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Borhan v. Davis

United States District Court, C.D. California, Western Division

October 9, 2014

PAYMAN BORHAN, Petitioner,
v.
RON DAVIS, Warden, Respondent.

FINDINGS AND CONCLUSION FOLLOWING EVIDENTIARY HEARING

STEPHEN J. HILLMAN, Magistrate Judge.

For the reasons stated below, petitioner is entitled to equitable tolling and therefore his Petition is not untimely.

I. PROCEEDINGS

Petitioner, a prisoner in the custody of the California Department of Corrections and Rehabilitation, challenges his state court convictions for committing a lewd act on a child in California Superior Court, Los Angeles County (Habeas Corpus by a Person in State Custody ("Petition") in the United States District Court for the Southern District of California. The Petition subsequently was transferred to this Court. In his Petition, petitioner alleges the following claims: (1) The trial court's denial of petitioner's motion to substitute retained counsel violated petitioner's Sixth Amendment rights; (2) The trial court's admission of propensity evidence under California Evidence Code § 1108 violated petitioner's rights to due process and a fair trial; (3) Petitioner received ineffective assistance of counsel based on his trial counsel's failure to interview and/or call witnesses, inhibiting petitioner's ability to seek new counsel, and advising petitioner not to testify; (4) The trial court's failure to sua sponte instruct the jury on the lesser included offense of annoying or molesting a child violated petitioner's rights to due process and a fair trial; and (5) Petitioner's sentence constituted cruel and unusual punishment under the Eighth Amendment. (Petition at 5-6).

Respondent filed an Answer to the Petition on October 23, 2006. Petitioner subsequently filed a Motion to Stay The Proceedings Pending Exhaustion of State Court Remedies ("Motion to Stay Proceedings"), wherein petitioner requested that the Court stay the Petition while petitioner exhausted the second and fourth claims alleged in the Petition. In a Minute Order issued on November 16, 2006, the Court denied the Motion to Stay Proceedings without prejudice to petitioner to refiling after the resolution of any issues related to the filing of an amended petition. (The Court had rejected for filing a brief submitted by petitioner that was submitted after respondent had filed an Answer, and which alleged a claim not alleged in the Petition).

After receiving extensions of time, on July 6, 2007, petitioner filed a Motion to Amend the Petition, accompanied by a proposed First Amended Petition ("First Amended Petition") and a supporting Brief. In addition to the claims alleged in the original Petition, the proposed First Amended Petition alleged that petitioner received ineffective assistance of counsel based on trial counsel's and appellate counsel's failure to raise the instructional error claim. (First Amended Petition at 5-6; Brief at 9-44).

Respondent filed an opposition to petitioner's motion to amend ("Opposition") on July 24, 2007. In the Opposition, respondent contended that the motion to amend should be denied because the original Petition is barred by the one-year statute of limitations. (See Opposition at 7-12). Respondent alternatively contended that the motion to amend should be denied because the new claim alleged in the proposed First Amended Petition does not "relate back" to the claims alleged in the original Petition and therefore would be time barred. (See Opposition at 12-18). Respondent alternatively contended that the motion to amend should be denied because the proposed First Amended Petition contains unexhausted claims. (See Opposition at 18-22). Respondent alternatively contended that the motion to amend should be denied because petitioner's undue delay had prejudiced respondent. (See Opposition at 23-25).

Petitioner filed a Reply in Support of the Motion to Amend Petition ("Reply") on August 16, 2007.

The Court issued a Report and Recommendation on August 22, 2007. Petitioner filed Objections to the Report and Recommendation ("Objections") on September 4, 2007. Respondent filed a Reply to the Objections ("Reply to Objections") on September 20, 2007. In a Minute Order issued on September 24, 2007, the Court ordered petitioner to file: (1) A declaration from petitioner's counsel stating on what date she was retained by petitioner; and (2) Any additional declaration concerning petitioner's reliance, if any, on Abela v. Martin , 348 F.3d 164 (6th Cir. 2003)(en banc), cert. denied, 541 U.S. 1070 (2004) ("Abela").[1] Petitioner filed a Declaration of Lisa M. Bassis ("Bassis Declaration") on October 3, 2007.

In a Minute Order issued on October 12, 2007, the Court found that: (1) based on petitioner's counsel's statements in her declaration about the date of petitioner's retention of her services (i.e., mid-September 2005), and about her reliance on Abela, supra "in her calculation and calendering of the applicable limitations period" for the filing of the original Petition, petitioner was entitled to equitable tolling for the 90-day period after the California Supreme Court's denial of petitioner's first habeas petition, the statute of limitations did not begin to run until September 7, 2005, and petitioner had until September 7, 2006 to timely seek federal habeas relief; and (2) based on the fact that the original Petition was lodged in the United States District Court for the Southern District of California on September 5, 2006, that the original Petition was filed on a timely basis. Accordingly, the Court vacated its August 22, 2007 Report and Recommendation.[2]

On October 19, 2007, respondent filed a "Notice of Motion and Motion for Review and Reconsideration of Magistrate Judge's October 19, 2007 Minute Order, " which the Court construed as a Supplemental Reply to the Objections ("Supplemental Reply"). In light of respondent's Supplemental Reply, the Court issued a Minute Order on October 23, 2007, (a) vacating its October 12, 2007 Minute Order (the August 2007 Report and Recommendation remained in effect), and (b) ordering petitioner to file a response to the Supplemental Reply. On November 28, 2006, petitioner filed a Response to the Supplemental Reply ("Response to Supplemental Reply"). On January 10, 2008, respondent filed a Reply to Petitioner's Response to Supplemental Reply ("Reply to Petitioner's Response").

On January 15, 2008, the Court issued a Final Report and Recommendation, recommending the dismissal of the action based on the untimeliness of the Petition.

In his Objections to the Report and Recommendation, petitioner contended he was entitled to equitable tolling "because (1) [he] seeks federal review of an unconstitutionally flawed conviction, and the Supreme Court has recognized that the statute of limitations is to be interpreted fairly and in an even handed fashion' and (2) as of the time the federal petition was filed, there was a split of authority on the central issue in this case, e.g., as to whether AEDPA's limitations period is tolled by certiorari petitions filed with the Supreme Court, thus revealing the complexity of the legal questions presented to petitioner and his counsel.'

As support for the second equitable tolling argument, petitioner cited to the fact that, in contrast to the Ninth Circuit in White v. Klitzkie , 281 F.3d 920, 925 (9th Cir. 2002), the Abela Court had held that the limitations period was tolled until the conclusion of the time for filing a petition for writ of certiorari in the United States Supreme Court. (See Objections at 11). As further support for the second equitable tolling argument, petitioner's counsel declared that she had relied on Abela "in her calculation and calendaring of the applicable limitations period" for the filing of the Petition. (See Bassis Declaration at ¶ 3). As further support for the second equitable tolling argument, petitioner alleged that there was confusion about the tolling of the statute of limitations as a result of United States Supreme Court cases decided subsequent to White, i.e., Carey v. Saffold , 536 U.S. 214, 219, 122 S.Ct. 2134, 153 L.Ed.2d 2d (2002); Clay v. United States 537 U.S. 522 , 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003), and as demonstrated by the United States Supreme Court's grant of the petition for writ of certiorari in Lawrence v. Florida 547 U.S. 1039 , 126 S.Ct. 1625, 164 L.Ed.2d 332 (2006) prior to the filing of the instant Petition. (See Response to Supplemental Reply at 8-16).

The Court rejected petitioner's equitable tolling contention, as follows:

Here, petitioner has failed to establish that circumstances beyond his control made it impossible for him to file a timely federal habeas petition. See Pace v. Diguglielmo , 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)(a petitioner seeking equitable tolling bears the burden of establishing "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way."). More than four years prior to the filing of the Petition, the Ninth Circuit in White decided that a federal habeas petitioner would not be entitled to statutory tolling under for the 90-day period following the California Supreme Court's denial of a habeas petition. Contrary to petitioner's assertions, the conflicting decisions of the Ninth Circuit in White and the Sixth Circuit in Abela did not result in legal confusion that would warrant petitioner's entitlement to equitable tolling. See Provencio v. Henry, 233 Fed.Appx. 743, 744 (9th Cir. 2007)("The fact that [the petitioner] is able to point to one case reaching a contrary result, see Abela v. Martin , 348 F.3d 164 (6th Cir. 2003) (en banc), is not sufficient to give rise to the type of "extraordinary circumstances" required to justify equitable tolling in this circuit."). Petitioner's attorney's miscalculation of the statute of limitations does not entitle petitioner to equitable tolling. See Lawrence, supra, 127 S.Ct. at 1085; Miranda v. Castro , 292 F.3d 1063, 1067-68 (9th Cir. 2002), cert. denied, 537 U.S. 1003 (2002); Frye v. Hickman , 273 F.3d 1144, 1146 (9th Cir. 2001), cert. denied, 535 U.S. 1055 (2002). (See Final Report and Recommendation at 12-13).[3]

On January 17, 2008, the district court denied the Petition with prejudice, in accordance with the conclusions of the Magistrate Judge. Judgment was entered on the same date.

Petitioner filed a Motion to Vacate the Judgment and for an Enlargement of Time to file Objections on January 28, 2008. In a Minute Order issued on January 30, 2008, the Court granted petitioner an enlargement of time to file Objections to the Final Report and Recommendation. Petitioner filed Objections to the Final Report and Report and Recommendation on February 8, 2008. On April 2, 2008, the district court denied the Motion to Vacate Judgment and overruled the Objections to the Final Report and Recommendation.

On April 2, 2008, the district court denied petitioner's Request for a Certificate of Appealability.

On November 18, 2008, the Ninth Circuit Court of Appeals denied petitioner's request for a certificate of appealability.

Petitioner filed a Motion for Relief from Judgment on March 27, 2009. On April 3, 2009, the district court denied petitioner's Motion for Relief from Judgment.

Petitioner filed a Motion for Reconsideration and Relief from Judgment on September 25, 2009. On October 2, 2009, the district court denied petitioner's Motion for Reconsideration and Relief from Judgment.

Petitioner filed another Motion for Relief from Judgment on February 16, 2010. After receiving extensions of time, on May 17, 2010, respondent filed an Opposition to the Motion for Relief from Judgment. On August 10, 2010, the district court denied petitioner's Motion for Relief from Judgment.

Petitioner filed another Motion for Relief from Judgment on October 13, 2010. On November 1, 2010, the district court denied petitioner's Motion for Relief from Judgment.

On November 12, 2010, petitioner filed a Motion for Reconsideration of the August 10, 2010 denial of the Motion for Relief from Judgment.[4]

On December 3, 2010, petitioner filed a Motion for Reconsideration of the November 1, 2010 denial of the Motion for Relief from Judgment. On December 9, 2010, the district court denied petitioner's Motion for Reconsideration.

Petitioner filed an Application for a Certificate of Appealability arising from the November 1, 2010 denial of petitioner's Motion for Relief from Judgment and the December 9, 2010 denial of petitioner's Motion for Reconsideration. On April 15, 2011, the district court denied petitioner's Application for a Certificate of Appealability.

On July 6, 2011, the Ninth Circuit Court of Appeals granted petitioner's request for a certificate of appealability with respect to "whether the district court abused its discretion in denying appellant's motion for relief from judgment under Federal Rule of Civil Procedure 60(b) based on federal habeas counsel's alleged misconduct."

On August 15, 2013, the Ninth Circuit Court of Appeals vacated the Judgment and remanded the matter to the district court for purposes of holding an evidentiary hearing on petitioner's claim that he is entitled to equitable tolling on the basis of his federal habeas counsel's alleged misconduct (beyond "her reliance on out-of-circuit case law directly contradicting Ninth Circuit case law") in "ignor[ing] his communications questioning her calculation of the filing deadline and asking her to conduct additional research."[5]

Following receipt of the Ninth Circuit's mandate, the Court appointed the Office of the Federal Public Defender as counsel for petitioner. The deposition of Lisa Bassis ("Bassis Deposition"), petitioner's federal habeas counsel, took place on December 20, 2013. Prior to the evidentiary hearing, petitioner filed a Pre-Hearing Brief ("Petitioner's Pre-HB"), respondent filed a Pre-Evidentiary Hearing Brief ("Respondent's Pre-EHB"), and the parties filed a Joint Witness List (amended to include petitioner's federal habeas counsel, see Evidentiary Hearing Transcript ["EHT"] at 14), a Joint Exhibit List, and Joint Stipulations. The evidentiary hearing took place on February 25, 2014. Four people - Lisa Bassis, petitioner, Cifford Gardner, and Raymond Garcia - testified at the hearing, and the Declaration of Jonathan Milberg was admitted in lieu of his testimony at the hearing. Following the evidentiary hearing, petitioner filed a Post-Hearing Brief ("Petitioner's PHB"), and respondent filed a Post-Evidentiary Hearing Brief ("Respondent's PEHB").

Thus, this Findings and Conclusion Following Evidentiary Hearing now issues.[6]

II. PROCEDURAL HISTORY

On December 10, 2002, a Los Angeles Superior Court jury found petitioner guilty of two counts of committing a lewd act upon a child. In addition, the jury found true the special allegations that petitioner had committed the offenses on more than one victim at the same time and in the same course of conduct. (See Clerk's Transcript ["CT"] at 149-153). On March 20, 2003, after denying petitioner's motion for a new trial, the trial court sentenced petitioner to state prison for a total of 15 years to life. (See CT at 187-88, 193-94).

Petitioner appealed his convictions to the California Court of Appeal, wherein he alleged the same claims as the first and second claims alleged in the Petition herein. In an unpublished Opinion issued on May 24, 2004, the California Court of Appeal modified the Judgment to alter the presentence credit award and ...


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