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Lambert v. Paersson

United States District Court, D. Oregon

August 13, 2019

INEZ LAMBERT, Petitioner,
v.
ROB PAERSSON, Respondent.

          OLIVER W. LOEWY Assistant Federal Public Defender Attorney for Petitioner

          ELLEN F. ROSENBLUM Attorney General NICHOLAS M. KALLSTROM Assistant Attorney General Attorneys for Respondent

          OPINION AND ORDER

          ANNA J. BROWN, UNITED STATES DISTRICT JUDGE.

         Petitioner, an inmate at the Coffee Creek Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Court DENIES the Petition for Writ of Habeas Corpus (ECF No. 1).

         BACKGROUND

         On January 18, 2011, a Multnomah County grand jury indicted Petitioner on six counts of Sodomy in the First Degree, seven counts of Using a Child in a Display of Sexually Explicit Conduct, and six counts of Sexual Abuse in the First Degree. Resp. Exh. 102, pp. 1-3. Pursuant to a plea agreement, on December 2, 2011, the trial court entered a judgment of conviction on two counts of Sodomy in the First Degree and two counts of Using a Child in a Display of Sexually Explicit Conduct. Resp. Exh. 101. The trial judge sentenced Petitioner to a total of 25 years of imprisonment. Resp. Exh. 101.

         Petitioner did not file a direct appeal. On November 8, 2012, Petitioner filed a petition for state post-conviction relief ("PCR"). The PCR trial court denied relief. Resp. Exh. 126. Petitioner appealed, but the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Lambert v. Steward, 276 Or.App. 461, 368 P.3d 85, rev. denied, 359 Or. 166, 376 P.3d 281 (2016). The appellate judgment issued on June 3, 2016. Resp. Exh. 132.

         On February 28, 2017, Petitioner filed her Petition for Writ of Habeas Corpus in this Court. Petitioner concedes her Petition was untimely. Petitioner argues, however, that the Court should equitably toll the statute of limitations and consider the Petition on its merits. Respondent disagrees, and asks the Court to dismiss the action as untimely.

         LEGAL STANDARDS

         Equitable tolling is available to toll the one-year statute of limitations available to 28 U.S.C. § 2254 habeas corpus cases. Holland v. Florida, 560 U.S. 631, 645 (2010) . A litigant seeking to invoke equitable tolling must establish: (1) that she has been pursuing her rights diligently; and (2) that some extraordinary circumstance prevented her from timely filing the petition. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). A petitioner who fails to file a timely petition due to her own lack of diligence is not entitled to equitable tolling. Tillema v. Long, 253 F.3d 494, 504 (9th Cir. 2001), overruled on other grnds by Pliler v. Ford, 542 U.S. 225, 231 (2004) . The petitioner bears the burden of showing that this "extraordinary exclusion" should apply. Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002). The test for equitable tolling "is a very high bar, and is reserved for rare cases." Yow Ming Yeh v. Martel, 751 F.3d 1075, 1077 (9th Cir.), cert, denied, 135 S.Ct. 486 (2014).

         Generally, claims for equitable tolling based upon attorney-error do not arise to the level of an extraordinary circumstance sufficient to warrant equitable tolling. See, e.g., Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001) (attorney negligence in general does not justify equitable tolling); Holland, 560 U.S. at 651-52 ("garden variety" negligence does not warrant equitable tolling). "Justice Alito explained his understanding of the logic behind this framework, reasoning that, 'the principal rationale . . . is that the error of an attorney is constructively attributable to the client and thus is not a circumstance beyond the litigant's control.'" Gibbs v. Legrand, 767 F.3d 879, 885 (9th Cir. 2014) (quoting Holland, 560 U.S. 657 (Alito, J., concurring)), cert. denied 135 S.Ct. 1708 (2015). Equitable tolling based upon attorney performance is only appropriate where: (1) an attorney's performance goes beyond error and amounts to "egregious professional misconduct;" or (2) the attorney abandons her client altogether. Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015);

         DISCUSSION

         Here, the § 2244(d) limitation period began to run on January 3, 2012, the date that the 30-day time period expired for Petitioner to file a direct appeal. [1] Prior to the expiration of the time to appeal her conviction and sentence, Petitioner's family retained attorney Andy Simrin to represent Petitioner. Simrin advised Petitioner to forego a direct appeal in favor of filing a PCR petition.

         Prior to filing the state PCR petition, Simrin wrote Petitioner three times advising her of the time limitations for filing a federal ...


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