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Dorsey v. Sullivan

United States District Court, S.D. California

November 6, 2017

PHILLIP L. DORSEY, Plaintiff,
v.
W.J. SULLIVAN, Defendant.

          REPORT AND RECOMMENDATION FOR ORDER GRANTING RESPONDENT'S MOTION TO DISMISS [ECF NO. 6]

          HON. BARBARA L. MAJOR UNITED STATES MAGISTRATE JUDGE

         This Report and Recommendation is submitted to United States District Judge Anthony J. Battaglia pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of California. On February 16, 2017, Petitioner Phillip Lynn Dorsey, a state prisoner proceeding pro se and in forma pauperis commenced these habeas corpus proceedings pursuant to 28 U.S.C. § 2254 by constructively filing his Petition. ECF No. 1 (“Pet.”). On March 6, 2017 the Court issued a briefing schedule requiring Respondent to file a motion to dismiss by May 8, 2017 and Petitioner to file an opposition by June 8, 2017. ECF No. 4. On May 1, 2017, Respondent filed a Motion to Dismiss the Petition on the basis that it was not timely. ECF No. 6 (“MTD”). On June 29, 2017, Petitioner filed a motion for an extension of time to file his opposition to the Motion to Dismiss. ECF No. 9. The Court granted the extension and ordered the opposition to be filed by July 24, 2017. ECF No. 10. On July 20, 2017, Petitioner filed a second motion for an extension of time to file his opposition. ECF No. 12. The Court granted the extension and ordered the opposition to be filed by September 7, 2017. ECF No. 13. Petitioner did not file an opposition to the MTD. See Docket. For the reasons set forth below, the Court RECOMMENDS that Respondent's motion to dismiss be GRANTED.

         FACTUAL AND PROCEDURAL BACKGROUND

         On November 22, 2006, an Information was filed charging Petitioner with the following counts plus additional allegations and enhancements: Count 1 - first-degree robbery; Count 2 - residential burglary; Count 3 - grand theft of a firearm; and Count 4 - unlawful taking and driving of a vehicle. Lodgment 1 at 17-21. On January 26, 2007, the jury found Petitioner guilty of Counts 2 and 4, but the court declared a mistrial on Counts 1 and 3 because the jury was deadlocked on those charges. Id. at 139-40; Lodgment 2 at 344-50. On May 14, 2007, Petitioner pleaded guilty to Count 1, robbery in an inhabited dwelling house, and the remaining allegations of Count 1 and the entirety of Count 3 were dismissed. Lodgment 1 at 99-101; Lodgment 2 at 406-08. On July 9, 2007, Petitioner was sentenced to thirteen years in prison. Lodgment 1 at 114; Lodgment 2 at 415-18.

         On July 26, 2007, Petitioner filed a timely notice of appeal to the California Court of Appeal and a request for appointment of appellate counsel. Lodgment 1 at 116-17. Petitioner alleged that the court erred when it refused to require a jail inmate to attend and testify because his testimony would have corroborated Petitioner's testimony and raised reasonable doubts about his guilt. Lodgment 3 at 15-20. On September 5, 2008, the California Court of Appeal, Fourth Appellate District, Division One, affirmed the judgment. Lodgment 6. Petitioner did not file a petition for review in the California Supreme Court. Lodgment 7 at 11, 13; see also Lodgments.

         On June 7, 2016, Petitioner constructively filed a petition for writ of habeas corpus in the San Diego County Superior Court, arguing that (1) he was mentally incapacitated to stand trial because he was in extreme pain while awaiting dental surgery and on mind-altering medication, and the court denied his request to postpone the trial; (2) he was provided with ineffective assistance of counsel during trial and plea agreement negotiations; (3) he was mentally incompetent to voluntarily enter into the plea agreement because the full details were not explained to him; (4) insufficient evidence was presented at trial to support the verdicts; and (5) there was judicial bias and judicial misconduct during the proceedings. Lodgment 7 at 39-89; Lodgment 8 at 2. On July 1, 2016, the Superior Court denied the petition as untimely because it was filed almost nine years after Petitioner was sentenced. Lodgment 8 at 3. The court also found that Petitioner failed to show good cause for the delay or that the claim fell within an exception to the timeliness bar. Id.

         On July 17, 2016, Petitioner constructively filed a motion for reconsideration of its July 1 ruling in the Superior Court, contending that the court applied inapplicable law and failed to address the full scope of the petition. Lodgment 9 at 1-2, 89. The Superior Court denied the motion to reconsider on August 5, 2016 because Petitioner failed to raise any new arguments or present facts that could not have been included in the prior petition. Lodgment 10.

         On August 29, 2016, Petitioner constructively filed his second state petition for writ of habeas corpus in the California Court of Appeal for the Fourth Appellate Division, asserting the same claims alleged in his first state habeas petition. Lodgment 11. On May 1, 2017, the state Court of Appeal denied the petition as procedurally barred for the following reasons: (1) untimely filed; (2) the claim of mental incompetence due to dental pain could have been raised at trial, but was not; (3) Petitioner did not obtain a certificate of probable cause to challenge the validity of a guilty plea in an appellate court; and (4) Petitioner's claim of insufficient evidence to support the verdicts could have been raised on appeal, but was not. Lodgment 12 at 2. Furthermore, the court stated that even if the petition was not procedurally barred, it would be denied because (1) challenges to the sufficiency of the evidence to support Petitioner's convictions are not cognizable in a habeas petition; and (2) for the remaining claims, Petitioner failed to sustain his “‘heavy burden' to plead a prima facie claim for relief by alleging with particularity the facts on which the claim is based and supporting the claim with declarations, trial transcripts, or other reasonably available documents.” Id.

         On October 8, 2016, Petitioner constructively filed his third state habeas petition in the California Supreme Court, asserting the same claims alleged in his first and second petitions. Lodgment 13. The California Supreme Court denied the petition on January 18, 2017 by citing to In re Robbins, 18 Cal.4th 770, 780 (1998); People v. Duvall, 9 Cal.4th 464, 474 (1995); In re Dixon, 41 Cal. 2d 756, 759 (1953); In re Swain, 34 Cal. 2d 300, 304 (1949); and In re Lindley, 29 Cal. 2d 709, 723 (1947). Lodgment 14.

         On February 16, 2017, Petitioner constructively filed the instant Petition. Pet. Petitioner asserts two grounds: (1) Petitioner was mentally incompetent and his plea agreement was coerced; and (2) there was insufficient evidence to support the jury's verdicts regarding gun possession. Pet. at 5. Additionally, Petitioner claims that (1) he was mentally incapacitated to stand trial because he was in extreme pain while awaiting dental surgery and on mind-altering medication, and the court denied his request to postpone the trial; (2) he was provided with ineffective assistance of counsel during trial and plea agreement negotiations; (3) he was mentally incompetent to voluntarily enter into the plea agreement because the full details were not explained to him; (4) insufficient evidence was presented at trial to support the verdicts; and (5) there was judicial bias and judicial misconduct during the proceedings. Id. at 22-47. Finally, Petitioner requests an evidentiary hearing. Id. at 35.

         SCOPE OF REVIEW

         Title 28, U.S.C. § 2254(a) sets forth the following scope of review for federal habeas corpus claims:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in ...

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