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Bagsby v. Ducart

United States District Court, C.D. California

January 13, 2015

CLARK E. DUCART, Warden [1], Respondent

James Lamont Bagsby, Jr., Petitioner, Pro se, Cresent City, CA.

For Greg Lewis, Respondent: Angela M Borzachillo, CAAG - Office of Attorney General, San Diego, CA.



This Report and Recommendation is submitted to the Honorable Percy Anderson, U.S. District Judge, under 28 U.S.C. § 636 and General Order 05-07 of the U.S. District Court for the Central District of California.


On April 21, 2014, in the Northern District of California, Petitioner constructively filed a Habeas Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254, [2] challenging his 2010 convictions for second-degree murder and 10 counts of assault with a firearm. (Pet. at 2.) The Petition includes a memorandum of points and authorities and attached exhibits. On May 23, 2014, the Northern District of California transferred the case to this Court. On August 12, 2014, Respondent filed an Answer, arguing in part that the Petition is time barred. On September 5, 2014, Petitioner filed a Reply.

The Court's June 12, 2014 Order Requiring Response to Petition required Respondent to raise any timeliness argument in a motion to dismiss, which Respondent did not do. Nonetheless, because Petitioner had the opportunity to respond to the argument in his Reply and untimeliness is obvious on the face of the Petition, the Court considers Respondent's argument. Cf. Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001) (district court has authority to raise statute-of-limitations issue sua sponte when untimeliness is obvious on face of petition and may deny petition as long as it gives petitioner adequate notice and opportunity to respond).


I. Petitioner's prison sentence of 107 years to life for crimes he committed when he was 15 years old constitutes cruel and unusual punishment in violation of the Eighth Amendment. (Pet. at 6; Pet. Mem. P. & A. at 14-17.)[3]

II. The trial court prejudicially failed to state reasons for imposing the upper term for each of the firearm enhancements. (Pet. at 6; Pet. Mem. P. & A. at 17-19.)

III. Petitioner was denied the effective assistance of trial and appellate counsel. (Pet. at 6; Pet. Mem. P. & A. at 19-24.)

IV. The trial court's failure to hold a competency hearing violated Petitioner's due process right not to be tried while incompetent. (Pet. at 7; Pet. Mem. P. & A. at 24-26.)

V. The " failure of trial court to hold special hearing on Petitioner's mental disorder" violated Petitioner's right to due process. (Pet. at 7; Pet. Mem. P. & A. at 26-28.)


On April 21, 2010, Petitioner was convicted by a San Bernardino County jury of second-degree murder and ten counts of assault with a firearm. (Lodged Doc. 1, 3 Clerk's Tr. at 537-62.) As to each of the counts, the jury found true firearm-enhancement allegations. (Id. at 538-40, 543, 545, 548, 550, 552, 554, 556, 558, 560, 562.) On June 8, 2010, the trial court sentenced Petitioner to an aggregate term of 107 years to life in state prison. (Lodged Doc. 1, 2 Clerk's Tr. at 421-23.)

Petitioner appealed, raising claims corresponding to grounds one and two of the Petition. (Lodged Doc. 4.) On September 20, 2011, the California Court of Appeal affirmed the judgment. (Lodged Doc. 7.) Petitioner filed a petition for review, raising only a claim corresponding to ground one of the Petition (Lodged Doc. 8); on November 30, 2011, the California Supreme Court summarily denied review (Lodged Doc. 9).

On February 1, 2013, Petitioner constructively filed a habeas petition in San Bernardino County Superior Court, raising claims corresponding to grounds four and five of the Petition. (Lodged Doc. 10.) On February 26, 2013, the superior court denied the petition in a reasoned decision, finding in part that it was untimely. (Lodged Doc. 11.)

On April 18, 2013, Petitioner filed a habeas petition in the court of appeal, raising the same claims as in his superior-court petition and adding a claim corresponding to ground three of the Petition. (Lodged Doc. 12.) On May 17, 2013, the court of appeal denied the petition in a reasoned decision. (Lodged Doc. 13.)

On July 17, 2013, Petitioner filed a habeas petition in the supreme court, raising the same claims as in his court-of-appeal petition. (Lodged Doc. 14.) On April 9, 2014, that court denied the petition in a one-line order, citing People v. Duvall, 9 Cal.4th 464, 474, 37 Cal.Rptr.2d 259, 886 P.2d 1252 (1995) (requiring habeas petitions to be pleaded with sufficient particularity). (Lodged Doc. 15.)


I. The Petition Is Untimely

A. Applicable Law

The Antiterrorism and Effective Death Penalty Act (" AEDPA") sets forth a one-year limitation period for filing a federal habeas petition and specifies that the period runs from the latest of the following dates:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). The Court reviews the timeliness of each claim in a habeas petition on an individual basis. Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012).

AEDPA includes a statutory tolling provision that suspends the limitation period for the time during which a properly filed application for postconviction or other collateral review is pending in state court. § 2244(d)(2); see Waldrip v. Hall, 548 F.3d 729, 734 (9th Cir. 2008). An application is " pending" until it has achieved final resolution through the state's postconviction procedures. Carey v. Saffold, 536 U.S. 214, 220, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002). In California, a state habeas petition remains pending between a lower court's denial of it and the filing of a habeas petition in a higher state court, as long as that period is " reasonable." Evans v. Chavis, 546 U.S. 189, 191-92, 126 S.Ct. 846, 163 L.Ed.2d 684 (2006). Periods of up to 60 days are generally presumptively reasonable. Cf. id. at 201. Finally, the limitation period is not tolled between the time a decision becomes final on direct state appeal and when a state collateral challenge is filed because no case is " pending" during that interval. Thorson v. Palmer, 479 F.3d 643, 646 (9th Cir. 2007).

In addition to statutory tolling, federal habeas petitions are subject to equitable tolling of the one-year limitation period in appropriate cases. Holland v. Florida, 560 U.S. 631, 645, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). Determining whether equitable tolling is warranted is a fact-specific inquiry. Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001) (as amended). The petitioner must show that (1) he has been pursuing his rights diligently and (2) some extraordinary circumstance stood in his way and prevented timely filing. Holland, 560 U.S. at 649. In addition, " [t]he petitioner must show that the extraordinary circumstances were the cause of his untimeliness and that the extraordinary circumstances made it impossible to file a petition on time." Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010) (as amended) (internal quotation marks omitted). " Equitable tolling is justified in few cases, " and " the threshold necessary to trigger equitable tolling under AEDPA is very high, lest the exceptions swallow the rule." Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (as amended) (internal quotation marks and alteration omitted).

As to both statutory and equitable tolling, a petitioner bears the burden of demonstrating that AEDPA's limitation period was sufficiently tolled. Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) (equitable tolling); Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002) (statutory tolling), abrogation on other grounds recognized by Cross v. Sisto, 676 F.3d 1172, 1178 (9th Cir. 2012).

B. The Limitation Period

On November 30, 2011, the California Supreme Court denied Petitioner's petition for review. (Lodged Doc. 9.) Because he apparently did not file a petition for writ of certiorari (Pet. at 3), Petitioner's state conviction became final for AEDPA purposes 90 days later, on February 28, 2012. See Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999).

Petitioner has not contended that he is entitled to a later trigger date under § 2244(d)(1)(B), (C), or (D). To the extent he relies on Graham v. Florida, 560 U.S. 48, 82, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (holding that life-without-parole sentence for juveniles who commit nonhomicide offenses violates Eighth Amendment), or its followup case, Miller v. Alabama, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407 (2012) (holding that mandatory life-without-parole sentence for juveniles violates Eighth Amendment), as justification for a later trigger date for ground one under § 2244(d)(1)(C) (Pet. at 14), he cannot prevail. Graham was decided on May 17, 2010, before his conviction became final. And Miller, which was decided on June 25, 2012, does not apply to Petitioner's case because he was not sentenced under a scheme that mandated a life-without-parole sentence. Petitioner is not entitled to a later trigger date under § 2244(d)(1)(D) as to grounds two, three, four, and five of the Petition because the underlying factual and legal predicates of those claims by their very nature were necessarily known to him or his counsel at the time of trial, sentencing, or appeal.

Thus, AEDPA's one-year statute of limitations began to run on February 29, 2012, and, absent tolling, expired on February 28, 2013. See Patterson v. Stewart, 251 F.3d 1243, 1246-47 (9th Cir. 2001) (holding that AEDPA limitation period does not begin until day after triggering event).

C. Statutory Tolling

Although Petitioner filed several state habeas petitions, he is not entitled to statutory tolling sufficient to render his Petition timely. Petitioner constructively filed his first state habeas petition in the superior court on February 1, 2013.[4] (Lodged Doc. 10 at 6); see Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003) (applying prison mailbox rule to state habeas petitions). But he is not entitled to tolling for the pendency of that petition because the superior court rejected it as untimely, citing In re Robbins, 18 Cal.4th 770, 780, 77 Cal.Rptr.2d 153, 959 P.2d 311 (1998):

[P]etitioner has substantially delayed seeking habeas corpus relief, and has not established good cause for that delay, or that any exception to California's timeliness rule is applicable to his petition. His petition for writ of habeas corpus is therefore untimely.

(Lodged Doc. 11 at 1-2); see Thorson, 479 F.3d at 644-45 (holding that citation to Robbins at page 780 indicates untimeliness and noting that statutory tolling not available for petition rejected by state court as untimely because petition not " properly filed"). Thus, when the petition was denied on February 26, 2013 (Lodged Doc. 11), only two days remained in the limitation period. Petitioner did not file his next state habeas petition until April 18, 2013, 49 days after the limitation period had expired.

The fact that Petitioner's second and third habeas petitions were not rejected by the state courts as untimely is of no help to him because § 2244(d) " does not permit the reinitiation of the limitations period that has ended before the state petition was filed, " even if that state petition was timely filed. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Thus, the instant Petition, constructively filed on April 21, 2014, was filed over a year late. Even if Petitioner were entitled to statutory tolling for the entire period between when he filed his court-of-appeal petition, on April 18, 2013 (Lodged Doc. 12), and when the supreme court denied his petition in that court, on April 9, 2014 (Lodged Doc. 15), the Petition was still 61 days late when it was filed, on April 21, 2014.

D. Equitable Tolling

In addition to statutory tolling, federal habeas petitions are subject to equitable tolling of the one-year limitation period in appropriate cases. Holland, 560 U.S. at 645. Petitioner, however, does not argue (see Reply at 1) -- nor does it appear from the face of the Petition -- that he is entitled to equitable tolling. To the extent Petitioner's fourth and fifth claims in the Petition can be liberally construed as raising an argument for equitable tolling based on his alleged incompetency, he has not shown that equitable tolling is warranted.

In order to qualify for tolling stemming from a mental illness, a petitioner must show either that he " (a) . . . was unable rationally or factually to personally understand the need to timely file, or (b) petitioner's mental state rendered him unable personally to prepare a habeas petition and effectuate its filing." Bills v. Clark, 628 F.3d 1092, 1100 (9th Cir. 2010). The mental illness must have existed " during the filing period." Id. If a petitioner demonstrates one of these two things, he must then show " diligence in pursuing the claims to the extent he could understand them, but that the mental impairment made it impossible to meet the filing deadline under the totality of the circumstances, including reasonably available access to assistance." Id.

Petitioner must show that his mental state rendered him unable to timely file the Petition during the AEDPA limitation period: February 28, 2012, to February 28, 2013. But he alleges only that he suffered from " posttraumatic stress disorder and mild retardation" around the time of his trial. (Pet. at 26; see generally Pet., Ex. B (neuropsychological report dated Dec. 2009).) It does not appear that his mental impairments were so severe that he was unable to understand the need to timely file a petition. Although a neuropsychologist diagnosed him in late 2009 with " Borderline Intellectual Functioning" and posttraumatic stress disorder (Pet., Ex. B at 27), his " insight and judgment was [sic] fair", he " appeared to think clearly, and in a linear manner, " and he was " able to concentrate" and " worked hard at the given tasks" in the examination (id. at 16-17). And nothing shows that Petitioner's mental-health issues persisted into the limitation period. Indeed, his claim is further undermined by the fact that he prepared and filed a state habeas petition in the superior court on February 1, 2013, within the limitation period. See Gaston v. Palmer, 417 F.3d 1030, 1034-35 (9th Cir. 2005) (affirming denial of equitable tolling in part because petitioner filed petition in state court during limitation period), amended on other grounds by 447 F.3d 1165 (9th Cir. 2006). Thus, he is not entitled to equitable tolling on account of mental illness.

In sum, Petitioner has not established statutory or equitable tolling sufficient to render his Petition timely. Accordingly, it must be dismissed with prejudice.

II. Petitioner's Request for an Evidentiary Hearing Should Be Denied

Petitioner requests an evidentiary hearing. (Reply at 2.) The District Judge should deny the request. A habeas petitioner " should receive an evidentiary hearing when he makes a good-faith allegation that would, if true, entitle him to equitable tolling." Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (internal quotation marks and emphasis omitted). As discussed, Petitioner has not even attempted to argue that his Petition is timely, much less produce any evidence showing as much. Further, Petitioner's allegations of incompetency at the time of trial, even if accepted as true, do not demonstrate that he was incompetent or mentally ill during the relevant AEDPA time period. Thus, no basis exists for an evidentiary hearing. See Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010) (district court not obligated to hold evidentiary hearing when no extraordinary circumstances caused untimely filing of habeas petition).


IT THEREFORE IS RECOMMENDED that the District Judge issue an Order (1) accepting this Report and Recommendation, (2) denying Petitioner's request for an evidentiary hearing, and (3) directing that Judgment be entered denying the Petition as time barred and dismissing this action with prejudice, unless within the time for filing objections to this Report and Recommendation Petitioner submits argument and evidence demonstrating that he is entitled to sufficient tolling to render the Petition timely.

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