-CKD (HC) Bailey v. People of California, No. 2:2010cv00084 - Document 58 (E.D. Cal. 2012)
Court Description: ORDER signed by Judge John A. Mendez on 8/17/12 ADOPTING IN PART AND REJECTING IN PART 51 Findings and Recommendations; DENYING 20 Motion to Dismiss. The Court adopts the Magistrate Judge's summation of the legal and factual background of th e case, the application of the mailbox rule, the findings of the relevant time period for the statute of limitations under AEDPA, and the synopsis of the evidentiary hearing. The Court rejects the Magistrate Judge's finding that Petitioner failed to show diligence under Bills and the Court rejects the recommendation that Respondent's Motion to Dismiss should be granted. (Meuleman, A) Modified on 8/17/2012 (Meuleman, A).
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-CKD (HC) Bailey v. People of California Doc. 58 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DORIAN D. BAILEY, 12 13 Petitioner, v. 14 15 GREG LEWIS, Respondent. 16 17 )Case No. 2:10-CV-0084 JAM-CKD P ) ) )ORDER ADOPTING IN PART AND )REJECTING IN PART THE MAGISTRATE )JUDGE’S FINDINGS AND )RECOMMENDATIONS ) ) ) Petitioner, Dorian D. Bailey (“Petitioner”), a state prisoner 18 represented by counsel, has filed this application for a writ of 19 habeas corpus pursuant to 28 U.S.C. Section 2254. 20 referred to United States Judge Carolyn Delaney pursuant to 28 21 U.S.C. Section 636(b)(1)(B) and Local Rule 302. 22 The matter was On March 16, 2012, Magistrate Judge Delaney issued Findings 23 and Recommendations (Doc. #51) recommending the Court grant 24 Respondent Greg Lewis’s (“Respondent”) Motion to Dismiss (Doc. 25 #20). 26 and Recommendations (Doc. #57). In accordance with the provisions 27 of 28 U.S.C. Section 636(b)(1)(C) and Local Rule 304, this court 28 has conducted a de novo review of this case. Petitioner filed Objections to Magistrate Judge’s Findings 1 Dockets.Justia.com 1 2 I. 3 FACTUAL AND PROCEDURAL BACKGROUND In 2004, a jury convicted Petitioner of thirteen counts 4 charging various sex offenses and one count of first degree 5 robbery. 6 imposed an aggregate unstayed sentence of two consecutive terms of 7 25 years to life plus 54 years. On July 9, 2004, the Sacramento County Superior Court 8 Since his 2004 conviction, Petitioner has sought review 9 through the California appellate courts, in addition to the United 10 States Supreme Court. 11 California Supreme Court on October 31, 2007, Petitioner 12 subsequently filed one state post-conviction collateral challenge. 13 On January 29, 2009, he filed an application for writ of habeas 14 corpus in the Sacramento County Superior Court. 15 the Superior Court denied the petition as untimely. 16 After seeking and being denied review in the On March 6, 2009, Petitioner filed the instant federal writ of habeas corpus 17 petition (Doc. #1) on January 11, 2010.1 18 rule, the Magistrate Judge found that because petitioner signed the 19 petition on November 16, 2009, the petition was constructively 20 filed on November 16, 2009. 21 1222 (9th Cir. 2001) (holding that a pro se habeas petition is 22 “deemed filed when [the petitioner] hands it over to prison 23 authorities for mailing to the district court.”). 24 Applying the mailbox See Huizar v. Carey, 273 F.3d 1220, Respondent moves to dismiss the pending habeas petition (Doc. 25 1 26 27 28 Petitioner filed his Petition for Writ of Habeas Corpus pro se. Due to mental health concerns, on April 5, 2010, the Magistrate Judge previously presiding over the case ordered an attorney from the Federal Defenders Office to represent Petitioner (Doc. #4). On May 6, 2010, Petitioner substituted that attorney for Mark Eibert, Petitioner’s current counsel (Doc. #12). 2 1 #20). Respondent argues that the petition is time-barred under the 2 Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 3 U.S.C. § 2244. 4 of habeas corpus running from the date on which the judgment became 5 final by conclusion of direct review. Under AEDPA, Petitioner had one year to file a writ 8 U.S.C. § 2244(d)(1)(A). 6 7 In the Findings and Recommendations, the Magistrate Judge 8 finds that Petitioner’s direct review concluded when his second 9 petition for review was denied by the California Supreme Court and 10 that the limitations period began to run on January 30, 2008 and 11 concluded one year later on January 29, 2009. 12 petition in the instant case was not constructively filed until 13 November 16, 2009, the Magistrate Judge finds that absent tolling, 14 the petition is time-barred. Thus, because the 15 Petitioner does not challenge the Respondent’s or the 16 Magistrate Judge’s AEDPA analysis, but instead argues that the 17 limitations period should be equitably tolled due to his lifelong 18 mental illness and the strong medications he was taking during the 19 relevant time period. 20 equitable tolling if the petitioner demonstrates: “(1) that he has 21 been pursuing his rights diligently, and (2) that some 22 extraordinary circumstance stood in his way.” 23 544 U.S. 408, 418 (2005); Bills v. Clark, 628 F.3d 1092 (9th Cir. 24 2010) (applying the Pace standard to petitioners with mental 25 impairments). 26 him unable to prepare his federal habeas petition or to timely 27 assist in its preparation and filing. 28 The limitations period is subject to Pace v. DiGuglielmo, Petitioner argues that his mental illness rendered The Magistrate Judge conducted an evidentiary hearing on 3 1 February 21, 2012 to resolve the issue of whether the statute of 2 limitations should be equitably tolled. 3 documents containing Petitioner’s mental health records in advance 4 of the hearing and Petitioner produced his mother, J. Yvonne 5 Heriveaux, as a witness. 6 the habeas petition “because he wasn’t able to.” 7 Proceedings Before the Honorable Carolyn K. Delaney U.S. Mag. J 8 (Doc. #56) at 25 [hereinafter “Tr.”]. 9 Petitioner “wasn’t talking right, he wasn’t remembering anything, Both parties lodged Ms. Heriveaux testified that she prepared Tr. of Ms. Heriveaux testified that 10 he was just like in another space in another world.” 11 Heriveaux stated that in about May 2008, she sent Petitioner the 12 petition to sign and return to her for filing, but Petitioner 13 repeatedly denied receiving it. 14 reminded him about signing the petition, he would reply “[w]hat 15 paper, mom? 16 He just could not remember what I was talking about.” 17 28. 18 second time in about November or December 2008, and reminded him to 19 sign and return it every time she talked to him. 20 In sum, Ms. Heriveaux testified that Petitioner was unable to sign 21 the petition because his mental state was “just horrific.” 22 37. 23 Id. Ms. Ms. Heriveaux stated that when she What paper are you talking about? That sort of thing. Id. at 27, Ms. Heriveaux testified that she sent the petition to him a Id. at 27-29, 38. Id. at Respondent presented evidence to cast doubt on Petitioner’s 24 claim that he was incapable of functioning during the relevant 25 period. 26 that Petitioner “had legal questions” and was directed to the law 27 library, and that he “reported he has reviewed his medical records 28 and they are to be mailed to his mother.” For example, progress notes from February 2008 indicate 4 Tr. at 45. 1 The Magistrate Judge recommends that this Court grant 2 Respondent’s Motion to Dismiss. 3 finding as to whether petitioner’s mental condition was an 4 “extraordinary circumstance,” but does find that Petitioner has not 5 carried his burden of proving “diligence.” 6 found that Petitioner’s mental illness did not make it impossible 7 for him to effect the filing of his federal habeas petition. 8 Magistrate Judge reasoned, 9 10 11 12 13 14 15 The Magistrate Judge makes no The Magistrate Judge The While it is undisputed that petitioner was heavily medicated and experiencing symptoms of mental illness in 2008 and 2009, the record shows he was at least intermittently capable of writing letters, taking an interest in his legal issues, and writing simple requests. Nothing suggests that for several months he was incapable of even signing his name. Findings and Recommendations (Doc. #51) at 13:5-9. Petitioner objects to the Magistrate Judge’s Findings and Recommendations (Doc. #57). Respondent did not file a response. 16 17 18 II. OPINION In Bills v. Clark, the Ninth Circuit set forth the standard 19 for equitable tolling due to mental impairment. 20 Cir. 2010). 21 22 23 24 25 26 27 28 628 F.3d 1092 (9th Petitioner must meet a two-part test: (1) First, a petitioner must show his mental impairment was an ‘extraordinary circumstance’ beyond his control by demonstrating the impairment was so severe that either (a) petitioner was unable rationally or factually to personally understand the need to timely file, or (b) petitioner’s mental state rendered him unable personally to prepare a habeas petition and effectuate its filing. (2) Second, the petitioner must show diligence in pursing the claims to the extent that he could understand them, but that the mental impairment made it impossible to meet 5 1 the filing deadline under the totality of the circumstances, including reasonably available access to assistance. 2 3 628 F.3d at 1100 (internal citations omitted). 4 C. 5 Petitioner argues that the Court should equitably toll the Analysis 6 statute of limitations. 7 Bills’ first requirement because his mental illness was an 8 extraordinary circumstance beyond his control. 9 that the evidence before the Court leaves room for no other 10 conclusion than that he satisfied the first, “extraordinary 11 circumstance” prong of the Bills test. 12 the relevant period, Petitioner consistently 13 (1) was diagnosed with schizophrenia and depression, 14 (2) experienced audio and visual hallucinations, and (3) was being 15 administered multiple psychotropic drugs. 16 much of 2009 in a mental health crisis bed in Salinas Valley 17 Prison. 18 “fund of information, intellectual functioning, concentration, 19 attention, and memory” were “all compromised” and that petitioner 20 had a “poor memory” and was a “poor historian.” 21 Petitioner’s GAF score was assessed at 33.2 First, Petitioner argues he satisfies Petitioner argues The Court agrees. During Petitioner also spent In March 2009, a psychologist noted that Petitioner’s Tr. 5-7. Id. at 6. In addition 22 23 24 25 26 27 28 2 “GAF” is an acronym for “Global Assessment of Functioning,” a scale used by clinicians to assess an individual’s overall level of functioning, including the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders with Text Revisions 32 (4th ed. 2004). A GAF score of 31-40 indicates: “Some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at 6 1 to the numerous reports detailing Petitioner’s mental illness, the 2 Court is persuaded by Ms. Heriveax’s testimony in which she states 3 that she sent him the petition twice, but due to his mental illness 4 and the psychotropic drugs, he was unable to sign it. 5 reasons, the Court finds that Petitioner’s “mental impairment made 6 him unable to take steps to effectuate [the filing of the 7 petition].” 8 9 For those Bills, 628 F.3d at 1100 n. 2. As to the second Bills prong requiring diligence, Petitioner argues that the issue is not whether he was capable of signing his 10 name, the issue is whether he was able to remember that he needed 11 to sign his name and return the documents in the prison mail, 12 whether his psychotically disorganized thinking made him able to 13 understand the need to timely file, and whether he was mentally 14 capable of doing that at the right time and place. 15 argues that everything in the record, and especially the testimony 16 of his mother at the hearing, supports the conclusion that he was 17 mentally unable to cooperate with the assistance he had to sign his 18 name and mail the papers back to her. 19 20 21 22 23 24 25 26 27 Petitioner The Ninth Circuit explained that the diligence prong requires a ‘totality of the circumstances’ inquiry . . . [as to] whether the petitioner’s impairment was a but-for cause of any delay. Thus, a petitioner’s mental impairment might justify equitable tolling if it interferes with the ability to understand the need for assistance, the ability to secure it, or the ability to cooperate with or monitor assistance the petitioner does secure. Bills, 628 F.3d at 1100. Here, the Magistrate Judge reasoned that since it could have 28 home, and is failing at school.)” 7 Id. 1 been possible for Petitioner to physically sign his name during the 2 relevant time period, he does not satisfy the diligence 3 requirement. 4 5 6 7 8 9 However, the Ninth Circuit clarifies that Despite the unequivocal ‘impossibility’ language in our standard, we have not insisted that it be literally impossible for a petitioner to file a federal habeas petition on time as a condition of granting equitable tolling. We have granted equitable tolling in circumstances where it would have technically been possible for a prisoner to file a petition, but a prisoner would have likely been unable to do so. 10 Id. at 1100 n.3 (quoting Harris v. Carter, 515 F.3d 1051, 1055 n.5 11 (9th Cir. 2008)). 12 The record shows that Petitioner’s mental illness made it 13 impossible for him to cooperate with Ms. Heriveaux and get his 14 petition filed in time. 15 Petitioner was continually administered psychotropic drugs and, for 16 almost half of the relevant time period, he was restricted to a 17 mental health crisis bed in prison. 18 testimony illustrates that, despite her assistance, Petitioner’s 19 mental illness prevented him from completing the simple task of 20 signing his habeas petition. 21 numerous reminders to sign the petition, Petitioner could not 22 remember what she was talking about. 23 that he was incoherent, had slurred speech, and talked to people 24 who were not there, including spirits. 25 documented severity of Petitioner’s mental illness, his continual 26 use of psychotropic medications, his numerous stays at the mental 27 health crisis bed, and his mother’s testimony about his mental 28 condition and the difficulty of getting him to merely sign his During the entire relevant time period, Furthermore, Ms. Heriveaux’s Ms. Heriveaux testified that despite 8 Tr. at 27. She testified Id. at 27-30. Based on the 1 petition, the Court finds that petitioner’s “mental impairment made 2 it impossible [for him] to meet the filing deadline under the 3 totality of the circumstances[.]” 4 Court finds that Petitioner satisfies the diligence prong under 5 Bills and that the statute of limitations should be equitably 6 tolled. Bills, 628 F.2d 1100. Thus, the 7 8 9 10 III. ORDER For the reasons set forth above, 1. The Findings and Recommendations filed March 16, 2012 are 11 adopted in part and rejected in part. 12 Magistrate Judge’s summation of the legal and factual background of 13 the case, the application of the mailbox rule, the findings of the 14 relevant time period for the statute of limitations under AEDPA, 15 and the synopsis of the evidentiary hearing. 16 Magistrate Judge’s finding that Petitioner failed to show diligence 17 under Bills and the Court rejects the recommendation that 18 Respondent’s Motion to Dismiss should be granted. 19 20 The Court adopts the The Court rejects the 2. Respondent’s September 13, 2010 Motion to Dismiss is DENIED. 21 IT IS SO ORDERED. 22 Dated: August 17, 2012 ____________________________ JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 9
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