Forbess v. Mills - Document 72
OPINION and ORDER - The Court GRANTS Petitioner's request for an evidentiary hearing to develop the record further on ht issue of the Petitioner's entitlement to equitable tolling of the statute of limitations. By U.S. Magistrate Judge John V. Acosta. (peg)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
STEVEN CHARLES FORBESS
Case No.:CV 08-1261-AC
OPINION AND ORDER
DON MILLS, Superintendent, Two Rivers
ACOSTA, Magistrate Judge:
Steven Forbess ("Petitioner") filed a Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. §2254. Currently before the court is Petitioner's request to hold an evidentiary hearing on
the issue of whether he is entitled to equitable tolling of the statute oflimitations imposed by the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). For the reasons stated below,
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the cOUli GRANTS Petitioner's request for an evidentiary hearing.
A Coos County jUly found Petitioner guilty of several offenses including attempted mmder,
kidnapping in March and May 1999. Resp't Ex. No.1 13, pp. 1-2. The trialjudge sentenced to a total
of 68 years in prison under the state "dangerous offender" statute. Resp't Ex. No. 101, pp. 5~6.
Assisted by counsel, Petitioner filed a direct appeal in the Oregon Couli of Appeals, and that cOUli
affirmed his sentence without opinion. State v. Forbess, CA No. AI07572 (Or. Ct. App. Sept. 26,
2001). Petitioner did not seek review from the Oregon Supreme COUli. The appellate court's
judgment took effect on November 28,2001. Resp't Ex. No. 106.
Five different mental health professionals evaluated Petitioner between 1999 and 2002. In
February 1999, James E. McDonald, Ph.D., P.C. ("Dr. McDonald") evaluated Petitioner and
concluded that he did not have a mental impaitment that prevented him from understanding the
charges against him or from participating in his own defense. Pet'r's Ex. No.2, p. 4. Dr. McDonald
noted in his written report that Petitioner appeared to suffer from "a Delusional disorder with
elaborate paranoid and grandiose themes," and that Petitioner "is adamant in his asseliions that his
fears and beliefs are rational and not fabricated." Pet'r's Ex. No.2, p. 4.
In July of1999, S. Michael Sasser, M.D. ("Dr. Sasser") issued a psychiatric evaluationreport
of Petitioner to evaluate whether the Petitioner was "dangerous offender" as defined by Oregon
Statutes. Pet'r's Ex. No.3, p. 1. Dr. Sasser concluded Petitioner suffers from a severe personality
disorder. Pet'r's Ex. No.3, p. 6. Nowhere in the repoli does Dr. Sasserreference delusions, but Dr.
Sasser did not interview Petitioner, and according to the "Refenal Question," the scope of his inquity
was limited to whether or not Petitioner suffered from a personaHty disorder. Pet'r's Ex; No.3, p.
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In April 2000, Ralph Ihle, Ph.D. ("Dr. Ihle") of the U.S. Department of Justice issued a
forensic evaluation to determine whether Petitioner was competent to stand trial on federal charges.
Pet'r's Ex. No.4, p. 1. Dr. Ihle concluded Petitioner was competent to understand the nature of the
proceedings against him and assist in his defense. Pet'r's Ex. No.4, p. 6. Dr. Ihle diagnosed
Petitioner with alcohol abuse in remission, cannabis abuse in remission, and antisocial personality
disorder which often leads to "deception, manipulation, drug abuse, explosive or impulsive behavior,
and opportunistic behavior." Pet'r's Ex. No.4, pp. 7-8. Further, he noted that there "was no
evidence of current delusions, loose associations, confusion, or confabulations." Pet'r's Ex. No.4,
In December of2000, Sharon Kay Melnick, M.D. ("Dr. Melnick") issued an evaluation of
Petitioner in which she concluded that the evidence supported the conclusion that "Petitioner is
mentally ill and is best diagnosed as someone with a Delusional Disorder." Pet'r's Ex. No.5, p.
9 (emphasis original.) Dr. Melnick opined that Petitioner will not admit and does not understand
that reality is not as he perceives it. Pet'r's Ex. No.5, p. 9. Dr. Melnick noted that Petitioner often
refuses to tell psychiatrists about his delusions, but that in interviews with non-psychiatrists, he has
admitted his belief that he is in the witness protection program and would be released when the "time
is right." Pet'r's Ex. No.5, p. 8.
Finally, in February 2002, Marvin D. Fickle, M.D. ("Dr. Fickle") issued a psychiatric
evaluation following Petitioner's involuntary admission to the psychiatric unit at Oregon State
Penitentiary. Dr. Fickle diagnosed Petitioner as suffering from a psychotic disorder based on
Petitioner's increasing paranoia regarding his beliefs that those around him, including cOlTectional
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officers, were tJyingto kill him. Pet'r's Ex. No.6, pp. 1,3. FUliher, Dr. Fickle administered an antipsychotic medication and noted that Petitioner's perception of reality was "impaired." Pet'r's Ex.
No. 6,p. 3.
On February 12, 2002, Petitioner filed a petition in Marion County Circuit Court for state
habeas corpus in which he alleged that prison officials were not meeting his medical needs in
violation of the Eighth Amendment. Resp't Ex. No. 151, p. 1. On October 30, 2003, almost two
years after his direct appeal became final, Petitioner filed a petition in Marion County Circuit COUli
for post-conviction relief("PCR"). Resp't Ex. No. 107-A, p. 13. Following an evidentiary hearing,
the PCR trial judge denied the petition. On appeal, the Oregon Court of Appeals affirmed without
opinion, Forbess v. Belleqlle, 218 Or. App. 735 (2008), and the Oregon Supreme Court denied
review. Forbess v. Belleque, 345 Or. 301 (2008). The PCRjudgment, became effective October
22,2008. Resp't Ex. No. 149.
On October 22, 2008, Petitioner filed his petition for Writ of Habeas Corpus in this court.
Petitioner alleges claims of ineffective assistance of trial and appellate c01msel, newly discovered
exculpatory evidence, and Brady violations by the prosecution. Pet. for Habeas Corpus, pp. 2, 7-8,
26. This court issued an order to show cause why the petition should not be summarily dismissed
as untimely. In response, Petitioner conceded that the petition is untimely, but claims that he is
entitled to equitable tolling because his delusions prevented him from timely filing. Pet'r's Mem.
In support of Pet. for Habeas Corpus, pp. 1-2. The court withdrew the order to show cause and
served the petition on Don Mills, Superintendent of Two Rivers Correctional Institution (the
"Respondent"). The Respondent objects to the application of equitable tolling and asks this court
to dismiss Petitioner's petition as untimely.
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1. Equitable tolling
The AEDPA imposes a one-year statute of limitations for filing a federal habeas corpus
petition. 28 U.S.C. § 2244.
The limitations period begins to run on the date on which the
conviction becomes final, i.e. the completion ofthe direct-appeal process. 28 U.S.C. § 2244(d)(I).
The limitations period is statutorily tolled during the state PCR process or other collateral review
process. 28 U.S.C. § 2244(d)(2).
The court may also toll the one-year limitation period for equitable reasons when
"extraordinary circumstances" prevent a petitioner from timely filing and the petitioner acts with
diligence in pursuing his or her rights. Holland v. Florida, _ U.S._, 130 S.C!. 2549, 2562 (2010).
The determination as to whether a court should toll the statute of limitations is fact dependent and
should be made on a case-by-case basis. Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010).
Mental illness can constitute an "extraordinary circumstance" entitling a petitioner to
equitable tolling when that mental illness makes filing impossible and is the but-for cause of the
petitioner's untimeliness. Laws v. Lamarque, 351 F.3d 919,922-23 (9th Cir. 2003). The Ninth
Circuit determined that a COUlt must perform the following evaluation:
(1) find the petitioner has made a non-frivolous showing that he had a severe mental
impairment during the filing period that would entitle him to an evidentiary hearing; (2)
determine, after considering the record, whether the petitioner satisfied his burden that he
was in fact mentally impaired; (3) determine whether the petitioner's mental impairment
made it impossible to timely file on his own; and (4) consider whether the circumstances
demonstrate the petitioner was otherwise diligent in attempting to comply with the filing
Bills, 628 F.3d at 1100-01. The threshold upon which a petitioner is entitled to equitable tolling
under the AEDPA is vety high, "lest the exceptions swallow the nJie." Id. at 1097, quoting }vliranda
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v, Castro, 292 F.3d 1063, 1066 (9th Cir. 2002),
II, Evidentiary Hearing
A court should hold an evidentiary hearing to further develop the record when the petitioner
has made a good-faith allegation that, if true, would entitle him to equitable tolling, lviendoza v,
Carey, 448 F.3d 1065, 1069 (9th Cir. 2006). The court may, however, deny the petitioner's request
for equitable tolling and dismiss the petition without holding an evidentiaty hearing when there is
significant evidence on the record that contradicts the petitioner's assertions. Roberts v, Marshall,
627 F.3d 786, 772-73 (9th Cir. 2010).
I. Extraordinary circumstances
Petitioner claims that in the relevant period between the final judgment of his conviction and
his filing of his petition for state PCR, he suffered from delusions that rendered him incapable of
understanding the necessity of filing his state PCR and habeas corpus petitions in a timely manner.
For the court to find that a mental impahment constitutes an "extraordinary circumstance,"
it must dete1mine whether the impahment 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 to personally prepare a habeas petition .. ,," Bills, 628 F.3d at 1100.
Here, Petitioner's allegations, if true, support a finding that he was unable to rationally or
factually understand the necessity offiling a timely habeas corpus petition. According to Petitioner,
he believes that he was working undercover for the FBI, and his trial was a "sham" orchestrated to
lure his ex-wife out of hiding and arrest her for being pati of an extensive drug distribution
operation. Pet'r's Mem: in Support of Pet. For Habeas Corpus, p. 6. Petitioner's allegation that his
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delusions persisted from the time of his trial to the expiration of the limitations period is supported
by the psychological evaluations of Dr. Fickle, Dr. McDonald, and particularly Dr. Melnick, who
archives the alleged delusions almost word for word in her report. If Petitioner genuinely believed
FBI would release him once they arrested his ex-wife, he would be incapable of rationally
understanding the necessity of filing a timely habeas petition.
The respondent argues that even if Petitioner was suffering from delusions, the fact that he
filed a state habeas corpus petition before the end ofthe limitations period shows that he was capable
of filing a federal petition in a timely manner. Respondent relies on Gaston v. Palmer, a case in
. which the Ninth Circuit upheld the district court's dismissal of a habeas petition without holding an
evidentiary hearing. 417 F.3d 1030, 1034-35 (9th Cir. 2005). In that case, the petitioner claimed
that his physical and mental impairments made it impossible for him to :file a timely habeas corpus
petition. fd. At 1035. The petitioner had, however, :filed six state habeas corpus petitions that
directly challenged the legitimacy of the judgment in his trial. fd. at 1038-39. The district cOUli
found that the petitioner's ability to :file state habeas corpus petitions undelmined his argument for
equitable tolling. fd. at 1034-35.
This case, however, is distinguishable from Gaston. First, in Gaston, the petitioner :filed six
separate state habeas corpus petitions, each directly challenging the legitimacy of the trial judgment.
fd. at 1038-39. Here, Petitioner only :filed one habeas corpus petition which focused on alleged
inadequate medical care while in prison instead ofthe legitimacy of his trial j udgment. Second, the
petitioner in Gaston argued that he was entitlee! to equitable tolling because his physical and mental
disabilities rendered him incapable of:filing in a timely manner (part (b) of the first prong of the Bills
test). fd. at 1034. Here, Petitionei' is arguing that his delusions rendered him unable to rationally
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and factually understand the necessity of filing on time (pmi (a) of the first prong of the Bills test.)
There are crucial factual differences between Gas/on and the present case. Accordingly, Gas/on is
Respondent next argues that Petitioner does not satisfY the Bills test because he rationally and
factually understood the need to timely file, but intentionally delayed because of "some greater,
irrational need." Resp't Reply at 4. The Respondent claims "there is no exception in Bills for
petitioners whose intentional delay was i11'ational and the product of their delusions." Resp't Reply
at 4. Respondent is incorrect. Under Bills, the court is to find the presence of "extraordinmy
circumstances" when the petitioner "was unable to rationally . .. understand the need to timely file."
Bills, 628 FJd at 11 00 (emphasis added). This standard undoubtably allows the comi to equitably
toll for intentional delays because of i11'ationally held beliefs. Here, Petitioner alleges that his
delusions rendered him unable to rationally understand the need to timely file. Ifhis allegations are
true, he satisfies the first prong ofthe Bills test.
Accordingly, the comi concludes that Petitioner has put forth a sufficient non-frivolous
showing that extraordinmy circumstances prevented him from filing his federal habeas corpus and
In order for the court to toll the statute oflimitations under the AEDPA, it must also find that
the petitioner pursued his rights diligently. Petitioner claims that due to his delusions, he believed
that his trial was a sham and he would soon be released from custody.
circumstances, Petitioner argues, he pursued his rights with the diligence necessary to entitle him to
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The diligence required for a
to find equitable tolling appropriate is "reasonable
diligence, not maximum feasible diligence." Holland, 130 S.Ct. at 2565. When evahlating what
level of diligence is reasonable, a COUll must view the "totality ofthe circumstances." Bills, 628 F 3d
at 1100. A mental impainnent factors into the court's evaluation of "reasonable diligence" if
"petitioner's mental impairment prevented him from locating assistance or communicating with or
sufficiently supervising any assistance actually found." Id. at 1101.
In Williams v. Schmidt, a federal court for the district of Alaska found that a petitioner had
acted with reasonable diligence when inmates in his facility charged exorbitant fees for legal
assistance and, "his mental impairments related to verbal functioning, recall, and problem solving
likely exacerbate[d] Williams' reclusiveness and his difficulties in asking for help." No.
3: 10-CV-00025-TMB-DMS, 2011 WL4071859, at *10 (D. Alaska, Sept. 13,2011). If Petitioner's
allegations are tme, then like the petitioner in Schmidt, Petitioner's mental impairments hindered his
ability to request help. He rationally did not understand the need to seek out help due to his belief
that the FBI would order his release when the time was right.
Respondent argues Petitioner did not exercise reasonable diligence because he intentionally
delayed filing his petition. Despite Petitioner's delusions, Respondent argues, there was no
triggering event that forced Petitioner to seek relief. Instead, it was his personal choice "to finally
pursue a rational course of challenging his sentence, which he had always known was available to
him." Resp.' s Reply at 5.
Respondent's position, however, ignores the totality of the circumstances, including
Petitioner's alleged delusions. If Petitioner did, in fact, believe the FBI would free him "when the
time was right," it could seem reasonable to him not to pursue his rights diligently.
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As noted, however, the threshold for equitable tolling is very high. CUll'ently, there is not
sufficient evidence on the record to affilmatively asceliain whether Petitioner acted with diligence.
The record contains little evidence regarding Petitioner's diligence in seeking assistance and
pursuing his rights. Petitioner makes a non-frivolous allegation that, if true, could entitle him to
III. Evidentimy hearing
A petitioner is entitled to an evidentiary hearing to further develop the record when there are
circumstances consistent with the petitioner's allegations that would entitle him to equitable tolling.
Laws, 351 FJd at 924. The petitioner is not required to put forth medical records or other evidence·
in the record to be entitled to an evidentiary hearing, but if medical evidence exists that directly
contradicts the petitioner's allegations, the C01ui may properly deny the petitioner's request for
equitable tolling without holding an evidentiary hearing. Roberts, 628 FJd at 772-73.
The limitations period for Petitioner's habeas corpus petition began to run on November 28,
2001, when his conviction was affilmed by the Oregon Court of Appeals. Absent tolling, the
limitations period would have expired on November 28, 2002. Petitioner did not file his state PCR
petition until October 30, 2003, after the end of the limitations period. Accordingly, he is not
entitled to statutOlY tolling under 28 U.S.C. §2244(d)(2). For Petitioner to proceed, the cOUli must
find he is entitled to equitable tolling between November 28,2001, and October 20, 2003.
Petitioner has put forth several exhibits to support his allegation that he suffered from
delusions for a significant time between 2001 and 2003. Further, Petitioner's habeas petition and
subsequent briefs make it clear that there are circumstances consistent with his allegations that could
entitle him to equitable tolling. Currently, the record is lacking sufficient information regarding
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Petitioner's diligence in defending his rights. An evidentiary hearing would allow the court to more
fully develop the record regarding Petitioner's alleged delusions and his diligence. Further, the
evidentiaty hearing will allow the Respondent to challenge Petitioner's allegations with evidence of
It is true that there is evidence on the record that is inconsistent with Petitioner's allegations.
For example, the evaluation report of Dr. Sasser makes no mention of delusions and the rep01t of.
Dr. Ihle affirmatively says that there was no evidence of delusions. This discrepancy could likely
be attributed to the phenomenon that Dr. Melnick pointed out regarding Petitioner's refusal to talk
frankly with mental health professionals about his alleged delusions and psychosis. This evidentiaty
discrepancy, however, is one that can be properly s01ted out with a more robust record before the
Respondent claims Petitioner requested that the equitable tolling decision be decided on the
pleadings. It is hue that in his most recent briefings, Petitioner did not request an evidentiary
hearing. However, in his April, 2010, Memorandum in SUppOlt, Petitioner, then under different
counsel, asked the court to hold an evidentiary hearing on the issue of equitable tolling. Mem. in
Supp. of Pet. for Writ of Habeas Corpus, Apr. 13,2010 at 18. In any event, the court may sua sponte
order a hearing if necessary. Davis v. Woodford, 384 FJd 628, 644 (9th Cir. 2004)
Because Petitioner has put f01ih a non~frivolous argument that he is entitled to equitable
tolling, the COUli grants Petitioner's request to hold an evidentiaty hearing to fuliher develop the
The court GRANTS Petitioner's request for an evidentiaty hearing to develop the record
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further on the issue of the Petitioner's entitlement to equitable tolling oOhe atute oflimitations.
(~_<~ lU \" tI(' -~~~~,.
Unite ) ates Magistrate Judge
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