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Ewing v. Lizarraga

United States District Court, N.D. California

June 20, 2017

DeWAYNE L. EWING, AI4771, Petitioner,
v.
J. A. LIZARRAGA, Warden, Respondent.

          ORDER GRANTING MOTION TO DISMISS, AND DENYING CERTIFICATE OF APPEALABILITY ECF NOS. 8, 16 & 17

          CHARLES R. BREYER United States District Judge

         I. Petitioner, a California state prisoner incarcerated at Mule Creek State Prison, seeks a writ of habeas corpus under 28 U.S.C. § 2254 invalidating a September 12, 2011 conviction and sentence from Alameda County Superior Court. Per order filed on October 18, 2016, the court found that, liberally construed, petitioner's claim that counsel's advice to plead no contest amounted to ineffective assistance of counsel appeared cognizable under § 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent instead filed a motion to dismiss the petition as untimely and procedurally defaulted. Petitioner has filed an opposition and respondent has filed a reply.

         II.

         On January 29, 1994, two men kidnapped and robbed a husband and wife, beat up the husband, and raped the wife. Following a cold hit on DNA evidence many years later, petitioner was indicted by a grand jury on two counts of kidnapping during the commission of a carjacking, Cal. Penal Code § 209.5(a), and two counts of kidnapping to commit rape, id. § 209(b)(1), with enhancements for use of a firearm, great bodily injury and being armed with a firearm.

         On July 19, 2011, pursuant to a negotiated plea agreement, petitioner pleaded no contest to three lesser-included offenses - two counts of simple kidnapping, id. § 207(a), and one count of carjacking, id. § 215 - for a determinate sentence of 25 years in state prison.[1] Petitioner expressly waived any objection to the facts that the lesser-included offenses were otherwise barred by the statute of limitation and that he ordinarily could receive only one-third of the midterm on the second and third counts, as well as his right to appeal, in order to avoid possible consecutive life sentences and receive the agreed-upon 25-year term. The prosecutor dismissed the original charges and all enhancements.

         On September 12, 2011, petitioner was sentenced to 25 years in state prison. He did not appeal.

         On September 17, 2012, petitioner filed a petition for a writ of habeas corpus in Alameda County Superior Court raising a claim of improper denial of pre-sentence credits and four claims of ineffective assistance of counsel. On November 15, 2012, the court denied the pre-sentence credits claim on the merits and the ineffective assistance of counsel claims as untimely, citing People v. Kim, 45 Cal.4th 1078, 1097 (2009); In re Sanders, 21 Cal.4th 697, 703 (1999); In re Robbins, 18 Cal.4th 770, 780 (1998); and In re Clark, 5 Cal.4th 750, 768, 775, 797 (1993). ECF No. 1 (Pet.) at 31-33. The court added that the ineffective assistance of counsel claims lacked merit, even if they had been timely raised. Id. at 33-35.

         On April 2, 2013, petitioner filed a petition for a writ of habeas corpus in the California Court of Appeal. It was summarily denied on April 11, 2013. ECF No. 8 (Mot. to Dismiss) at 43 (Ex. 2).

         On April 1, 2015, petitioner filed another petition for a writ of habeas corpus in Alameda County Superior Court raising additional claims of ineffective assistance of counsel. On May 28, 2015, the court denied the petition as procedurally barred by the rule against successive petitions and abuse of the writ, citing In re Clark, 5 Cal.4th 750, 768, 797 (1993); and In re Miller, 17 Cal. 2d 734, 735 (1941). ECF No. 1 at 29-30.

         On August 24, 2015, petitioner filed a petition for a writ of habeas corpus in the California Court of Appeal. It was summarily denied on September 3, 2015. ECF No. 8 at 45 (Ex. 3).

         On February 2, 2016, petitioner filed a petition for a writ of habeas corpus in the California Supreme Court. On April 20, 2016, the state high court denied the petition as untimely, citing In re Robbins, 18 Cal.4th 770, 780 (1998). ECF No. 8 at 79 (Ex. 5).

         On October 11, 2016, petitioner filed the instant federal petition for a writ of habeas corpus under § 2254 claiming that counsel's advice to plead no contest to three lesser-included offenses amounted to ineffective assistance of counsel because: (1) the charges to which petitioner pleaded no contest were barred by the statute of limitation; (2) counsel incorrectly informed petitioner that he faced life in prison if he went to trial; (3) counsel failed to investigate the evidence, including DNA evidence; and (4) counsel failed to raise a doubt about petitioner's competence.

         III.

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) became law on April 24, 1996 and imposed for the first time a statute of limitation on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging non-capital state convictions or sentences must be filed within one year of the latest of the date on which: (1) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (2) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (3) the constitutional right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) the factual predicate of the claim could have been discovered through the ...


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