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Lehto v. Gipson

United States District Court, Ninth Circuit

June 27, 2013

CONNIE GIPSON, Warden, Respondent.


JEAN ROSENBLUTH, Magistrate Judge.


On February 28, 2013, Petitioner constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody. At the same time, he submitted an "Election Regarding Consent to Proceed Before a United States Magistrate Judge" form, indicating that he voluntarily consented to "have a United States Magistrate Judge conduct all further proceedings in this case, decide all dispositive and non-dispositive matters, and order the entry of final judgment." The Petition purports to challenge Petitioner's February 2010 conviction in Los Angeles County Superior Court for elder abuse and a related charge. (Pet. at 2.) Petitioner raises an ineffective-assistance-of-counsel claim based on his trial lawyer's alleged bad advice to him concerning a plea offer. (See generally Pet. Attach.)

Petitioner states that he did not appeal his conviction. (Pet. at 2, 3.) The Court's review of the California Appellate Courts' Case Information website, however, reveals that Petitioner actually voluntarily dismissed his appeal after it had been filed. Although Petitioner acknowledges filing only a California Supreme Court habeas petition (see Pet. at 3), he attached to the Petition a minute order from the Los Angeles County Superior Court denying his claim on habeas review because

[t] he facts presented do not justify the Court's granting the Defendant's petition. The Defendant told his attorney he was innocent. The attorney's advice to go to trial does not amount to ineffective assistance of counsel.

The minute order states that Petitioner filed his state habeas petition on September 14, 2012.

According to Petitioner, he was convicted and sentenced on February 19, 2010. (Pet. at 2.) He voluntarily dismissed his appeal on October 5, 2010, according to the California Appellate Courts' Case Information website. His conviction therefore became final 10 days later, on October 15, 2010. See Harris v. Unknown, No. CV 11-7511-PA (PJW), 2012 WL 1616426, at *2 (C.D. Cal. Apr. 4, 2012) (when defendant voluntarily dismisses appeal, conviction becomes final at latest 10 days later, when time for filing petition for review in California Supreme Court expires), accepted by 2012 WL 1615232 (C.D. Cal. May 9, 2012).

On March 21, 2013, because the Petition on its face appeared to be untimely, the Court ordered Petitioner to show cause why it should not be dismissed with prejudice because he had failed to comply with the one-year statute of limitations under 28 U.S.C. § 2244(d). On June 19, 2013, after an extension of time, Petitioner filed a response. He generally argues the merits of his claim that his trial lawyer gave him bad advice concerning a plea offer and adds that she performed deficiently at trial by not calling any witnesses or challenging the state's evidence. (Resp. at 1-2.) He also asserts that his appellate counsel erroneously convinced him "that I had no grounds to appeal, " including on ineffective assistance of trial counsel, and that if he did appeal he ran the risk of getting a longer sentence because he had mistakenly been sentenced to a lighter term than required. (Id. at 2-3.) He further asserts, without any explanation, that "she did not express the collateral damage I would face upon signing the appeal waiver." (Id. at 3.) He seems to argue that the alleged ineffectiveness of his two counsel entitle him to both equitable tolling (id. at 5) and a later trigger date under 28 U.S.C. § 2244(d) (1) (B), because counsel were provided by the state and therefore constitute a "state-created impediment" to the timely filing of his Petition (id. at 4).


I. The Court's Jurisdiction

As an initial matter, the undersigned Magistrate Judge has jurisdiction to deny Petitioner's Petition and dismiss this action with prejudice. "Upon the consent of the parties, " a magistrate judge "may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case." 28 U.S.C. § 636(c) (1). Here, Petitioner is the only "party" to the proceeding and has consented to the jurisdiction of the undersigned U.S. Magistrate Judge; Respondent has not yet been served with the Petition and therefore is not yet a party to this action. See, e.g., Travelers Cas. & Sur. Co. of Am. v. Brenneke , 551 F.3d 1132, 1135 (9th Cir. 2009) ("A federal court is without personal jurisdiction over a defendant unless the defendant has been served in accordance with Fed.R.Civ.P. 4." (internal quotation marks omitted)). Thus, all parties have consented pursuant to § 636(c) (1). See Wilhelm v. Rotman , 680 F.3d 1113, 1119-21 (9th Cir. 2012) (holding that magistrate judge had jurisdiction to sua sponte dismiss prisoner's lawsuit under 42 U.S.C. § 1983 for failure to state claim because prisoner consented and was only party to action); United States v. Real Prop. , 135 F.3d 1312, 1317 (9th Cir. 1998) (holding that magistrate judge had jurisdiction to enter default judgment in in rem forfeiture action even though property owner had not consented because § 636(c) (1) requires consent only of "parties" and property owner, having failed to comply with applicable filing requirements, was not "party"); Carter v. Valenzuela, No. CV 12-05184 SS, 2012 WL 2710876, at *1 n.3 (C.D. Cal. July 9, 2012) (after Wilhelm, finding that magistrate judge had authority to deny successive habeas petition when petitioner had consented and respondent had not yet been served with petition).

Moreover, a district court has the authority to raise the statute-of-limitations issue sua sponte when untimeliness is obvious on the face of a petition; it may summarily dismiss the petition on that ground pursuant to Rule 4 of the Rules Governing § 2254 Cases in the U.S. District Courts, as long as the court gives the petitioner adequate notice and an opportunity to respond. Herbst v. Cook , 260 F.3d 1039, 1042-43 (9th Cir. 2001). Here, the Court gave Petitioner notice that his Petition appeared to be untimely and an opportunity to respond, which he has done.

Accordingly, this Court has the authority to deny Petitioner's Petition and dismiss ...

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