Bennett v. Mueller

• Decision Date: 01 April 2005
• Docket Number: No. CV 00-445 CBM(EX).,CV 00-445 CBM(EX).
• Parties: Joseph Murl BENNETT, Petitioner, v. Glenn MUELLER, Warden, Respondent.
• Court: U.S. District Court — Central District of California

364 F.Supp.2d 1160

Joseph Murl BENNETT, Petitioner, v. Glenn MUELLER, Warden, Respondent.

No. CV 00-445 CBM(EX).

United States District Court, C.D. California. Western Division.

April 1, 2005.

COPYRIGHT MATERIAL OMITTED

Joseph Murl Bennett, San Luis Obispo, CA, pro se.

Gary A. Lieberman, CAAG — Office of Attorney General of California, Los Angeles, CA, for Respondent.

ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE AND OVERRULING PETITIONER'S OBJECTIONS

MARSHALL, Chief Judge.

Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Petition, all of the records herein and the attached Revised Report and Recommendation of the United States Magistrate Judge. The Court approves and adopts the Magistrate Judge's Revised Report and Recommendation.

The Court OVERRULES Petitioner's Objections to the Magistrate Judge's Revised Report and Recommendation. Petitioner objects to the Proposed Judgment, which provides that in addition to the merits of the Petition, Respondent may also address the affirmative defenses, including statute of limitations and laches. Petitioner argues that Respondent has waived these affirmative defenses by failing to raise them in his motion to dismiss, which was the first document Respondent filed in response to Petitioner's Petition. However, a motion to dismiss is not a pleading as defined by Fed.R.Civ.P. 7(a), and therefore is not, in most cases, a responsive pleading as defined by Fed.R.Civ.P. 12. Accordingly, failure to raise an affirmative defense in a motion to dismiss does not mean that the defense has been waived. See, e.g., United States v. Valdez, 195 F.3d 544, 548 (9th Cir.1999) ("government only filed a motion to dismiss ... and never filed an answer to the § 2255 motion. We thus deem it premature, at this stage, to hold that the government has waived any possible procedural default defense."); accord Parker v. United States, 110 F.3d 678, 682 (9th Cir.1997).

IT IS ORDERED that Respondent's Motion to Dismiss be denied.

IT IS FURTHER ORDERED that, within thirty (30) days of the date of this Order, Respondent shall file an Answer. The Answer shall address the merits of all claims alleged in the Petition. The Answer also may address the affirmative defenses of the statute of limitations and laches. Petitioner may file a Traverse within fifteen (15) days of the date the Answer is filed.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Magistrate Judge's Revised Report and Recommendation herein by United States mail on Petitioner and counsel for Respondent.

IT IS SO ORDERED.

REVISED REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

EICK, United States Magistrate Judge.

This Revised Report and Recommendation is submitted to the Honorable Consuelo B. Marshall, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 01-13 of the United States District Court for the Central District of California.

BACKGROUND

In 1986, Petitioner pled guilty to first-degree burglary in Los Angeles Superior Court Case No. A468635. At the time, criminal proceedings were pending against Petitioner in two other cases, Los Angeles County Superior Court Case Nos. A470545 and A470930. In the guilty plea form, signed by Petitioner and his counsel, Petitioner acknowledged: "I understand the court may send me to state prison for a maximum of 6 years." The plea agreement further provided: "If defendant pleads in case # A470545 and # A470930, this case will be 16 months consecutive to any sentence in those cases."

At sentencing, Petitioner attempted to withdraw his guilty plea and enter a plea of not guilty, contending it was his understanding that he was to receive a sixteen month prison term in Case No. A468635 regardless of whether he pleaded guilty in the two other cases. The trial court denied the motion and imposed a prison term of six years. The trial court clarified that the other two cases remained pending; therefore, an open plea remained available if Petitioner wished to plead guilty in the other cases.

Petitioner refused to plead guilty in the other cases. In 1987, in consolidated proceedings, a jury found Petitioner guilty in Case Nos. A470545 and A470930 of two counts of first-degree burglary, forcible rape, forcible oral copulation, forcible sexual penetration with a foreign object, sodomy by force, and assault to commit rape. Petitioner's combined sentence totaled forty-two years and four months, which later was reduced by one year, making his total term forty-one years and four months.

Petitioner did not appeal in Case No. A468635. Instead, twelve years after his conviction, he filed a "Motion for Transcripts" in the Los Angeles County Superior Court, arguing that he was improperly sentenced. The Superior Court denied the motion, finding that his contention "was raised, discussed, ... resolved [and] without merit." Petitioner later filed a habeas corpus petition in the Superior Court, which was denied as showing no grounds for relief. Petitioner next filed a petition with the California Court of Appeal. On May 25, 1999, the Court of Appeal denied the petition without comment or citation to authority. On July 8, 1999, Petitioner filed a habeas corpus petition in the California Supreme Court, in Case No. S080389. On November 23, 1999, the California Supreme Court denied the petition "on the merits and for lack of diligence."

Petitioner filed the present "Petition for Writ of Habeas Corpus by a Person in State Custody" ("Petition") in this Court on January 12, 2000, contending: (1) the trial court erred in failing to admonish Petitioner regarding the nature and effect of the plea agreement, rendering his guilty plea unknowing and involuntary; (2) the trial court abused its discretion in failing reasonably to consider the motion to withdraw his plea; and (3) Petitioner's trial counsel provided ineffective assistance in connection with the plea and the motion to withdraw, and also in failing to appeal.

Respondent filed a Motion to Dismiss on February 4, 2000, arguing that the doctrine of procedural default barred Petitioner's claims. Petitioner filed Opposition to the Motion to Dismiss on February 16, 2000.

On April 4, 2000, the Magistrate Judge issued a Report and Recommendation recommending dismissal of the Petition with prejudice on the ground of procedural default. On May 30, 2000, the District Court issued an order adopting the Report and Recommendation. The Court entered Judgment on June 5, 2000.

The Ninth Circuit Court of Appeals affirmed in part, reversed in part, and remanded. See Bennett v. Mueller, 322 F.3d 573 (9th Cir.), cert. denied, 540 U.S. 938, 124 S.Ct. 105, 157 L.Ed.2d 251 (2003) ("Bennett"). On October 30, 2003, the mandate of the Court of Appeals was filed and spread on the records of this Court.

On March 15, 2004, the Court ordered supplemental briefing. Because Petitioner failed to file a timely supplemental brief, on April 29, 2004, the Magistrate Judge issued a Report and Recommendation recommending dismissal of the Petition without prejudice for failure to prosecute. On June 2, 2004, Petitioner filed a "Motion for Reconsideration, etc." On June 4, 2004, the Magistrate Judge withdrew the April 29, 2004 Report and Recommendation and again ordered supplemental briefing.

On June 28, 2004, Petitioner filed a Supplemental Brief ("Pet.Supp.Brief"). On September 2, 2004, Respondent filed a Supplemental Brief ("Resp.Supp.Brief"), accompanied by lodged documents. On September 16, 2004, Petitioner filed a Reply. On September 17, 2004, Petitioner filed a Request for Judicial Notice, accompanied by exhibits.

DISCUSSION

I. General Law of Procedural Default

A federal court may be barred from reviewing the merits of a habeas petitioner's claim when the petitioner has defaulted with respect to particular state law procedural requirements. Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). "For the procedural default rule to apply, however, the application of the state procedural rule must provide `an adequate and independent state law basis' on which the state court can deny relief." Park v. California, 202 F.3d 1146, 1151 (9th Cir.), cert. denied, 531 U.S. 918, 121 S.Ct. 277, 148 L.Ed.2d 202 (2000) (quoting Coleman v. Thompson, 501 U.S. at 729-30, 111 S.Ct. 2546). If the court finds an independent and adequate state procedural ground, "federal habeas review is barred unless the prisoner can demonstrate cause for the procedural default and actual prejudice, or demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice." Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir.1993); see Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. 2546; Park v. California, 202 F.3d at 1150.

II. California's Timeliness Bar

California "has long required that a petitioner in a habeas corpus proceeding justify any substantial delay in seeking relief." Bennett, 322 F.3d at 579 (citations omitted). However, in In re Clark, 5 Cal.4th 750, 763, 21 Cal.Rptr.2d 509, 517, 855 P.2d 729 (1993) ("Clark"), a capital case, the California Supreme Court acknowledged that prior law had not established "clear guidelines" regarding state procedural limitations on habeas corpus petitions. Clark recognized that, in 1989, the California Supreme Court adopted new Policies containing express timeliness standards for death penalty cases. Id. at 782-83, 21 Cal.Rptr.2d at 532, 855 P.2d 729. Clark indicated that the Policies "did not create or modify the timeliness requirements applicable to all habeas corpus petitions," but established, for capital cases, a presumption of timeliness if the petitioner filed a petition within ninety days of the final due date of an appellate reply brief. See Clark, 5 Cal.4th at 782-83, 21 Cal.Rptr.2d at 530-31, 855 P.2d 729. Clark explained that "any substantial delay in the filing of a petition after the...