United States District Court, S.D. California
ORDER ADOPTING REPORT AND RECOMMENDATION, AS MODIFIED;
ORDER GRANTING MOTION TO DISMISS; AND ORDER DENYING PETITION FOR WRIT OF HABEAS
LARRY ALAN BURNS, District Judge.
On April 14, 2014, Petitioner Frank Lewis, a prisoner in state custody, filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, collaterally attacking his convictions for second degree murder, attempted murder, and shooting at an occupied vehicle, and attendant jury findings.
The petition was initially referred to Magistrate Judge Karen Crawford for report and recommendation, as provided by 28 U.S.C. § 636 and Fed.R.Civ.P. 72. It was then transferred to Magistrate Judge Jill Burkhardt. Respondent Daniel Paramo moved to dismiss the petition as time-barred. After receiving briefing, Judge Burkhardt issued her report and recommendation (the "R&R"), recommending denying the petition. The R&R directed Lewis to file any objections he might have no later than February 2, 2015. Instead of doing that, he filed a motion for extension of time to object. The motion is dated February 3 and the affidavit on the proof of service is dated February 5. In other words, Lewis waited until at least three days after the deadline passed to seek an extension. The Court, however, granted the requested extension (Docket no. 23) and gave Lewis until March 9, 2015 to file his objections. That order cautioned Lewis that it appeared he had not been diligent in preparing his objections, and he should not expect additional extensions.
On March 10, the day after objections were due, someone identifying himself as Jonathan Bloom with the Criminal Research Association in Chicago called about seeking an extension. Bloom said he would be substituting in as counsel for Lewis within three days. But that time has passed, and Bloom has still not substituted in. Furthermore, a review of public records shows there is no one by that name admitted to practice law either in California or in this Court. As of the date of this order, no objections have been received.
A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. Fed.R.Civ.P. 72(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Id. "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). This section does not require some lesser review by the district court when no objections are filed. Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The "statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (en banc) (emphasis in original).
While the Court is under no obligation to review the record to determine compliance with AEDPA's requirements, it may properly consider, sua sponte, threshold issues such as timeliness, procedural default, and exhaustion. Day v. McDonough, 547 U.S. 198, 205-06, 209-10 (2006) (citing Granberry v. Greer, 481 U.S. 129 (1987); Long v. Wilson, 393 F.3d 390, 404 (3d Cir. 2004)).
Because Lewis has not objected to any of the R&R's factual findings, including its recitation of the timeline of his direct appeals and state habeas review, the Court accepts it as correct and ADOPTS it. While not required to review the R&R de novo, the Court has reviewed it, and finds it to be correct. The Court, however, must decide whether a certificate of appealability should issue. This requires the Court to decide whether reasonable jurists could disagree with the Court's resolution of the claims, or at least could conclude that the issues presented are "adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). This order therefore modifies and supplements the R&R with additional analysis.
Factual and Procedural History
The following factual background is taken both from the California Court of Appeals' denial of Lewis' direct appeal (Lodgment 6, Docket no. 17-3), which was the last reasoned state court decision on the merits, and from the R&R's unobjected-to factual findings.
Around 2006 through 2007, when Lewis was in prison, he became acquainted with Fred Bostick. In August, 2008, after his release, Lewis became angry when he learned Bostick had been dating his girlfriend, Shannon Butler, while he, Lewis, was in prison. He told acquaintances that he was looking for Bostick and was going to "get" him. On August 28, 2008, Lewis borrowed some polishing compound from an acquaintance, who then saw him polishing six or seven bullets. Lewis showed his acquaintance his 9 millimeter semi-automatic pistol. The next day, as Lewis was driving with Butler, he spotted Bostick's car on the road. Bostick was driving, and a woman named Elizabeth Culbertson was sitting next to him. When Lewis saw Bostick, he said something to the effect of "I will show him, " and swerved to block Bostick's car. Lewis exited his truck, carrying the gun, and ran towards Bostick's car, yelling "you mother-fucker, " and fired a shot into the car. The shot, however, missed Bostick and hit Culbertson, who later died from the gunshot wound. Lewis fled the scene.
The jury convicted Lewis of second degree murder (of Culbertson), attempted murder (of Bostick), and shooting at an occupied vehicle. They also made findings that he intentionally and personally discharged a firearm within the meaning of Cal. Penal Code § 12022.53(d), and caused great bodily injury and death to a person.
Lewis pursued direct appeals through the California Supreme Court, which denied his appeal on August 17, 2011. He filed no certiorari petition, and his conviction became final 90 days later, on November 25, 2011. Absent tolling, AEDPA's one-year limitations period expired on November 26, 2012. See 28 U.S.C. § 2254(d).
Lewis argues he is entitled to equitable tolling because he did everything he could to file a timely habeas petition, and was delayed and misled by the National Association of Legislative Review (NALR). He alleges the NALR agreed to represent him but then failed to do so, and also that it misled him into thinking he had more time than he actually did to file his state habeas petitions. A petitioner seeking equitable tolling bears the burden of establishing both that he has been pursuing his rights diligently, and that some extraordinary circumstances prevented timely filing. Gibbs v. Legrand, 767 F.3d 879, 884-85 ...