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Nguyen v. Hill

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

April 17, 2017

VIVIAN T. NGUYEN, Petitioner,
v.
M. HILL, Warden, Respondent.

          ORDER TO SHOW CAUSE

          DOUGLAS F. McCORMICK, UNITED STATES MAGISTRATE JUDGE

         On March 29, 2017, Vivian T. Nguyen (“Petitioner”) constructively filed pro se a Petition for Writ of Habeas Corpus by a Person in State Custody, challenging her 2012 convictions by guilty plea in Orange County Superior Court. Dkt. 1 (“Petition”).[1] The Petition appears to raise two claims: that Petitioner pleaded guilty even though she was “suffer[ing] with schizoaffective disorder and [she] had no idea what she was doing” and that her counsel failed to adequately investigate her mental condition before advising her to plea. Id. at 5, 7.[2]

         For the reasons discussed below, it appears that the Petition is untimely by more than 3 years. Petitioner is therefore ordered to show cause in writing by May 12, 2017, why the Petition should not be dismissed with prejudice as time barred.

         A. State-Court Proceedings

         On September 6, 2012, Petitioner pleaded guilty to charges of assault with a deadly weapon, child abuse and endangerment, and driving under the influence. Petition at 1; see also Superior Ct. of Cal., Cty. of Orange Online Servs., https://ocapps.occourts.org/Vision_PublicNS/ (search for case no. 11WF2062). That same day, she was sentenced to 9 years in state prison. Petition at 1; see also Superior Ct. of Cal., Cty. of Orange Online Servs., https: //ocapps.occourts.org/VisionPublicNS/ (search for case no. 11WF2062). Petitioner did not appeal.

         On January 5, 2017, Petitioner filed a habeas petition in the California Court of Appeal, raising a claim similar to the ones she raises in her federal Petition: that Petitioner's guilty plea should be vacated because counsel was ineffective for failing to investigate Petitioner's medical condition given that Petitioner was suffering from schizoaffective disorder. Petition at 4; Appellate Cts. Case Information, http://appellatecases.courtinfo.ca.gov/search.cfm?dist =43 (search for case no. G054477).[3] On January 12, 2017, the Court of Appeal denied the petition “without prejudice so that [P]etitioner may file a petition in the superior court first.” Petition at 5; Appellate Cts. Case Information, http://appellatecases.courtinfo.ca.gov/search.cfm?dist=43 (search for case no. G054477).

         Petitioner states that on January 30, 2017, she filed a habeas petition in the Orange County Superior Court, alleging the same claim as her earlier state habeas petition.[4] Petition at 3. The Superior Court denied the petition on March 15, 2017. Id.

         According to the California Appellate Courts Case Information website, Plaintiff filed a state habeas petition in the California Supreme Court on January 30, 2017. See Appellate Cts. Case Information, http://www.courts.ca. gov/supremecourt.htm (search for case no. S239778). On March 15, 2017, the California Supreme Court denied the petition with citations to In re Robbins, 18 Cal.4th 770, 780 (1998); People v. Duvall, 9 Cal.4th 464, 474 (1995); and In re Swain, 34 Cal. 2d 300, 304 (1949).[5] Appellate Cts. Case Information, http://www.courts.ca.gov/supremecourt.htm (search for case no. S239778). Those citations indicate that Petitioner's claim was not stated with sufficient particularity and that it was untimely. See Thorson v. Palmer, 479 F.3d 643, 644-45 (9th Cir. 2007) (finding that citation to Robbins indicates that petition was rejected as untimely); King v. Roe, 340 F.3d 821, 823 (9th Cir. 2003) (per curiam) (finding that citations to Swain and Duvall indicate that claim has not been stated with sufficient particularity), abrogation on other grounds recognized by Waldrip v. Hall, 548 F.3d 729 (9th Cir. 2008).

         B. The Petition Is Facially Untimely

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a one-year limitation period applies to a federal petition for writ of habeas corpus filed by a person in state custody. See 28 U.S.C. § 2244(d)(1). In most cases, the limitation period begins running from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).

         Petitioner was sentenced on September 6, 2012. Petition at 1; see also Superior Ct. of Cal., Cty. of Orange Online Servs., https://ocapps.occourts. org/Vision_PublicNS/ (search for case no. 11WF2062). Because she did not appeal, see Petition at 2, her convictions and sentence became final 60 days later, on November 5, 2012. See Stancle v. Clay, 692 F.3d 948, 951 (9th Cir. 2012); Cal. R. Ct. 8.308(a) (notice of appeal must be filed within 60 days of judgment). Under § 2244(d)(1)(A), therefore, the AEDPA limitation period expired one year later, on November 5, 2013. See Patterson v. Stewart, 251 F.3d 1243, 1246-47 (9th Cir. 2001). Petitioner did not constructively file the Petition until March 29, 2017, more than 3 years after the limitation period expired.

         C. Later Trigger Date

         From the face of the Petition, Petitioner is entitled to a later trigger date under § 2244(d)(1)(B), (C), or (D). She does not assert that she was impeded from filing her federal petition by unconstitutional state action. See § 2244(d)(1)(B). Nor are her claims based on a federal constitutional right that was newly recognized by the United States Supreme Court and made retroactively applicable to cases on collateral review. See § 2244(d)(1)(C).

         Finally, it appears that Petitioner has been long aware of the underlying factual predicate of her claims. See § 2244(d)(1)(D) (providing that limitation period may begin to run on “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence”). First, Petitioner apparently has been long aware of her mental-health problems, as she states that she has had them “all her life” and that she herself advised trial counsel of her “mental medical condition.” See Petition at 7. Moreover, Petitioner pleaded guilty in September 2012, and once in prison she began receiving mental-health treatment that was apparently successful. See id. at 17-18 (Dec. 2016 medical record showing that Petitioner began receiving mental-health treatment after being identified during “routine mental health screening at the reception center”; she was thereafter placed in “CCCMS LOC[6] due to her history of psychotic symptoms and debilitating anxietyā€¯; and at the time of the evaluation, she had normal behavior, affect, speech, and thinking processes and was able to manage symptoms with psychiatric mediation). As such, it appears that Petitioner has been aware since September 2012-or soon ...


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