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Wolf v. Ndoh

United States District Court, C.D. California

November 15, 2017

JACOB D. WOLF, Petitioner,
v.
ROSEMARY NDOH, Warden, Respondent.

          MEMORANDUM DECISION AND ORDER GRANTING MOTION TO DISMISS AND DISMISSING ACTION WITH PREJUDICE

          JEAN ROSENBLUTH, U.S. MAGISTRATE JUDGE.

         PROCEEDINGS

         On January 25, 2017, Petitioner constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody.[1]On May 3, Respondent moved to dismiss the Petition, arguing that it is time barred. On May 17, Petitioner filed opposition. Respondent filed a reply on June 9. On June 15, Petitioner filed a request to amend his opposition, which the Court has read and considered.

         The parties consented to the jurisdiction of the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c)(1). (See Pet'r's Consent to Proceed Before U.S. Magis. Judge at 1, Feb. 13, 2017; Resp't's Consent to Proceed Before U.S. Magis. Judge at 1, May 3, 2017.)

         For the reasons discussed below, the Court denies the Petition as untimely and dismisses this action with prejudice.

         BACKGROUND

         Petitioner pleaded no contest in Los Angeles County Superior Court on December 12, 2014, to making criminal threats and stalking. (Pet. at 2; Lodged Doc. 1.)[2] He was sentenced to 12 years and four months in state prison. (Pet. at 2; Lodged Doc. 1 at 1.) He filed a motion for a certificate of probable cause in the superior court on December 22, 2014 (Lodged Doc. 5; Lodged Doc. 6 at 2-3), which was denied on January 7, 2015 (Lodged Doc. 6 at 1). Before that, he filed a notice of appeal on December 30, 2014. (Lodged Doc. 3.) The appeal was dismissed on April 29, 2015, because Petitioner had not obtained a certificate of probable cause, as required by Rule 8.304(b) of the California Rules of Court and Penal Code section 1237.5. (See Lodged Doc. 4 (order to show cause)); Cal.App. Cts. Case Info., http:// appellatecases.courtinfo.ca.gov/search/case/ dockets.cfm?dist=2&docid=2098497&docno=B261515 (last visited Nov. 13, 2017) (showing dismissal order filed).

         On January 29, 2015, an attorney with the California Appellate Project, unaware of Petitioner's incomplete December 30 notice of appeal, filed a notice of appeal in the superior court on Petitioner's behalf. (See Lodged Doc. 9 at 28.) It was rejected as a “duplicate” on February 4, 2015. (See id. at 35-36.) On May 21, 2015, Petitioner filed another notice of appeal and request for certificate of probable cause in the superior court. (Lodged Doc. 7 at 4-11.) That court denied his request on June 2, 2015 (id. at 5, 11), and his notice of appeal was “not filed” on June 8 because it was “received after the expiration of the sixty (60) day period prescribed for filing a notice” (id. at 11). On May 22, 2015, he filed a letter in the superior court stating that he “need[ed] to withdraw [his] plea and get back into court.” (Req. to Amend at 12-13.) The court of appeal construed the letter as a petition for writ of mandate and request for rehearing, denying both on July 1, 2015, for failure “to state facts sufficient to warrant relief” or “provide a record adequate for review.” (Id. at 14.) On June 8, 2015, he filed a motion for relief from default for filing a late notice (id. at 1-2), which the court of appeal construed as a “petition for writ of late notice of appeal” and denied on August 31 (Lodged Doc. 8). On August 28, 2015, he filed a petition for a writ of mandate, which the court of appeal denied on September 28. (Lodged Doc. 13.)[3] On September 4, 2015, he filed through counsel a motion for reconsideration of his application for relief from default (Lodged Doc. 9), which the appellate court denied on September 8 (Lodged Doc. 10).

         Petitioner constructively filed a habeas petition in the state superior court on January 5, 2016, raising a single claim, ineffective assistance of trial counsel.[4] (Lodged Doc. 11 at 3, 21.) He argued that his counsel was ineffective in two respects: counsel failed to check certain boxes on his felony advisement of rights, waiver, and plea form, and thus “[t]here is nothing . . . that shows [he] waived any of his constitutional rights” (id. at 3-5); and counsel failed to “advise[ him] to accept [an] original plea offer of 4 years or at least to finish his trial so as to leave intact all of his appeal rights” (id. at 24).

         On February 18, 2016, the superior court denied the petition for “fail[ure] to state [a] claim upon which relief can be granted.” (Pet., pt. 3 at 28.) Petitioner constructively filed a habeas petition in the court of appeal on April 5, 2016, raising the same claim (Lodged Doc. 14; see Lodged Doc. 18 at 8); the court summarily denied it on April 18 (Lodged Doc. 15). On October 11, 2016, now represented by counsel, Petitioner filed a habeas petition in the supreme court, adding more detail but still basing his ineffective-assistance claim on the same arguments and not raising any other claims. (See Lodged Doc. 16.) The state supreme court summarily denied the petition on December 14, 2016. (Lodged Doc. 17.)

         Petitioner's federal Petition raises the same claim he raised in his state petitions.

         PETITIONER'S CLAIM

         Petitioner was deprived of the effective assistance of counsel during the plea process. (Pet. at 4, 15-17.)

         DISCUSSION

         I. Applicable Law

         The Antiterrorism and Effective Death Penalty Act sets forth a one-year limitation period for filing a federal habeas petition and specifies that the period runs from the latest of the following dates:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1).

         AEDPA includes a statutory tolling provision that suspends the limitation period for the time during which a properly filed application for postconviction or other collateral review is pending in state court. § 2244(d)(2); see Waldrip v. Hall, 548 F.3d 729, 734 (9th Cir. 2008). An application is “pending” until it has achieved final resolution through the state's postconviction procedures. Carey v. Saffold, 536 U.S. 214, 220 (2002). In California, a state habeas petition remains pending between a lower court's denial of it and the filing of a habeas petition in a higher state court as long as that period is “reasonable.” Evans v. Chavis, 546 U.S. 189, 191-92 (2006). Periods of up to 60 days are generally presumptively reasonable. Cf. id. at 201 (holding unexplained six-month delay unreasonable compared to “short[er] periods of time, ” such as 30 to 60 days, “that most States provide for filing an appeal to the state supreme court” (citation and alteration omitted)). Finally, the limitation period is not tolled between the time a decision becomes final on direct appeal and when a ...


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