United States District Court, S.D. California
PHILLIP L. DORSEY, Plaintiff,
W.J. SULLIVAN, Defendant.
REPORT AND RECOMMENDATION FOR ORDER GRANTING
RESPONDENT'S MOTION TO DISMISS [ECF NO. 6]
BARBARA L. MAJOR UNITED STATES MAGISTRATE JUDGE
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.
AND PROCEDURAL BACKGROUND
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.
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
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.
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.
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.
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.
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.
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 ...