Metropolitan News-Enterprise


Wednesday, June 7, 2017


Page 1


Under Ninth Circuit Decision:

Habeas Corpus Petition Filed in 2010 to Be Considered


By a MetNews Staff Writer


The Ninth U.S. Court of Appeals has determined that a petition for a writ of habeas corpus filed in the U.S. District Court for the Central District of California in 2010 was timely, based on equitable tolling resulting from client abandonment by his lawyer.

A three-judge panel—comprised of Ninth Circuit Judges Alex Kozinski and John B. Owens, joined by District Judge Benjamin H. Settle of the Western District of Washington, sitting by designation—determined on Monday that Judge Juan Valenzuela is entitled to a consideration on the merits of his petition, deemed filed on March 28, 2010, when he handed it to prison officials.

The judges found “extraordinary” circumstances in the case.

Valenzuela was charged in December 1995 with two murders, and was convicted in Los Angeles Superior Court in September 1997. The Court of Appeal affirmed the convictions on Dec. 23, 1998 and review was not sought in the California Supreme Court.

The conviction became final on Feb. 1, 1999, triggering a one-year federal statute of limitation, under the Antiterrorism and Effective Death Penalty Act of 1996, for challenging a state conviction in U.S. District Court.

A petition was not filed by Feb. 1, 2000 but, under Monday’s decision, malpractice by Valenzuela’s lawyer gave rise to equitable tolling.

Hired in 1999

On Jan. 29, 1999, Valenzuela’s mother hired Carson attorney Vincent Melson to file a petition for writ of habeas corpus in the state court; on March 3, 2003, Melson sent a copy of the writ petition to Valenzuela but did not indicate it had not been filed; Melson repeatedly ignored attempts by Valenzuela and his family members to contact him to learn the status of the writ proceeding; on Dec. 3, 2007, after Valenzuela reported him to the State Bar, Melson filed the petition.

(That delay, along with pilfering $7,900 from a client trust fund, resulted in Melson incurring an actual suspension from law practice of one year, effective April 17, 2011.)

Valenzuela’s attempts to gain relief in state court failed, and he filed his federal petition in 2010. It was dismissed by U.S. District Court Judge Dale Fisher on June 15, 2010.

No ‘Causal Link’

She declared (adopting a magistrate judge’s report):

“…Petitioner has not established a causal link between Melson’s handling of the state habeas matter and his own failure to file a federal habeas petition before February 1, 2000, particularly a link that made such a filing impossible….Further, even if Petitioner had shown some causal link in this case, he has failed to show he exercised reasonable diligence in attempting to file his federal habeas petition after the extraordinary circumstances occurred….Petitioner’s filings do not show he is entitled to equitable tolling in this case.”

On Nov. 1, 2013, the Ninth Circuit vacated Fisher’s order dismissing the petition as untimely and remanded for an evidentiary hearing. One was conducted before Magistrate Judge Douglas F. McCormick.

He found that Valenzuela was entitled to equitable tolling from the time Melson was hired until the writ petition was filed in state court, on Dec. 3, 2007, and for an additional period extending to July 30, 2008, when Valenzuela’s continued attempts to gain a state writ of habeas corpus failed and the one-year statute commenced.

On Dec. 4, 2015, Fisher again dismissed the petition, saying that even with the tolling, the petition was “untimely by nearly eight months.”

Ninth Circuit Opinion

The Ninth Circuit on Monday vacated Fisher’s latest order, in a memorandum opinion, saying:

“To justify equitable tolling, Valenzuela must show that he diligently pursued rights and that an extraordinary circumstance ‘stood in his way’ and prevented timely filing….

“The effects of Melson’s undisputed misconduct, evidenced by professional misconduct findings and an actual State Bar suspension, lingered beyond the period of his formal representation. As a result of Melson’s misbehavior. Valenzuela was left to personally draft and file his state habeas petition from prison, a decade after his initial conviction, without a single exhausted claim….Valenzuela was entitled to adequate time to exhaust his claims in state court and prepare a federal habeas petition.

“Melson’s conduct was sufficiently extraordinary to justify equitable tolling not only for the period of his representation, but also for the period (from November 6, 2008 to July 8, 2009) in which Valenzuela’s properly filed pro se petitions were pending before the California Court of Appeal and the California Supreme Court. Valenzuela’s federal filing was thus timely.”

Settle wrote a brief concurring opinion.

Oral argument was held in the case in Pasadena on May 8. Judge Alex Kozinski questioned Deputy Federal Public Defender Michael Parente as to why Valenzuela, in filing a writ petition in the state courts, could not have filed one in the U.S. District Court.

“He could have, but he was not required to do so in order to mitigate the extraordinary circumstances that he was facing,” he lawyer responded.

Kolinski asked that if Valenzuela “could have” done so, “how can it then be the subject of equitable tolling”?

Parente argued that if he had done so, “anything that he would have been submitted would have been immediately dismissed” based on a failure to exhaust state remedies.

Deputy Attorney General Steven Mercer countered that the correct procedure would have been for Valenzuela to file a petition in the federal court within the limitations period and to have asked that the action be stayed pending resolution of the state court proceedings.

He said the premise underlying the petitioner’s contention is that “attorney misconduct is an extraordinary circumstance that lingers and lasts forever,” and that Valenzuela would therefore be entitled to be heard 20 years from now.

The case is Valenzuela v. Small, 15-56971.


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