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Loftis v. Asuncion

United States District Court, S.D. California

May 25, 2018

DEBBIE ASUNCION, Warden, Respondent.



         Marquise Deangelo Loftis (hereinafter “Petitioner”) is a state prisoner proceeding pro se and in forma pauperis with a Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254.[1] (ECF No. 1.) Petitioner is currently serving a sentence of 22 years and 4 months in state prison following a 2010 guilty plea entered in the San Diego County Superior Court to attempted murder, carjacking, robbery and making a criminal threat, with admissions he used a firearm and inflicted great bodily injury. (Id. at 1-2; Lodgment No. 4, Clerk's Tr. [“CT”] at 167-70.) Petitioner claims his state and federal rights were violated because he did not have a competency hearing prior to entering his plea (claim one), he received ineffective assistance of counsel due to the failure of his trial counsel to investigate his mental condition which would have revealed he was incompetent to stand trial or enter a plea (claim two), the trial court abused its discretion in denying his motion to withdraw the plea because the prosecution did not refute his expert testimony showing he was not competent to enter a plea (claim three), his sentence is illegal because he was not competent to enter a plea (claim four), and the trial judge did not conduct a fair and impartial hearing on his motion to withdraw the plea (claim five). (ECF No. 1 at 7-21.)

         Respondent has filed a Motion to Dismiss the Petition, along with a Notice of Lodgment of the state court record and Petitioner's prison medical records. (ECF Nos. 11-12.) Respondent contends the Petition is facially untimely because it was filed nearly five years after the one-year statute of limitations began to run. (Memorandum of Points and Authorities in Support of Motion to Dismiss [“MTD Mem.”] at 6-17.) Respondent argues that: (a) statutory tolling is not available for Petitioner's state collateral review petitions because they were filed two and one-half years after the federal statute of limitations expired, (b) he is not entitled to equitable tolling based on his mental condition because his medical records indicate his condition is mild or moderate and has been effectively treated, and (c) the “actual innocence” exception to the statute of limitations does not apply because Petitioner has acknowledged that the evidence of his guilt is strong. (Id.)

         Petitioner has filed an Opposition. (ECF No. 15.) He concedes equitable tolling is necessary for his Petition to be timely, and argues it is available due to “lifelong organic brain/cognitive defects and severe mental illness” which prevent him from preparing and filing court pleadings. (Id. at 1.) He has also filed a Motion to Appoint Counsel contending his mental condition prevents him from adequately opposing the motion to dismiss without the assistance of counsel, and that counsel must be appointed if the Court conducts an evidentiary hearing or orders discovery on the issue of equitable tolling. (ECF No. 19.)

         For the following reasons, the Court finds that the records presented in support and opposition to the instant motion, which range from Petitioner's birth to the present, do not demonstrate a mental impairment sufficient to entitle him to equitable tolling, but even accepting as accurate and credible the antidotal evidence in his declarations that he suffered from such an impairment during the relevant time period, and allowing for statutory and equitable tolling to the fullest extent permissible under those facts, the Petition is untimely. The Court also finds the “actual innocence” exception to the statute of limitations does not excuse the untimely filing, and appointment of counsel is discretionary and unwarranted. Accordingly, Petitioner's Motion to Appoint Counsel is DENIED, Respondent's Motion to Dismiss is GRANTED, the Petition is DISMISSED with prejudice as untimely, and the Court DECLINES to issue a certificate of appealability.


         In a 17-count Second Amended Information filed in the San Diego County Superior Court on May 3, 2010, Petitioner was charged with seven counts of assault with a firearm in violation of California Penal Code § 254(a)(2) (counts 1, 4, 6, 8, 10, 11 and 14), six counts of robbery in violation of Penal Code § 211 (counts 2, 5, 7, 9, 12 and 15), one count of carjacking in violation of Penal Code § 215(a) (count 3), one count of attempted murder in violation of Penal Code § 187(a) (count 13), one count of making a criminal threat in violation of Penal Code § 422 (count 16), and one count of battery in violation of Penal Code § 242 (count 17). (CT 43-50.) Sentence enhancements alleged Petitioner personally used a handgun within the meaning of Penal Code § 12022.5(a), personally inflicted great bodily injury within the meaning of Penal Code § 12022.7(a), intentionally and personally discharged a handgun within the meaning of Penal Code § 12022.53(b), intentionally discharged a handgun within the meaning of Penal Code § 12022.53(c), and intentionally and personally discharged a handgun which proximately caused great bodily injury within the meaning of Penal Code § 12022.53(d). (Id.) The charges are summarized as follows:

Counts 1-7; June 21, 2009; carjacking; assault with a firearm; robbery
Nickolas Bernstein and his two passengers gave Petitioner and his friend a ride home after a party. When Petitioner got out he pointed a handgun at Nickolas' head, robbed all three men and took Bernstein's car.
Counts 8-9; June 26, 2009; assault with a firearm; robbery
Acel Cruz, the manager of a Chuck E. Cheese store, was counting receipts in his office when Petitioner entered, pointed a handgun at Cruz, and demanded money from an open safe and cash drawers.
Counts 10-12; July 15, 2009; assault with a firearm; robbery
Officers Ramiro Meza and Michael Kosak were working as Trolley Security Guards at the Encanto station when Petitioner approached Meza from behind, pointed a handgun at him, told him to get on the ground, and took his gun and ammunition clips.
Counts 13-15; July 18, 2009; attempted murder; assault with a firearm; robbery
Officer David Reynoso was working as a Trolley Security Guard at the Grossmont station when Petitioner pointed a handgun at him and ordered him to give him his gun. Reynoso said “ok” and moved his hand toward his gun, at which point Petitioner shot him once in the shoulder and once in the groin, and took his gun.
Counts 16-17; July 20, 2009; making a criminal threat; battery
Officer Donny Lamora was working as a Trolley Security Officer at the 62nd street station when Petitioner approached, punched Lamora, formed the shape of a gun with his hand, and told him several times he was going to be the next guard to be shot.

(CT 369-71.)

         A jury trial began on Monday, May 3, 2010, and a jury was empaneled at the end of the day on Tuesday, May 4. (CT 409-14.) Trial resumed on Thursday, May 6, the first and only day testimony was presented, with the prosecution calling eight witnesses. (CT 415-18.) Nickolas Bernstein testified that he was driving his car with two friends as passengers when they were asked for a ride by Petitioner, who he identified in court, and a man with Petitioner. (Lodgment No. 5, Reporter's Tr. [“RT”] at 112-15, 126.) When they arrived where Petitioner asked to be dropped off, he pulled out a handgun, pointed it at Bernstein's head, robbed him of his money and cell phone, and drove off in his car. (RT 115-20.) Bernstein's two friends testified to the same events, both identified Petitioner in court, and both testified he robbed them of their money and cell phones at gunpoint. (RT 143-66.) Police officers and a criminalist testified that Bernstein's vehicle was found with significant damage after being involved in a hit-and-run collision shortly after it was stolen, that a tube of Chapstick lip balm which did not belong to any of the victims and which contained Petitioner's DNA was found inside the car where Petitioner was seated when Bernstein gave him a ride, and that Bernstein and his two friends thereafter identified Petitioner from a photographic lineup. (RT 179-82, 188-94, 210-11, 220.) The trial was adjourned for the day.

         The next day, Friday, May 7, Petitioner, who was in custody, did not appear due to “a medical issue, ” and the trial was continued until Monday, May 10. (CT 419.) Petitioner appeared in jail clothes that Monday, and his court-appointed defense counsel, Daniel Cohen, informed the court Petitioner had not appeared the previous Friday because he had attempted to hang himself Friday morning, that he now appeared depressed and would provide only yes or no answers to counsel's questions, and although he had been engaged and interested in plea negotiations on the previous Thursday he now said he did not care about anything and just wanted to die. (RT 244-46; CT 233-34.) Attorney Cohen informed the court that Petitioner had been given mood stabilizers and antidepressant drugs following his suicide attempt, and said: “In my opinion, it seemed to be that I was having a very hard time communicating with him in any sort of meaningful way that could assist me in the trial.” (RT 246.) Attorney Cohen said he was not aware of any mental issues prior to the suicide attempt, although he was aware Petitioner had twice previously been placed on suicide watch at the jail based on statements he made to his girlfriend and in a letter. (RT 247, 253.) The following exchanged then occurred:

Trial Judge: In terms of Mr. Loftis and his mental health status at the present time, I have to indicate that as a result of one of the motions in this case, I've had an opportunity to review recordings, audio recordings, of a number of conversations Mr. Loftis had. They appear to be conversations in later summer, maybe early fall of last year, and from those, it would be clear to any reasonable listener that Mr. Loftis is quite an intelligent, articulate person. So I'm kind of surprised at this point that we're addressing his ability to comprehend the proceedings due to some form of mental illness. And apparently, it isn't that. The conclusion I reach from your comments is that he's depressed, and apparently he's depressed about the nature of the evidence in the case and the responsibility that he suffer some severe punishment. Would that be a fair assessment of the situation?
Attorney Cohen: Yes and no. I think that the court is correct, and I think Mr. Loftis is an intelligent person, and I think he has the capabilities of understanding what's going on. At least in the past, I haven't made a 1368 motion[2] because of the fact that he has been engaged. [¶] Where I differ from the court is I don't feel this is a run-of-the-mill depression, mundane blues. I'm afraid that the depression he's suffering from would qualify as a mental illness, and true depression can be extremely debilitating. Just because it's something that some people suffer from and something that's treatable doesn't mean that it's not a mental illness, that it's not something that could affect the proceedings and his ability to understand what's going on and to meaningfully communicate with me.

(RT 247-48.)

         The trial judge then questioned Petitioner regarding his mental state and the effects of his medication. (RT 248-52.) Petitioner said he did not know why he decided not to dress out for court that day, indicated that after his suicide attempt he was given medication for depression, to stabilize his mood and to help him sleep, and when asked about his present mental state said: “I'm feeling bad because I'm never going to see my son again.” (Id.) The judge ruled the trial would continue, and called a 15-minute recess for Petitioner to dress out if he wished to do so. (RT 252-54.)

         After the recess, Petitioner entered a guilty plea pursuant to a plea agreement. (RT 255-64.) He waived his constitutional rights and pleaded guilty to attempted murder, carjacking, making a criminal threat and two counts of robbery, and admitted he personally used a firearm and personally inflicted great bodily injury. (Id.) The twelve remaining counts (seven counts of assault with a firearm, four counts of robbery, and one count of battery) were dismissed, and the matter was continued to July 8, 2010 for sentencing on a stipulated term of 22 years and 4 months in prison. (Id.) Immediately after he entered the plea, the trial judge stated: “I do find, Mr. Loftis, that you are in full possession of your faculties. You've made a knowing, intelligent, and voluntary waiver of your rights. I do accept the pleas of guilty, the admission on the special allegations that are attendant to those charges that you pled guilty to, and I accept your pleas of guilty.” (RT 262.) Attorney Cohen signed the change of plea form attesting he had explained the contents to Petitioner, that they had discussed the charges, possible defenses and consequences of the plea, and that he concurred in the plea and the waiver of constitutional rights. (CT 169.) Three days later Petitioner participated in a “free talk” with the prosecution in which he admitted he committed the crimes charged, and admitted involvement in an uncharged bank robbery. (Lodgment No. 4, Augmented Clerk's Tr. at 8-9, 24-46.)

         On July 8, 2010, the date set for sentencing, attorney Cohen informed the court that Petitioner wished to file a pro se motion to withdraw his guilty plea. (CT 422.) Attorney Cohen did not join the motion, stating: “I don't believe there's a basis for [it].” (Lodgment No. 5, Augmented Reporter's Tr., July 8, 2010 at 4.) He was relieved at that time, and new counsel, attorney Gary Roberts, was appointed on July 18, 2010. (CT 422.)

         Attorney Roberts filed a motion to withdraw the plea on October 20, 2010. (CT 175-264.) The motion alleged Petitioner spent the weekend before his plea in a constantly illuminated “safety cell, aka, a rubber room” without clothing where he had difficulty sleeping, and at the time of the plea “had insufficient sleep and clarity of mind to be able to make a responsible decision whether to take a plea bargain requiring him to serve 22 years and four months in prison at 85% time.” (CT 268-69.) It was supported by jail medical records and a representation that Dr. Ellen Stein, a licensed clinical and forensic psychologist, was prepared to testify that Petitioner has borderline personality disorder. (CT 175-264.) On October 21, 2010, the motion was augmented to add an allegation of ineffective assistance of counsel on the basis that: “It is difficult to understand how attorney Cohen could concur in the defendant's plea and waiver of constitutional rights just after attorney Cohen said to the court, ‘I was having a very hard time communicating with him in any sort of meaningful way that could assist me in the trial.'” (CT 265-69.)

         On November 24, 2010, the trial judge held an evidentiary hearing on the motion to withdraw the guilty plea, at which Dr. Stein, Petitioner and a defense investigator testified. (RT 266-423.) Dr. Stein testified she diagnosed Petitioner with borderline personality disorder, thought disorder, depression and traumatic stress disorder, that his being housed in an isolation cell the weekend before his guilty plea as a result of his suicide attempt may have disoriented him, and it was unclear whether, by the time he entered his plea, he had recovered from any possible disorientation or even whether it would be obvious to a layperson if he had. (RT 275-83.) She opined that the trial court failed to ask the necessary questions to assess his competency, and neglected the effect of his medications when questioning him and making the determination whether to continue the trial. (RT 286.) Attorney Cohen represented that Petitioner was on mood stabilizers and antidepressants, but she clarified he was on mood stabilizers and antipsychotics. (Id.) Dr. Stein opined that a person with borderline personality disorder could knowingly and intelligently sign a plea agreement (RT 303-04), but that Petitioner's “position was potentially quite compromised, and no one inquired of that.” (RT 335.) Several times she was asked directly if in her opinion the plea was not knowing and voluntarily (RT 334-35, 338, 350), but merely stated: “It wasn't the ideal condition under which to have him make a voluntary, knowing judgment. . . . It appeared to me that would not have been the day to take an affirmation of his decision.” (RT 350-51.) The parties disagreed in their appellate briefs whether Dr. Stein offered a definitive opinion on the ultimate issue whether the plea was knowing and voluntary. (Lodgment No. 1 at 16; Lodgment No. 2 at 17 n. 22.)

         On cross-examination, Dr. Stein said she took into consideration that: (a) Petitioner had received an “A” in a criminal law course at a San Diego community college; (b) jail records indicated that at 4:12 a.m. on May 10th he was alert, oriented, responsive and cooperative, and when he was returned to jail after entering his plea that day he told jail staff he took the deal for 22 years and that: “I know I can't beat them. I'm not suicidal anymore.”; (d) the plea bargain he accepted had been on the table for the previous 90 days; (e) after the jury was selected Petitioner was recorded saying: “I'm convicted, ” “I'm definitely going to jail for life, ” “They're going to see me in hell before I do life in a cell, ” and “I got a problem accepting things that I don't want to accept”; and (f) on the evening of the first and only day of trial testimony he was recorded asking his girlfriend: “How do you feel about me signing a deal . . . somewhere in the 20s, 22 maybe. It's the same deal, but the deal ain't going to be there much longer, ” and telling her: “It's kind of hard to fight when you got three people coming there and saying that it's me and D.N.A.” (RT 305, 309-16.)

         A defense investigator testified that the safety cell in which Petitioner was housed the weekend before he entered his guilty plea is constantly illuminated and monitored by video equipment, is about eight feet square with rubber-coated walls and floor, and has a hole in the floor for a toilet. (RT 354-64.) Petitioner testifi ed that he w as t a ken t o a h o s pit al after his suicide attempt on Friday morning, and was placed in a safety cell wearing only a smock when he returned to jail later that day. (RT 380.) When he tied the smock around his neck it was taken away, and he remained in the cell naked until Sunday morning when he was moved to an observation cell and medicated, where he remained until he was taken to court on Monday morning. (RT 381-83.) He said that when he signed the change of plea form attorney Cohen had to check the boxes for him because he was crying, and told him if he signed the plea agreement it would stop the trial and they could still negotiate with the District Attorney to lower his sentence. (RT 383-85.) He believed at that time that if the trial continued he would be convicted and sentenced to life in prison. (RT 385.)

         He said a West Coast Crips gang member bullied him into committing the crimes, even though Petitioner was not a gang member, but attorney Cohen told him that a duress defense on that basis would be hard to prove. (RT 402-06.) Petitioner was disappointed that attorney Cohen wanted to stick with an “I didn't do it” defense, which Petitioner thought would cause him to spend his life in prison, and felt he had no control over the case. (RT 408-09.) He said he was desperate to “put the brakes on” the trial, but denied that was why he tried to kill himself. (RT 409.) He said he took the deal because he knew he was going to be convicted, and participated in the free talk with the prosecutor three days after he entered his plea believing it was part of the negotiation to lower his sentence. (Lodgment No. 5, Augmented Reporter's Tr., Nov. 24, 2010 at 21, 27.) The trial judge denied the motion to withdraw the plea, stating:

And Mr. Loftis, I've gotten to know you a little bit just because I heard a lot of your conversations that have been taped, and I appreciate the impact that your incarceration and the charges have had on you. And I'm not dismissing that, and I want to assure you I listened carefully as your attorney presented the testimony of Dr. Stein.
It was clear to me when I saw you May 10th that you were really down. There was no doubt in my mind. But the question that I was faced with was should the trial continue or was your mental state such that you simply couldn't rationally continue with the trial and assist your attorney. And the purpose of my questions were to reach a conclusion regarding that issue. And I reached the conclusion after that brief interview that even though you truly were down, there was a lot of pressure on you, things were closing in, that you were lucid, coherent. You understood what I was saying, and even though you were reluctant to talk, you would talk. And that's why I said the trial is going to continue.
Mr. Roberts has made a very creative and powerful argument, “But, judge, you missed the important facts. It wasn't just the way Mr. Loftis appeared in the courtroom, but it was what had happened to him or what he had done to himself over the past four days.” And I appreciate the time and effort he's put into this on your behalf to try to flush out those circumstances.
But my conclusion, after looking at the submission from your attorney, the submission from the District Attorney, and the testimony of Dr. Stein, is that my decision to continue the trial and my conclusion that you made a knowing, intelligent, and voluntary plea of guilty was on firm ground.
And simply because when I went through very carefully the records that Mr. Roberts presented and the records that Ms. Irving presented, it seems to me that you were thinking about your case. You were aware of the facts of your case. You had talked to Mr. Cohen. Many of the jail tapes talked about getting feedback whether the case was going good, whether the case was going bad, whether the evidence was strong or weak.
During the jury selection, you got the feeling that things weren't going too well just because of your impression of the jurors. You communicated that to a friend. May 6th, you listened to Ms. Irving make an opening statement where she pieced everything together, put on the D.N.A. evidence, and put on the evidence of Mr. Bernstein and the other people that were in the car that you hijacked.
After that, Mr. Cohen made mention of the fact that after the May 6th hearing, you seemed to be interested in the plea bargain. And that's confirmed by your phone call that evening to a friend, that you really are seeing the evidence unfold, and there's just too much evidence. The deal is not going to be on the table too much longer.
I'm not dismissing at all the pressure that you were under, but I have to consider the pressure that any defendant is under when he's charged with extremely serious crimes, and he's facing trial, and the evidence looks kind of overwhelming. That's pressure, per se, based upon the circumstance that you find yourself in. I don't find that that pressure, based upon what Dr. Stein says is a borderline personality disorder, triggered something to the point where you did not understand what the plea was, what your rights were, what the consequences were.
It's quite clear you knew it was going to be 22 years because that's what you'd been mulling over for some time and discussing, particularly with Marissa.[3] You were certainly aware of the circumstances of your case because you listened to the full opening statement of Ms. Irving. In terms of voluntary, I thought maybe Dr. Stein would say, “yes, judge, this became involuntary.” But my feeling is that what I did on May 10th was to assure myself that you could continue with the trial. I felt comfortable that you understood my questions. You were giving lucid, coherent responses. And that's all I wanted to do, was continue your day in court, so to speak.
And then I was confronted with your decision to change your plea to guilty. Not only did I review the change of plea form with you, but I asked you some additional questions when I asked you if you understood everything, and I asked you specifically, and other promises made? I heard nothing about, “well, I'm told that this isn't really the plea agreement; that I can whittle it down by discussing it with my attorney.” [¶] This is my time now. Your attorney has had several hours to present your case.
You indicated through your attorney that you were really frustrated with Mr. Cohen. From what I gather in terms of your statements as to your factual basis for your defense of duress, that was just magical thinking on your part that that would be a viable defense. Any reasonable attorney, any competent attorney, would say it's not going to work. When somebody says “you've got to show that you're a good value to the gang, you've got to ...

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