United States District Court, C.D. California
DERRICK JESUS ODEN SR., Petitioner.
RANDY GROUNDS, Warden, Respondent
Derrick Jesus Oden, Sr., Petitioner, Pro se, Lancaster, CA.
ANDREW GUILFORD, UNITED STATES DISTRICT JUDGE. Jean Rosenbluth, United States Magistrate Judge.
ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING CASE
ANDREW GUILFORD, UNITED
STATES DISTRICT JUDGE.
On December 3, 2014, Petitioner, a state prisoner, filed a Petition for Writ of Habeas Corpus. The only claim in it alleges that his counsel was constitutionally ineffective in handling his prior federal habeas petition (Pet. at 5), which this Court denied on October 15, 2012. See Oden v. Grounds, No. CV 11-1088-AHM (JPR), 2012 WL 4882302 (C.D. Cal. Oct. 15, 2012). No matter how it is construed, the new Petition must be dismissed under Rule 4 of the Rules Governing § 2254 Cases in the U.S. District Courts.
If the new Petition is interpreted as attacking Petitioner's 2008 state-court convictions, which were also the subject of the earlier habeas petition, then it is successive and Petitioner must first request and receive permission from the Ninth Circuit Court of Appeals to file it. See 28 U.S.C. § 2244(b); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001). The Court's review of the Ninth Circuit's docket confirms that he has done neither. If the Petition is construed not as attacking the 2008 state-court convictions but rather the effectiveness of his counsel in the federal proceedings, he is not entitled to habeas relief because his claim does not implicate " the Constitution or laws or treaties of the United States." See 28 U.S.C. § 2254(a); Lawrence v. Florida, 549 U.S. 327, 337, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007) (noting that federal habeas petitioners have no constitutional right to counsel).
If the Court construes the Petition as a motion under Federal Rule of Civil Procedure 60(b) seeking reconsideration of the denial of the earlier habeas petition, it still fails. Rule 60(b) allows a party to seek relief from a final judgment under the following limited circumstances:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud . .., misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged . . .; or
(6) any other reason that justifies relief.
A Rule 60(b) motion is not a disguised successive petition if it does not challenge " the substance of the federal court's resolution of a claim on the merits, but some defect in the integrity of the federal habeas proceedings." Gonzalez v. Crosby, 545 U.S. 524, 532, 125 S.Ct. 2641, 162 L.Ed.2d 480 nn.4 & 5, 538 (2005); see also Cook v. Ryan, 688 F.3d 598, 608 (9th Cir.) (holding that petitioner's Rule 60(b) motion challenging district court's denial of claim as procedurally barred not successive under Crosby), cert. denied, 133 S.Ct. 81, 183 L.Ed.2d 721 (2012). On the other hand, " an attack based on . . . habeas counsel's omissions ordinarily does not go to the integrity of the proceedings, but in effect asks for a second chance to have the merits determined favorably."
Gonzalez, 545 U.S. at 532 n.5 (citation omitted). Such claims are generally treated as impermissible second petitions. See United States v. Soto-Valdez, No. CV- 99-1591-PHX-RCB (LOA), 2013 WL 5297142, at *6-8 (D. Ariz. Sept. 19, 2013) (discussing cases).
But even if the Court construes the Petition as a motion seeking relief from the Judgment and does not reject it as a disguised successive petition because the merits of Petitioner's claims were never reached,
see Gonzalez, 545 U.S. at 532 n.4, he still cannot prevail. Petitioner alleges that his federal habeas counsel " fail[ed] to keep Petitioner 'reasonably informed of significant developements [sic]'" in the case and that Petitioner was having mental-health problems that rendered him unable to represent himself. (Pet. at 5.) Specifically, counsel failed to file any objections to the Magistrate Judge's Report and Recommendation, which found all of Petitioner's claims procedurally barred, and failed to alert Petitioner to the filing of the R& R so as to enable him to file his own objections. (Id. at 5(A)-(E); see also id., Ex. A (state bar finding that counsel " violated" obligation to keep Petitioner informed of " significant development" but that " there is not sufficient evidence of misconduct which would result in discipline").) Petitioner acknowledges, however, that counsel informed Petitioner when the Magistrate Judge's R& R was accepted by this Court and Judgment was entered denying the Petition. (Id. at 5(D).) Indeed, Petitioner raised his argument concerning his federal habeas counsel's ineffectiveness on appeal as part of his request for a certificate of appealability, and the Ninth Circuit nonetheless denied the request as well as his request for reconsideration. See generally Oden v. Grounds, No. 12-57080 (9th Cir. 2012).
Petitioner has not explained, to this Court or the Ninth Circuit, how he was prejudiced by his counsel's failure to file objections to the R& R, as he has not stated what he could have argued to demonstrate that his claims were not procedurally defaulted. Indeed, even though the Reply filed by Petitioner's counsel in Case No. CV 11-1088-AHM (JPR) did not raise any arguments attempting to show " cause" to excuse the defaults, the Magistrate Judge sua sponte considered several arguments that Petitioner had raised in the state-court proceedings and found that none of them justified his delay in raising his claims in state court. (See R& R at 11-13.) She further found, after lengthy analysis, that Petitioner could not demonstrate his " actual innocence" under Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). (See R& R at 13-20.) The Court adopted the R& R in its entirety.
Thus, to the extent Petitioner's new Petition can be construed as a valid Rule 60(b) motion challenging defects in the integrity of the federal habeas proceedings, he is still not entitled to relief. Liberally construing his arguments as seeking relief under the catchall provision of Rule 60(b)(6), the Court finds that its previous procedural-default analysis (R& R at 5-13) was sound, Petitioner has not pointed to any facts or argument undermining that analysis, and no extraordinary circumstances justify reopening the judgment. See Phelps v. Alameida, 569 F.3d 1120, 1135 (9th Cir. 2009) (noting that Rule 60(b)(6) requires showing of " extraordinary circumstances" (internal quotation marks omitted)). Although Petitioner claims to have been hampered by mental illness during the earlier habeas proceedings, he was represented by competent counsel; indeed, counsel succeeded in convincing the Court to reject one of Respondent's ...