Maurice Lewis v. P. Vasquez

FILED

NOT FOR PUBLICATION

SEP 16 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MAURICE LEWIS, No. 13-56844

Petitioner-Appellant, D.C. No. 2:10-cv-04778-DOC-MRW v.

P. L. VASQUEZ, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding

Argued and Submitted September 2, 2016 Pasadena, California

Before: SILVERMAN, IKUTA, and WATFORD, Circuit Judges.

1. The district court did not err in concluding that Maurice Lewis’ second

amended habeas petition was timely filed. The 1993 psychological report, which

forms the factual predicate of Lewis’ claim, was not included in his 1993 case file.

Lewis’ appointed federal habeas counsel discovered the report only by following

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Page 2 of 5 up on a cryptic, one-page order that authorized two doctors and an investigator to

visit Lewis. The district court…

MEMORANDUM *

1. The district court did not err in concluding that Maurice Lewis’ second amended habeas petition was timely filed. The 1993 psychological report, which forms the factual predicate of Lewis’ claim, was not included in his 1993 case file. Lewis’ appointed federal habeas counsel discovered the report only by following up on a cryptic, one-page order that authorized two doctors and an investigator to visit Lewis. The district court correctly found that, given Lewis’ status as a pro se incarcerated inmate and the mental challenges he faced, Lewis could not have “navigated the labyrinthine world of the state court records system” to find the 1993 report on his own. Thus, Lewis’ failure to discover the report was not a failure to exercise reasonable diligence in the circumstances. See Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012).

2. Lewis contends that his attorney rendered ineffective assistance at sentencing by failing to present either the 1993 report or nearly a dozen character letters in the attorney’s possession. Whether an attorney provided ineffective assistance of counsel at a noncapital sentencing hearing is determined by applying the two-part test…

concurring in the judgment:

I concur in the majority’s disposition of Lewis’s claim that his counsel’s failure to discover the 1993 psychological report constituted ineffective assistance of counsel. The state court’s rejection of this claim was neither contrary to nor an unreasonable application of Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), see 28 U.S.C. § 2254 (d)(1), because counsel’s performance did not fall below an objective standard of reasonableness and there' is' no reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different, see Strickland, 466 U.S. at 687-92 , 104 S.Ct. 2052 . Therefore, the district court did not err in denying Lewis’s habeas petition on this claim.

I write separately because we lack jurisdiction over Lewis’s second claim — that his counsel’s failure to submit eleven character letters constituted ineffective assistance of counsel. “AEDPA’s one-year statute of limitations in § 2244(d)(1) applies to each claim in a habeas application on an individual basis.” Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012). Otherwise, “AEDPA’s statute of…