Opinion
Case No. CV 10-1779-GW (JPR)
03-07-2014
ISAIAH CORTEZ POSEY, Petitioner, v. K. HARRINGTON, Warden, Respondent.
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF U.S.
MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Petition ("FAP"), records on file, and Report and Recommendation ("R&R") of the U.S. Magistrate Judge. On November 20, 2013, Petitioner filed Objections to the Report and Recommendation and a Request for a Certificate of Appealability, in both of which he simply reargues the merits of his three claims even though the Magistrate Judge did not reach the merits of two of them, finding that they were procedurally defaulted and that one was also untimely under 28 U.S.C. § 2244(d)(1).
Although Petitioner's Objections therefore provide no basis for not accepting the Magistrate Judge's findings and recommendations, two recent Ninth Circuit decisions require some discussion. In Nguyen v. Curry, ___ F.3d ____, 2013 WL 6246285, at *9 (9th Cir. Dec. 4, 2013), the Ninth Circuit held that a claim that appellate counsel was ineffective for failing to raise a double jeopardy argument on direct appeal related back to Petitioner's claim that his rights were violated under the Double Jeopardy Clause - which in turn related back to the original petition - and therefore was not barred by § 2244(d)(l)'s one-year limitation period.
In this case, the Court earlier accepted the Magistrate Judge's reasoning, in the June 1, 2012 R&R recommending that Respondent's motion to dismiss the FAP be denied, that Petitioner's multilayered claim of ineffective assistance of counsel (ground two of the FAP) - including a subclaim that counsel failed to object to the trial court's aiding-and-abetting instructions - did not relate back to his claim that the trial court erred in giving those instructions, which the Court found did relate back to the original Petition. (See Nov. 29, 2012 Order Accepting Findings & Recommendations of U.S. Magistrate Judge (docket No. 52); see also June 1, 2012 R&R (docket No. 49) at 10-11.) That finding might be in tension with Nguyen.
Nguyen could potentially affect only the ineffective-assistance-of-counsel subclaim concerning the aiding-and-abetting instructions. All of Petitioner's other ineffective-assistance-of-counsel subclaims clearly do not relate back to the original Petition, for the reasons the Court found when it accepted the Magistrate Judge's June 2012 R&R.
Nguyen, however, which contains very little analysis on this issue, see 2013 WL 6246285, at *8-9, might conflict with the Ninth Circuit's earlier decision in Schneider v. McDaniel, 674 F.3d 1144 (9th Cir.), cert, denied, 133 S. Ct. 579 (2012), which the Magistrate Judge relied on in the June 2012 R&R (see June 1, 2012 R&R at 11) but which Nguyen does not discuss or even cite. Schneider held that a habeas petitioner's various ineffective-assistance-of-counsel claims based on trial counsel's failure to take certain actions or make certain objections did not share a common core of operative facts with claims resting on the events at trial that he failed to object to or take action on. 674 F.3d at 1151-52 (holding that new claims were untimely because they did not relate back to claims in original petition). Of course, when a subsequent three-judge-panel opinion conflicts with the opinion of an earlier three-judge panel, it is the earlier decision that controls. Avaqyan v. Holder, 646 F.3d 672, 677 (9th Cir. 2011) . Moreover, Schneider may be distinguishable from Nguyen in that in it, as here, the actions that counsel was accused of being ineffective for failing to take were not precisely the same as the underlying substantive claims, see 674 F.3d at 1151-52, whereas in Nguyen it appears they were, see 2013 WL 6246285, at *8-9. In any event, the Court need not decide whether it erred in finding that the jury-instruction subclaim of Petitioner's ineffective-assistance-of-counsel claim did not relate back to the Petition, because the Magistrate Judge has found in the most recent R&R (see Oct. 25, 2013 R&R (docket No. 75) at 26-29) - correctly - that the entire ineffective-assistance-of-counsel claim is procedurally defaulted as well. For that reason, the Magistrate Judge correctly declined to reach the merits of the claim.
Petitioner has not made any sort of argument based on Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012), or Trevino v. Thaler, 569 U.S. ___, 133 S. Ct. 1911, 185 L. Ed. 2d 1044 (2013).
--------
In Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013), the Ninth Circuit recently held that a magistrate judge "affirmatively misled" a petitioner into believing that his amended petition would be timely by granting him leave to file it within a certain time period without warning him that it might nonetheless be time barred under § 2244(d)(1). In this case, a previously assigned magistrate judge similarly granted Petitioner leave to file the FAP by a certain deadline, which Petitioner met, without warning him that its claims might nonetheless be untimely. (See July 27, 2010 Order Staying Proceedings (docket No. 24).) Under Sossa, then, the Magistrate Judge's conclusion that Petitioner's ineffective-assistance-of-counsel claim is untimely under § 2244(d)(1) (see Oct. 25, 2013 R&R at 15-18) might be wrong (although Petitioner has never made this argument). But again, any error is necessarily harmless because, as noted above and for the reasons in the October 25, 2013 R&R, the Magistrate Judge correctly concluded that the claim is procedurally defaulted and therefore cannot be considered on the merits in any event.
Accordingly, having made a de novo determination of the parts of the Report and Recommendation to which Petitioner objects, the Court accepts the findings and recommendations of the Magistrate Judge except her conclusion that ground two of the FAP, alleging ineffective assistance of counsel, is untimely under § 2244(d)(1).
IT THEREFORE IS ORDERED that Petitioner's request for an evidentiary hearing is DENIED and Judgment be entered DENYING the First Amended Petition and dismissing this action with prejudice.
__________
GEORGE H. WU
U.S. DISTRICT JUDGE'