United States District Court, D. Oregon
LEAETTA M. SUMNER, Petitioner,
HEIDI STEWARD, Respondent.
Robert W. Rainwater, Rainwater Law Group, Portland, Oregon, Attorney for Petitioner.
Ellen F. Rosenblum, Attorney General, Nick M. Kallstrom, Assistant Attorney General Department of Justice, Salem, Oregon, Attorneys for Respondent.
OPINION AND ORDER
MARCO A. HERNANDEZ, District Judge.
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of her state-court robbery convictions. Because petitioner failed to timely file this case, the Petition for Writ of Habeas Corpus (#2) is denied.
Petitioner is incarcerated within the Oregon Department of Corrections ("ODOC") following her May 4, 2004 convictions on four counts of Robbery in the Second Degree for which she was ultimately sentenced to an aggregate prison term totaling 175 months. Respondent's Exhibit 101; Trial Transcript, pp. 526-27. Petitioner took a direct appeal, but the Oregon Court of Appeals affirmed the trial court's decision without opinion, and the Oregon Supreme Court denied review. State v. Sumner, 208 Or.App. 757, 145 P.3d 1145 (2006), rev. denied, 342 Or. 417, 154 P.3d 723 (2007).
Prior to the finality of her direct appellate proceedings, petitioner filed her first action seeking state post-conviction relief ("PCR") in Washington County. The PCR trial court appointed Vicki R. Vernon to represent her, and ultimately denied relief on all of petitioner's claims. Respondent's Exhibits 122-124. The Oregon Court of Appeals summarily affirmed the PCR trial court's decision, and the Oregon Supreme Court again denied review. Respondent's Exhibits 125-132. The Appellate Judgment issued on April 1, 2010 and the Anti-terrorism and Effective Death Penalty Act's ("AEDPA's") one-year statute of limitations began to run. It is undisputed that petitioner was required to file this federal habeas corpus action by April 1, 2011.
On November 19, 2010, 233 days after the conclusion of her first PCR action, petitioner filed a second PCR case in Washington County. At that point, she had only 132 days in which to file a timely federal habeas corpus action. Importantly, if the second PCR action was not "properly filed, " it would not serve to toll the AEDPA's statute of limitations. 28 U.S.C. § 2244(d)(2).
On December 10, 2010, the PCR trial court appointed Vicki Vernon to represent petitioner in the successive PCR case. On January 6, 2011, petitioner sent Vernon a letter asking if a conflict existed on the basis that Vernon had represented her in the first PCR action. Petitioner's Exhibit A, p. 3. On January 20, 2011, Vernon contacted petitioner to discuss the case with her. Id at 4. Vernon followed up this phone call with a letter dated February 10, 2011 wherein she indicated the they had "discussed in some detail that you have filed a successive petition for post conviction relief and that you face dismissal based on the statute of limitations problem." Id. In a responsive letter dated February 26, 2011, petitioner disagreed with Vernon's assessment of the timeliness issue and felt they could successfully argue against any motion to dismiss. Id at 6. On the day petitioner authored that letter, she had only 34 days in which to file a timely federal habeas corpus petition.
On April 1, 2011, the AEDPA's statute of limitations expired. Also on that date, the State filed a motion to dismiss the second PCR action as both untimely and improperly successive. On May 3, 2011, petitioner, having heard nothing from Vernon since the February 10 letter, moved to disqualify her and proceed pro se. Petitioner had a variety of complaints with Vernon, including the validity of Vernon's position that the second PCR action would not be considered timely. Petitioner's Exhibit A, pp. 13-14. On June 28, 2011, the PCR trial court granted the motion to disqualify counsel and on September 12, 2011, appointed John Manning to represent petitioner.
On December 19, 2011, the PCR trial court held a hearing on the State's motion to dismiss and determined that petitioner had not made a sufficient showing to allow her to overcome the procedural bar against untimely successive PCR petitions. Respondent's Exhibit 143. This ruling was not only fatal to the PCR Petition, but also showed that the action had not been properly filed so as to toll the AEDPA's statute of limitations. See Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) (a PCR action dismissed as untimely is not a properly filed action). The Oregon Court of Appeals affirmed the PCR trial court's decision without issuing a written opinion, and the Oregon Supreme Court denied review. Sumner v. Howton, 259 Or.App. 791, 318 P.3d 756 (2013), rev. denied, 354 Or. 814, 325 P.3d 34 (2014).
Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on April 11, 2014, approximately three years after the AEDPA's statute of limitations expired. She argues that although she did not file this case within the statutory deadline, the court should equitably toll the statute of limitations for a variety of reasons and consider the Petition on its merits. Respondent disagrees, and asks the court to dismiss the action as untimely.
Petitioner concedes that she did not file this case within the AEDPA's one-year statute of limitations, but contends that she is entitled to equitable tolling because: (1) her appellate attorney from the first PCR action, Hari Nam S. Khalsa, did not advise her regarding the AEDPA's statute of limitations; (2) Vicki Vernon abandoned her during the second PCR trial by not filing an amended petition or giving petitioner advice on dismissing the second PCR action and filing for federal habeas corpus relief; (3) John Manning did not give her proper advice pertaining to the viability of the second PCR action and its effect on petitioner's ability to file a timely federal habeas action; and (4) ODOC advised her to file a second PCR action to preserve her issues, and she detrimentally relied on that information. Petitioner asks the ...