Opinion
2:20-cv-01516-YY
09-22-2023
JASON DUNN, Petitioner, v. TYLER BLEWETT, Superintendent, Respondent.
FINDINGS AND RECOMMENDATION
YOULEE YIM YOU, UNITED STATES MAGISTRATE JUDGE
FINDINGS
Petitioner, an adult in custody at the Two Rivers Correctional Institution, brings this 28 U.S.C. § 2254 habeas corpus action challenging his 2013 Multnomah County conviction on a plea of nolo contendere to charges of attempted sexual penetration and sexual abuse in the first degree. For the reasons that follow, the Petition for Writ of Habeas Corpus should be DENIED.
I. Background
On April 9, 2013, a Multnomah County grand jury indicted petitioner on three counts of sexual abuse in the first degree and one count each of unlawful sexual penetration, sodomy in the first degree, incest, and recklessly endangering another person. Respondent's Exhibit (“Resp. Exh.”) 102, ECF No. 14, pp. 1-3. In each count, the victim was identified as petitioner's then four-year-old daughter. Resp Exh. 102.
On September 27, 2013, following a settlement conference with petitioner, his attorney, the prosecutor, and the judge, petitioner opted to plead “no contest” to one count each of attempted unlawful sexual penetration in the first degree and sexual abuse in the first degree. Resp. Exh. 103. In exchange, the state agreed to seek dismissal of the remaining charges, and the parties agreed to a stipulated sentence of 204 months of imprisonment. Resp. Exh. 103. Following a detailed colloquy with petitioner on the record, the judge accepted petitioner's plea. Resp Exh. 104. On October 29, 2013, the judge conducted a sentencing hearing and imposed the 204-month sentence agreed to by the parties. Resp. Exh. 105. Petitioner did not file a direct appeal.
Petitioner was facing a possible sentence of 600 months. Resp. Exh. 133.
On March 5, 2016, petitioner filed a petition for state post-conviction relief (“PCR”), accompanied by a request for appointment of counsel. Resp. Exh. 106. The PCR court initially issued an order to show cause why the petition should not be dismissed as untimely. Resp. Exh. 107. The PCR court then appointed counsel, who ultimately filed an amended PCR petition. Resp. Exhs. 109, 111. PCR counsel acknowledged the petition was untimely, but alleged that petitioner qualified for an exception to the limitation period, namely the “escape clause” under Or. Rev. Stat. § 138.510(3), which provides that a petition may be filed beyond the two-year limitation period if the PCR court determines that the grounds for relief “could not reasonably have been raised” within the limitation period. Resp. Exh. 111. The amended PCR petition alleged petitioner's mental condition prevented him from understanding and asserting his rights to post-conviction relief within the limitation period. Resp. Exh. 111, pp. 3-4. The amended petition further alleged that petitioner's trial counsel was ineffective in several respects by not ensuring that petitioner's pleas were knowing and voluntary. Resp. Exh. 111, pp. 4-5.
The PCR court conducted an evidentiary hearing at which petitioner submitted exhibits, including his own declaration, his medical records from the Oregon Department of Corrections, a declaration from his former cellmate, DNA results that were provided to his trial counsel in discovery, and a report from a potential defense expert noting suggestiveness in the victim's interviews. Resp. Exhs. 114, 115, 116, 118, 120. Petitioner also testified. Resp. Exh. 133, p. 1.The state submitted exhibits, including a declaration from trial counsel, a declaration from the prosecutor, police reports, a September 14, 2015 letter from petitioner to the trial judge, an October 12, 2015 ex parte motion to compel petitioner's attorney to relinquish records filed by petitioner in the criminal case, and records from a civil rights case filed by petitioner pro se in this court. Resp. Exhs. 123, 124, 125, 128, 129, 130. Following that hearing, the PCR trial judge issued a General Judgment denying all relief. Resp. Exh. 133.
The General Judgment issued by the PCR trial judge noted the matter came before him for hearing on August 8, 2017, and that the court took testimony from petitioner at that hearing. Resp. Exh. 133. No transcript from that hearing, however, appears in the record before this court.
As to petitioner's claim that mental illness prevented him from filing his PCR petition within the limitation period, the PCR trial judge held as follows:
More than two years [after his conviction], the petitioner filed a petition for Post-Conviction Relief. He admits that his petition falls outside the statutory limitation period, but alleges that his mental health condition prevented him from filing timely and that tolling is required under either the statute or due process. He offered several diagnoses. He testified at trial before this court that he was prescribed, among other medications, zyprexa, more than two years after he was imprisoned. He testified that it was the zyprexa that made it possible for him to pursue a life outside of his cell, including being able to initiate the petition in this case.
Other evidence established that the petitioner had been in touch with the court prior to the expiration of the limitations period, specifically about time limits. He had also filed various administrative complaints and appeals, an Oregon Tort Claims Act notice, and ultimately a federal complaint. He had also worked for over one year in the kitchen at the prison on a daily basis long before the lapse of the two year limitations period. He had been taking zyprexa before and soon after his incarceration.
This court finds:
1. Petitioner is not credible when he claims that his failure to file his petition within the statutory time period required by the provisions of ORS 138.510(3) was a result of untreated mental illness.
* * *
Petitioner failed to file his claims within the statute of limitations provided by ORS 138.510(3). His explanation that his mental illness constitutes an exception to the statute is not identified in the statute as a reason to excuse the delay, nor does his alleged mental illness require tolling of the statute on constitutional due process grounds. The state played no role in the delay in his filing of his petition. There is no “extraordinary circumstance” present in this case, and the petitioner failed to establish that he diligently pursued his claims as required under the standard articulated by the Ninth Circuit for equitable tolling.Resp Exh. 133, pp. 1-2. The PCR court then proceeded to consider the merits of petitioner's claims, and denied relief on the merits. Resp. Exh. 133, pp. 2-3. The PCR court entered judgment on August 30, 2017, Resp. Exh. 133, and petitioner did not appeal.
On September 2, 2020, petitioner filed his Petition for Writ of Habeas Corpus with this court. In it, he alleges a claim of actual innocence, three claims of ineffective assistance of trial counsel, and a claim that his plea was not knowing, intelligent, and voluntary. Respondent argues that the petition is untimely and that all of the claims alleged therein are procedurally defaulted. Petitioner concedes that his petition was not timely filed, but contends that the limitation period should be equitably tolled or, in the alternative, that his actual innocence excuses his untimeliness. Petitioner does not address respondent's procedural default argument.
II. Statute of Limitations
A. Equitable Tolling
As noted, petitioner acknowledges his petition was not timely filed, but argues that the limitation period should be deemed equitably tolled. Equitable tolling is available to toll the one-year statute of limitations. Holland v. Florida, 560 U.S. 631, 645 (2010). A litigant seeking to invoke equitable tolling must establish: (1) he has been pursuing his rights diligently; and (2) some extraordinary circumstance prevented him from timely filing his petition. Pace v.DiGuglielmo, 544 U.S. 408, 418 (2005). The “‘extraordinary circumstances beyond a prisoner's control [must] make it impossible to file a petition on time.'” Spitsyn v Moore, 345 F.3d 796, 799 (9th Cir. 2003) (quoting Brambles v. Duncan, 330 F.3d 1197, 1202 (9th Cir. 2003)). A petitioner who fails to timely file a petition due to his own lack of diligence is not entitled to equitable tolling. Tillema v. Long, 253 F.3d 494, 504 (9th Cir. 2001). Equitable tolling is unavailable in most cases, and the habeas applicant bears the burden of showing why this “extraordinary exclusion” should apply to him. Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).
Mental incompetence can support equitable tolling if the incompetence in fact causes a petitioner to fail to meet the habeas filing deadline. Laws v. Lamarque, 351 F.3d 919, 923 (9th Cir. 2003). In order to invoke equitable tolling due to mental impairment, a habeas petitioner must show that the impairment: (1) was so severe that he was unable to comprehend the need to file his habeas petition on time; and (2) made it impossible to file the petition on time despite his diligence. Bills v. Clark, 628 F.3d 1092, 1096 (9th Cir. 2010).
Here, petitioner relies upon the evidence submitted to the state PCR court to support his claim that his mental impairment was sufficient to equitably toll the statute of limitations. As the PCR court determined, however, petitioner did not establish that he was unable to understand the need to seek post-conviction relief. The PCR court explained that it did not find petitioner's contentions credible given that, among other things, petitioner was involved in other legal actions during the relevant time period, including “various administrative complaints and appeals, an Oregon Tort Claims Act notice, and . . . a federal complaint.” Resp. Exh. 133, p. 2. Additionally, the PCR court observed that petitioner worked in the prison kitchen on a daily basis for almost a year during the relevant time period, and the Zyprexa that he claimed “rendered him capable of understanding the necessity of filing this case was, in fact, administered long before the lapse of the limitations period.” Resp. Exh. 133, p. 3; see also Resp. Exh. 133, p. 1 (observing that petitioner “had been taking zyprexa before and soon after his incarceration”).
More importantly, petitioner offers no evidence and makes no attempt to explain how his alleged mental impairment prevented him from filing this action until three years after the PCR court made that determination and issued judgment. See Williams v. Covello, Case No. CV 210935 MWF (PVC), 2021 WL 6551280, at *5 (C.D. Cal. Dec. 15, 2021) (noting that petitioner failed to establish entitlement to equitable tolling based on his purported mental impairment “for the entire period between the expiration of the statute of limitations and the filing of his federal petition”). Further, petitioner fails to show diligence in pursuing his claims. A petitioner “must show that he has been reasonably diligent in pursuing his rights not only while an impediment to filing caused by an extraordinary circumstance existed, but before and after as well, up to the time of filing his claim in federal court.” Smith v. Davis, 953 F.3d 582, 599-600 (9th Cir. 2020). Again, petitioner offers no evidence or explanation for the three-year delay between the entry of judgment in the PCR proceeding and the filing of this action. As such, petitioner has not met his burden of showing that equitable tolling excuses his untimely filing.
B. Actual Innocence
In the alternative to equitable tolling, petitioner contends his untimeliness should be excused because he is “actually innocent.” “[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . [or] expiration of the statute of limitations.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); see also Lee v. Lampert, 653 F.3d 929, 931 (9th Cir. 2011) (holding that a credible showing of “actual innocence” under the standards established in Schlup v. Delo, 513 U.S. 298 (1995), excuses the AEDPA's statute of limitations). To demonstrate actual innocence, a petitioner must present “new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.” Schlup, 513 U.S at 324. In evaluating a claim of actual innocence, the court must consider all of the evidence, both old and new, and conclude “it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Id. at 217. The same standard applies where a petitioner has pleaded guilty. See Van Buskirk v. Baldwin, 265 F.3d 1080, 1084 (9th Cir. 2001) (finding, in a case where the petitioner pleaded guilty and did not have the evidence in his case evaluated by a jury, he was required to show that, “with the new evidence, it is more likely than not that no reasonable juror would have found Petitioner guilty”) (citing Schlup, 513 U.S. at 327); see also Smith v. Baldwin, 510 F.3d 1127, 1139-40 (9th Cir. 2007) (applying Schlup standard to petitioner who pleaded no contest). This is an exacting standard that is satisfied “only in the extraordinary case.” House v. Bell, 547 U.S. 518, 538 (2006).
Here, petitioner offers three areas of evidence to establish his innocence: (1) DNA evidence obtained from the victim's underwear that revealed a mixture of DNA from at least four contributors; (2) a report of a psychosocial evaluation obtained by petitioner's trial counsel; and (3) an expert report, also obtained by petitioner's trial counsel, calling into question the interview questions and tactics used with the victim.
As an initial matter, it is important to note that none of the proffered evidence is “new” for the purposes of a Schlup/McQuiggin evaluation; all of this evidence was available at the time of petitioner's plea agreement. See Dones v. Allison, Case No. 22cv282-MMA(BLM), 2022 WL 17979758, at * 14 (S.D. Cal. Dec. 28, 2022) (observing that evidence available to the petitioner's counsel before he entered a guilty plea was not “new” for the purposes of Schlup analysis); Mayv. Yordy, Case No. 1:16-cv-00278-CWD, 2017 WL 4076096, at *4 (D. Id. Sept. 13, 2017) (declining to find actual innocence where the petitioner offered “no new evidence . . . that was not available at the time he pleaded guilty”); Richardson v. Rackley, Case No. 17-cv-07374-PJH, 2018 WL 3619687, at *2 (N.D. Cal. July 30, 2018) (finding the petitioner “has not presented new evidence because all of these facts were known to petitioner when she plead no contest”).
With respect to the DNA evidence, petitioner states that it is new for Schlup purposes “because it was not before the court that adjudicated the trial upon stipulated facts.” Brief in Support of Petition for Writ of Habeas Corpus, ECF No. 58, p. 13. However, no stipulated facts trial occurred; the criminal case was resolved upon petitioner's no contest pleas. Resp. Exh. 104.
In any event, the evidence cited by petitioner falls short of the exacting standard required to establish actual innocence under Schlup. As to the DNA, although there were other contributors to the DNA evidence found in the victim's underwear, petitioner's own defense expert “rejected any of petitioner's suggested explanations for how his DNA could have been present” on the underwear, an opinion that petitioner's trial counsel shared with him before he entered the plea agreement. Resp. Exh. 123, pp. 1-2. Likewise, while the psychosocial evaluation and the expert report criticizing the interview process could be seen as helpful, trial counsel informed petitioner that neither would significantly increase his chances of success at trial given the other evidence in the case. Resp. Exh. 123, pp. 1-2. Moreover, petitioner's no contest plea tends to refute his actual innocence claim. See Raja v. Sherman, Case No. 2:19-cv-0051 MCE KJN P, 2019 WL 5290515, at *5 (E.D. Cal. Oct. 18, 2019) (observing the “petitioner's no contest plea tends to refute his actual innocence claim”) (citing Brown v. Miller, 2015 WL 269057, at *7 (C.D. Cal. Jan. 15, 2015) (noting the Schlup actual-innocence standard “does not readily lend itself to” petitioners who plead guilty), and Smith v. Baldwin, 510 F.3d 1127, 1139-40, 1140 n.9, 1141 (9th Cir. 2007) (en banc) (noting “potential incongruity” between “purpose” of Schlup's actual-innocence gateway and “its application to cases involving guilty (or no contest) pleas,” but nevertheless applying Schlup standard to petitioner who pleaded no contest to felony murder and concluding that he had not met it).
In sum, petitioner has not presented new evidence that so undermines the state's case that it is more likely than not no reasonable juror would have convicted him. Accordingly, petitioner cannot avail himself of the miscarriage of justice exception to excuse the untimeliness of his petition.
III. Procedural Default
Finally, respondent argues that habeas corpus relief should be denied because petitioner procedurally defaulted all of the claims alleged in his Petition, a contention that petitioner does not address. A habeas petitioner must exhaust all claims by fairly presenting them to the state's highest court, either through a direct appeal or collateral proceedings, before a federal court will consider the merits of those claims. Rose v. Lundy, 455 U.S. 509, 519 (1982). If a habeas litigant failed to present a claim to the state courts in a procedural context in which the merits of the claim were actually considered, the claim has not been fairly presented to the state courts and therefore is not eligible for federal habeas corpus review. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). Moreover, a petitioner is deemed to have “procedurally defaulted a claim if the petitioner failed to comply with a state procedural rule or failed to raise the claim at the state level. Id. at 451. If a petitioner has procedurally defaulted a claim in state court, a federal court will not review the claim unless the petitioner shows “cause and prejudice” for failure to present the constitutional issue to the state court or makes a colorable showing of actual innocence. Gray v Netherland, 518 U.S. 152, 162 (1996); Sawyer v. Whitley, 505 U.S. 333, 337 (1992); Murray v. Carrier, 477 U.S. 478, 485 (1986).
Petitioner procedurally defaulted his claim of trial court error-that his plea was not knowing, intelligent, or voluntary-because he did not raise this claim at all in state court. And, while petitioner did raise some of his ineffective assistance of counsel claims in his state PCR petition, he did not appeal from the denial of the PCR court's judgment. Because the time within which he could have exhausted those claims has passed, his claims are now procedurally defaulted. Petitioner does not establish cause and prejudice to excuse his procedural default, and for the same reasons discussed above that he has not established actual innocence to excuse his untimeliness, he cannot now show a “miscarriage of justice” to excuse his procedural defaults.
RECOMMENDATION
The Petition for Writ of Habeas Corpus (ECF No. 2) should be DENIED, and a judgment of dismissal should be entered. Because petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability should be DENIED. See 28 U.S.C. § 2253(c)(2).
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due by October 6, 2023. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of judgment.