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Simon v. Uribe

United States District Court, N.D. California

July 25, 2019

MAR-NIQUE SIMON, Petitioner,
v.
DOMINGO URIBE, Warden, Respondent.

          ORDER FINDING CAUSE AND PREJUDICE TO EXCUSE PROCEDURAL DEFAULT

          WILLIAM ALSUP, UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         Petitioner is a state prisoner serving a twenty-year sentence pursuant to a plea deal. He pleaded nolo contendere to second-degree robbery and attempted murder with use of a deadly weapon and infliction of great bodily injury. He seeks federal habeas corpus relief pursuant to 28 U.S.C. § 2254. This order finds the procedural default of petitioner's first two claims excused due to cause and prejudice on account of his mental condition.

         STATEMENT

         1. Factual Background.

         In November 2002, Ibis Brignardello and her husband, Luis Perez Gardella, approached a church in Berkeley and found that it was locked. Petitioner Mar-Nique Simon allegedly approached the couple with a gun and said something to them in English. Ibis and Luis did not understand, because they spoke only Spanish. Petitioner tried to grab Ibis, but Luis stood between them. Petitioner held the gun toward Luis as the couple tried to get back to their car. Ibis attempted to get into the car, but petitioner prevented her from doing so. He demanded money from them. Luis handed the little money he had in his pocket over to petitioner. Ibis managed to get inside the car and call the police using the cell phone that was inside (Dkt. No. 110-1, Exh. 20 at 9-10, 12-15, 18-20, 30-38).

         When Ibis was inside the car with the door closed, petitioner followed Luis around with a gun pointed at Luis's midsection. Luis heard the gun click, then kicked the gun out of petitioner's hand. The clip fell to one side and the gun to the other. Luis grabbed the clip. After a few minutes, Luis kicked petitioner in the stomach. Petitioner began hitting Luis's head with the gun. Luis fell to the ground and, each time he tried to get up, petitioner hit him back down. On the ground, Luis tried to protect himself by holding his arms above his head, but petitioner kept hitting Luis with his gun. Even as Luis stopped moving on the ground and police sirens went by, petitioner continued beating Luis. When the police arrived and petitioner fled, Luis handed the police the clip from petitioner's gun. Luis went to the hospital by ambulance. The cuts on his head and face required sixty-five staples and twenty-three stitches. He also received stitches on his right arm. Ibis identified petitioner as Luis's assailant (id. at 21-23, 25-26, 38-47, 49).

         2. Procedural Background.

         In July 2003, petitioner was charged with one count of attempted murder, two counts of robbery, one count of assault with a firearm, and two counts of kidnapping for robbery. Petitioner was represented by Attorney Edward Bell. According to petitioner, just before his sixteenth birthday the trial court stated that he would be tried as an adult. Petitioner pleaded nolo contendere to robbery and attempted murder with use of a firearm and infliction of great bodily injury in December 2003 when he was sixteen years old. At the hearing, but before petitioner entered his plea, Judge Julie Conger said:

I saw your reaction when I discussed the fact that these were two strikes, but that's the facts of life. This is the best that is going to happen. The offer is only open this morning, and I can tell you from having sat on the bench for 21 years that I concur with your attorney that it is in your best interests to enter this plea.

         Judge Conger also addressed petitioner's waiver of his rights and indicated that she was “satisfied that [his] waiver [was] knowing and voluntary.” Petitioner's “Waiver on Plea of Guilty/No Contest, ” did not mention his competency at the time of the plea. In exchange for the plea, the prosecution dropped the remaining charges. Petitioner was sentenced to twenty years in prison with possibility of parole at seventeen years. He received 470 days credit for time already served. Petitioner did not appeal (Dkt. Nos. 1 at 2, 11, 27-28; 105 at 1; 110-1, Exhs. 3-4, 18).

         Three years later, Dr. Myla Young performed a neuropsychological test on petitioner and found that his intellectual functioning was in the “Extremely Low, ” first percentile, “Formally Mentally Retarded” range. Subsequently, petitioner, proceeding without counsel, filed a petition for writ of habeas corpus in Alameda County Superior Court. Petitioner submitted two claims: (1) he was incompetent to plead nolo contendere; and (2) his counsel was ineffective for failing to adequately investigate his competency, to hold a competency hearing, and to properly explain the consequences of the plea. The petition was denied as untimely without cause for delay, citing In re Clark, 5 Cal.4th 750 (1993), and, alternatively, as failing to state a prima facie case for relief. A few months later, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, which was denied. The state appellate court found the petition was untimely and that Dr. Young's report was preliminary and thus insufficient to find mental incompetence at the time of the plea. Petitioner then filed a petition for writ of habeas corpus in the California Supreme Court. The petition was denied without comment but with citations to In re Robbins, 18 Cal.4th 770, 780 (1998), Ex parte Swain, 34 Cal. 2d 300');">34 Cal. 2d 300, 304 (1949), and People v. Duvall, 9 Cal.4th 464, 474 (1995) (Dkt. No. 5-1, Exhs. 1-3; 4 at 1, Appellate Ct. Op. at 2, 4; 5).

         In December 2009, petitioner filed a pro se petition for writ of habeas corpus in federal court. Petitioner argued: (1) he lacked competence to plead nolo contendere and did not do so knowingly and voluntarily; (2) he received ineffective assistance of counsel for his attorney's failure to investigate his incompetence to plead nolo contendere, to request a competency hearing, or to fully explain the consequences of the plea deal; and (3) he received ineffective assistance of counsel for his attorney's failure to challenge the state court's jurisdiction to try him as an adult. Respondent filed a motion to dismiss the petition as untimely pursuant to 28 U.S.C. § 2244(d)(1)(A). In response, petitioner submitted a mental health report suggesting that he was mentally impaired. After an assignment to Judge Thelton Henderson, an order found the report too ambiguous to justify equitable tolling and granted respondent's motion to dismiss the petition as untimely for failure to satisfy the one-year statute of limitations under the Anti-Terrorism and Effective Death Penalty Act of 1996 (Dkt. Nos. 1 at 5-12; 5 at 1; 10 at 1-2, 5-9).

         Subsequently, our court of appeals granted a certificate of appealability to determine whether the petition was properly dismissed, including whether Judge Henderson should have held an evidentiary hearing to determine whether petitioner's alleged mental incompetence prevented him from filing his petition within the limitations period. Our court of appeals then reversed Judge Henderson's decision, and remanded for further factual development, to expand the record, engage in discovery, or to hold an evidentiary hearing on the topic of whether petitioner was entitled to equitable tolling on account of his alleged mental impairment. See Simon v. Uribe, 528 Fed.Appx. 764 (9th Cir. 2013). Upon remand, Judge Henderson appointed counsel for petitioner. During a subsequent evidentiary hearing, experts presented testimony on the issue of petitioner's mental ...


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