Osumi v. Giurbino
| Decision Date | 15 August 2006 |
| Docket Number | No. CV 05-5184 CJCRC.,CV 05-5184 CJCRC. |
| Citation | 445 F.Supp.2d 1152 |
| Court | U.S. District Court — Central District of California |
| Parties | Christopher Sadao OSUMI, Petitioner, v. G.J. GIURBINO, Warden, Respondent. |
Christopher Sadao Osumi, Imperial, CA, pro se.
Lance E. Winters, Office of Attorney General of California, Los Angeles, CA, for Respondent.
ORDER ADOPTING FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Petition and other papers along with the attached Final Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, as well as petitioner's and respondent's objections, and has made a de novo determination.
IT IS ORDERED that (1) the Final Report and Recommendation is approved and adopted; (2) the Final Report and Recommendation is adopted as the findings of fact and conclusions of law herein; and (3) Judgment shall be entered denying the petition for writ of habeas corpus and dismissing the action with prejudice.
IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Final Report and Recommendation and Judgment by the United States mail on the parties.
IT IS ADJUDGED that the petition for writ of habeas corpus is denied and the action is dismissed with prejudice.
This Final Report and Recommendation is submitted to the Honorable Cormac J. Carney, United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 01-13 of the United States District Court for the Central District of California.
On January 30, 2002, in Los Angeles County Superior Court case no. SA043514, a jury convicted petitioner Christopher Sadao Osumi of two counts of second degree robbery in violation of California Penal Code ("P.C.") § 211, and the jury found petitioner personally used a deadly weapon, a knife, in committing the offenses within the meaning of P.C. § 12022(b)(1); however, the jury found petitioner not guilty of forgery in violation of P.C. § 476. Clerk's Transcript ("CT") 116-22. In a bifurcated proceeding, petitioner admitted he had suffered two prior convictions within the meaning of the Three Strikes law, P.C. §§ 667(b)-(i) and 1170.12(a)-(d), and within the meaning of P.C. § 667(a)(1). CT 149-51. Petitioner was sentenced to the total term of 39 years to life in state prison. CT 149-56.
Petitioner appealed his convictions and sentence to the California Court of Appeal, CT 157, which affirmed the judgment in an unpublished opinion filed November 15, 2002. Lodgment nos. A3-A5. On December 31, 2002, petitioner filed a petition for review in the California Supreme Court, which was denied on January 29, 2003. Lodgment nos. A6-A7.
On December 15, 2003, petitioner filed a petition for writ of habeas corpus in the Los Angeles County Superior Court, which denied the petition on January 7, 2004, with citation to In re Dixon, 41 Cal.2d 756, 759, 264 P.2d 513 (1953). Lodgment nos. B1-B2. On April 12, 2004, petitioner filed a habeas corpus petition in the California Court of Appeal, which was denied on April 28, 2004, with citation to In re Clark, 5 Cal.4th 750, 763-87, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993) and In re Swain, 34 Cal.2d 300, 303-04, 209 P.2d 793 (1949). Lodgment nos. B3-B4. Finally, on August 6, 2004, petitioner filed a habeas corpus petition in the California Supreme Court, which was denied on June 29, 2005. Lodgment nos. B5-B6.
The California Court of Appeal, in affirming petitioner's convictions and sentence, made the following findings regarding the facts underlying the convictions: On September 29, 2001, and again on October 5, 2001, petitioner entered the 7-Eleven store at Santa Monica Boulevard and Glendon Avenue in West Los Angeles, brandished a knife and robbed Manmohan Singh, the clerk. Lodgment no. A5 at 2.
On July 6, 2005, petitioner, proceeding pro se, filed the pending petition for writ of habeas corpus. On September 8, 2005, respondent filed his answer to the petition, and petitioner filed his reply to the answer on January 6, 2006. On May 16, 2006, respondent filed an application for leave to file an amended answer, to tardily raise the defense of the untimeliness of petitioner's habeas corpus petition, and this Court denied respondent's request on May 17, 2006.
Petitioner raises the following claims in the pending petition:
Ground One—Ineffective assistance of trial counsel, who: (a) "failed to challenge suggestive six-pack lineup which lead [sic] to irreparable mistaken identity at the preliminary hearing and at trial"; (b) "failed to request an Evans1 lineup that lead [sic] to irreparable mistaken identity at the preliminary hearing and at trial"; (c) "failed to utilize the services of an eyewitness expert"; (d) "failed to utilize the services of a fingerprint expert"; (e) "failed to file a Pitchess2 motion in a case where officer misconduct was an absolute defense"; and (f) "errors are individual and cumulative"; and
Ground Two—"The trial court violated petitioner's constitutional rights to an impartial and unanimous jury and his right to the benefit of jury nullification by instructing the jury pursuant to CALJIC No. 17.41.1 . ..."
On May 18, 2006, this Court filed its initial Report and Recommendation, recommending petitioner's habeas corpus petition be denied on the merits. On June 1, 2006, respondent filed Objections to the Report and Recommendation, which did not address the Court's findings and determinations and raised the sole claim that the Report and Recommendation "should have also recommended that the Petition be denied because it is untimely." Objections at 1:25-2:1. Since this Court denied respondent's request to amend his answer to raise an untimeliness defense, respondent's Objections can be read to either claim that the Court should have sua sponte addressed the timeliness of petitioner's habeas corpus petition or the Court should have allowed respondent to amend his answer to add a statute of limitations defense. This Final Report and Recommendation incorporates the original Report and Recommendation and also addresses respondent's Objections to that Report and Recommendation.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEPA"), "district courts are permitted, but not obligated, to consider, sua sponte, the timeliness of a state prisoner's habeas petition." Day v. McDonough, ____ U.S. ____, ____, 126 S.Ct. 1675, 1684, 164 L.Ed.2d 376 (2006). "Of course, before acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions." Id. (citations omitted). "Further, the court must assure itself that the petitioner is not significantly prejudiced by the delayed focus on the limitation issue, and `determine whether the interests of justice would be better served' by addressing the merits or by dismissing the petition as time barred." Id. (citations omitted).
Here, the Court finds the interests of justice would be better served in addressing the merits of petitioner's claims, rather than considering sua sponte the timeliness of petitioner's filing, since the parties have already briefed the merits of petitioner's claims and addressing the statute of limitations issue would require more briefing, and, thus, delay the issuance of the decision on the merits. Even if the Court had allowed respondent leave to file an amended answer raising a statute of limitations defense, the Court still would have denied petitioner's habeas corpus petition on the merits. See Van Buskirk v. Baldwin, 265 F.3d 1080, 1083 (9th Cir.2001) (), cert. denied, 535 U.S. 950, 122 S.Ct. 1347, 152 L.Ed.2d 250 (2002); Cooper v. Calderon, 274 F.3d 1270, 1275 n. 3 (9th Cir.2001) (per curiam) (), cert. denied, 538 U.S. 984, 123 S.Ct. 1793, 155 L.Ed.2d 677 (2003).
Furthermore, under Rule 15(a) respondent may only amend his answer "by leave of court or by written consent of the adverse party." Fed.R.Civ.P. 15(a). Leave to amend "should be guided by the underlying purpose of Rule 15(a) ... which [is] to facilitate decision on the merits rather than on technicalities or pleadings." In re Morris, 363 F.3d 891, 894 (9th Cir.2004) (quoting James v. Pliler, 269 F.3d 1124, 1126 (9th Cir.2001)).
As noted above, the pending habeas corpus petition was filed July 6, 2005, and respondent filed his answer on September 8, 2005. Yet, it was not until May 18, 2006, almost a year after the petition was filed, that respondent sought to amend his answer to raise the statute of limitations defense. Briefing on the statute of limitations issue would have taken several months, especially if petitioner would have been required to explain his allegedly "unreasonable delay" in exhausting his state court remedies, and to produce declarations supporting his explanation. Thus, the Court denied respondent leave to amend his answer because such amendment would have delayed issuance of the decision in this matter. See Yong v. Immigration & Naturalization Serv., 208 F.3d 1116, 1119 (9th Cir.2000) .
Additionally, the Court denied respondent's request to file an amended answer, raising the statute of limitations...
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