo determination of those portions of the report ... to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C); see ...