Lais v. Ford, Case No. SACV 11-0420-JPR

Decision Date28 November 2012
Docket NumberCase No. SACV 11-0420-JPR
CourtU.S. District Court — Central District of California
PartiesRONALD EUGENE LAIS, Petitioner, v. KENNETH FORD, California Parole Region IV, Respondent.
MEMORANDUM OPINION AND ORDER

DENYING PETITION AND DISMISSING

ACTION WITH PREJUDICE

PROCEEDINGS

On March 15, 2011, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. The parties consented to the jurisdiction of the undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(c). On August 25, 2011, after four extensions of time, Respondent filed an Answer with an attached Memorandum of Points and Authorities, arguing, among other things, that the Petition was time barred. On April 27, 2012, after three extensions of time, Petitioner filed a "Traverse to Answer to Petition for Writ of Habeas Corpus; Request for Evidentiary Hearing, and Appointmentof Counsel" with an attached Memorandum of Points and Authorities. On July 20, 2012, the Court ordered Respondent to lodge two additional state habeas petitions and the rulings on them and file a supplemental brief addressing whether those petitions resulted in statutory tolling of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") limitation period sufficient to render the federal Petition timely. On August 29, 2 012, after one extension of time, Respondent lodged the requested documents and filed a supplemental brief conceding that the Petition was timely. For the reasons discussed below, the Court denies the Petition and dismisses this action with prejudice.

BACKGROUND

Following a bench trial in Orange County Superior Court, Petitioner was convicted on July 29, 2 005, of 25 counts of holding himself out as entitled to practice law after resigning from the State Bar while facing disciplinary charges (Cal. Bus. & Prof. Code § 6126(b)). (Lodged Doc. 1, 4 Clerk's Tr. at 716-19; Lodged Doc. 2, 4 Rep.'s Tr. at 683-84.) The court found that Petitioner was subject to a sentencing enhancement because he committed nine of those offenses while released on his own recognizance after being charged with another felony (Cal. Penal Code § 12022.1). (Lodged Doc. 2, 4 Rep.'s Tr. at 683-84.) On September 23, 2005, Petitioner was sentenced to 14 years in prison. (Id. at 756-57.)

Petitioner appealed, arguing that (1) the terms "practice law" and "legal advice" in California Business and Professions Code section 6126 were unconstitutionally vague and overbroad;(2) section 6126 violated the equal protection clauses of the federal and state constitutions; (3) his convictions on some counts were duplicative of others; (4) the evidence was insufficient to support some counts because it did not show that Petitioner "held himself out" as entitled to practice law; (5) some of the convictions violated ex post facto principles; (6) giving advice on foreign law did not violate section 6126; (7) the evidence was insufficient on some counts because there was no testimony about them; and (8) Petitioner's sentences on some counts violated California Penal Code section 654's proscription against multiple punishments. (Lodged Doc. 3.) After retaining new counsel, Petitioner filed a supplemental brief that adopted the claims in the opening brief and further argued that insufficient evidence supported some of his convictions because the victims retained Petitioner as an expert consultant while separately represented by an attorney. (Id.) On May 14, 2008, the California Court of Appeal reversed Petitioner's convictions on eight counts for lack of substantial evidence and directed the trial court to resentence Petitioner. (Lodged Doc. 5.) The court of appeal affirmed the judgment in all other respects. (Id.)

Petitioner filed a Petition for Review in the California Supreme Court, arguing that section 6126 was unconstitutionally vague and overbroad. (Lodged Doc. 6.) On July 23, 2 008, the state supreme court summarily denied review. (Lodged Doc. 7.)

On January 16, 2009, pursuant to the court of appeal's order, the trial court dismissed Petitioner's convictions on the eight counts and resentenced Petitioner to 12 years 8 months instate prison. (Lodged Doc. 8, 1 Clerk's Tr. at 298-99; Lodged Doc. 9, 1 Rep.'s Tr. at 8-9.) Petitioner appealed, arguing that the trial court erred by resentencing him without first addressing his request to appoint a new lawyer. (Lodged Doc. 10.) On December 21, 2009, the state court of appeal affirmed the trial court's resentencing and directed it to prepare and file an amended abstract of judgment. (Id.)

Meanwhile, on May 8, 2009, Petitioner filed a habeas petition in the state court of appeal, raising two grounds for relief: judicial bias and ineffective assistance of counsel ("IAC"). (Lodged Doc. 11.) Specifically, Petitioner argued that his trial counsel rendered ineffective assistance by failing to (1) raise state and federal constitutional issues related to regulation of the unauthorized practice of law; (2) employ or call expert witnesses "to challenge [unlawful practice of law] prosecutions and validate [his] business model"; (3) "file a 1538.5 motion1 to challenge the complaint as promised"; (4) cross-examine witnesses, challenge documents, or call any witnesses; (5) present "DOJ/FTC data limiting [unlawful practice of law] prosecutions"; (6) communicate a plea agreement; (7) warn Petitioner of a "potential prison term"; (8) prepare for trial; (9) "raise the issue of cruel and unusual punishment"; or (10) "argue on [his] behalf on post-trial motions." (Id.) On May 19, 2 009, the court of appeal summarily denied Petitioner's petition. (Lodged Doc. 12.)

On June 9, 2009, Petitioner filed a habeas petition in the state superior court, raising the same judicial-bias and IAC claims. (Lodged Doc. 13.) On June 23, 2009, the superior court denied the petition on three "separate and independent" grounds: (1) Petitioner was convicted in 2005 but failed to explain or justify his delay in bringing the claims "insofar as Petitioner complains about the representation prior to his conviction and during his court trial"; (2) he failed to plead sufficient grounds for relief; and (3) he failed to show that his trial counsel's performance was deficient or that it resulted in prejudice. (Lodged Doc. 14.)

On October 14, 2009, Petitioner filed another habeas petition in the state court of appeal, raising the same judicial-bias and IAC claims. (Lodged Doc. 15.) On October 29, 2009, the state court of appeal summarily denied the petition. (Lodged Doc. 16.) On December 18, 2009, Petitioner filed a habeas petition in the California Supreme Court, again raising the same judicial-bias and IAC claims. (Lodged Doc. 17.)

On February 3, 2010, Petitioner filed a habeas petition in the state superior court, raising two claims for relief. (Lodged Doc. 18.) First, Petitioner argued that his trial counsel had rendered ineffective assistance by "fail[ing] to raise defense of cruel and unusual punishment as instructed by [P]etitioner" or "argue for leniency based on trends in the law of 'unauthorized practice of law.'" (Id. at 3-3(a).) Second, Petitioner argued, for the first time, that his felony convictions and sentence for violating section 6126(b) constituted cruel and unusual punishment. (Id. at 4.)

On March 10, 2010, the California Supreme Court summarily denied the December 2009 habeas petition raising judicial bias and IAC. (Lodged Doc. 20.) That same day, the state superior court denied Petitioner's February 2010 habeas petition, which raised IAC and cruel and unusual punishment, on the grounds that it was untimely and successive, citing In re Clark, 5 Cal. 4th 750, 765, 797, 782, 21 Cal. Rptr. 2d 509, 518, 530, 540 (1993), and In re Stankewitz, 40 Cal. 3d 391, 396 n.l, 220 Cal. Rptr. 382, 384 n.l (1985). (Lodged Doc. 19.)

On March 24, 2010, Petitioner filed a habeas petition in the state superior court, arguing that he was entitled to additional presentence conduct credits. (Lodged Doc. 25 at 3.) On April 28, 2010, Petitioner filed a habeas petition in the state court of appeal, again arguing that (1) trial counsel rendered ineffective assistance by "fail[ing] to raise the defense of cruel and unusual punishment" or "argue for leniency based on trends in the law of 'unauthorized practice of law'" and (2) his felony convictions and sentence constituted cruel and unusual punishment. (Lodged Doc. 21 at 3-4.) On April 13, 2010, the superior court denied the sentencing-credits petition. (Lodged Doc. 26.) On May 6, 2010, the court of appeal summarily denied the petition alleging IAC and cruel and unusual punishment. (Lodged Doc. 22.)

On June 21, 2010, Petitioner filed a habeas petition in the court of appeal, again arguing that he was entitled to additional presentence conduct credits. (Lodged Doc. 27.) On July 1, 2010, Petitioner filed a final habeas petition in the California Supreme Court, raising five grounds for relief: (1) the evidencewas insufficient to support his convictions because he "never advertised or held [himself] out as eligible to practice law in California when [he] was not"; (2) his conviction and sentence constituted cruel and unusual punishment; (3) section 6126(b) violated equal protection because "former California lawyers" were "singled out for harsher penalties . . . than their nonlawyer counterparts"; (4) his convictions constituted "Ex Post Facto application of law"; and (5) his trial and appellate counsel rendered ineffective assistance because they failed to raise the issues Petitioner was asserting in his petition. (Lodged Doc. 23 at 3-4, 4(a).)

On November 24, 2010, the state court of appeal granted Petitioner's petition seeking additional presentence conduct credits. (Lodged Doc. 28.) On January 26, 2011, the state supreme court summarily denied Petitioner's June 2010 petition. (Lodged Doc. 24.)

PETITIONER'S CLAIMS

1. Petitioner's trial and appellate counsel were constitutionally ineffective.

(A) Trial cou
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