(HC) Green v. Lizaraga, No. 1:2017cv00545 - Document 24 (E.D. Cal. 2018)
Court Description: FINDINGS and RECOMMENDATIONS recommending that 12 Respondent's Motion to Dismiss be GRANTED re 1 Petition for Writ of Habeas Corpus signed by Magistrate Judge Erica P. Grosjean on 1/2/2018. Referred to Judge Ishii. Objections to F&R due within thirty (30) days. (Jessen, A)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 VENCIL GREEN, 11 Case No. 1:17-cv-00545-AWI-EPG-HC Petitioner, 12 13 v. 14 FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT’S MOTION TO DISMISS AND DISMISS PETITION FOR WRIT OF HABEAS CORPUS J. LIZARRAGA, (ECF No. 12) Respondent. 15 16 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 17 18 pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2009 convictions in Kings County 19 Superior Court Case No. 09CM7401. As the instant petition was filed outside 28 U.S.C. 20 § 2244(d)(1)’s one-year limitation period, the undersigned recommends granting Respondent’s 21 motion to dismiss. 22 I. 23 BACKGROUND On September 10, 2009, Petitioner pleaded no contest in Kings County Superior Court 24 25 Case No. 09CM7401 to resisting an officer and exposing himself. Petitioner was sentenced to an 26 imprisonment term of thirty-two months, to be served consecutive to Petitioner’s life term for a 1 27 prior conviction. (ECF No. 1 at 1 ; ECF No. 23-8). Petitioner did not appeal his sentence. 28 1 Page numbers refer to the ECF page numbers stamped at the top of the page. 1 On January 14, 2016,2 Petitioner filed a state petition for writ of habeas corpus in the 1 2 Kings County Superior Court, which denied the petition on March 29, 2016. (LDs3 2, 3). On 3 April 20, 2016, Petitioner filed another state habeas petition in the Kings County Superior Court, 4 which denied the petition as untimely on June 9, 2016. (LDs 4, 5). On January 5, 2017, Petitioner 5 filed a state habeas petition in the California Court of Appeal, Fifth Appellate District, which 6 denied the petition on January 26, 2017. (LDs 6, 7). On February 1, 2017, Petitioner filed a state 7 habeas petition in the California Supreme Court, which denied the petition as untimely on March 8 29, 2017. On April 10, 2017,4 Petitioner filed the instant federal petition for writ of habeas corpus. 9 10 (ECF No. 1). In his sole claim for relief, Petitioner asserts he was not competent to plead no 11 contest. On June 14, 2017, Respondent filed a motion to dismiss. (ECF No. 12). Petitioner has 12 filed an opposition, and Respondent has filed a reply. (ECF Nos. 15, 23). 13 II. 14 DISCUSSION 15 A. Statute of Limitations 16 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act 17 of 1996 (“AEDPA”). AEDPA imposes various requirements on all petitions for writ of habeas 18 corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. 19 Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). The instant petition was filed after the 20 enactment of AEDPA and is therefore governed by its provisions. AEDPA imposes a one-year 21 period of limitation on petitioners seeking to file a federal petition for writ of habeas corpus. 28 22 U.S.C. § 2244(d)(1). Section 2244(d) provides: 23 (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the 24 2 Pursuant to the se is filed “at the time . . [it is] delivered . . to the 25 prison authoritiesmailbox rule, a prothe prisoner’s habeas petitionv. Spearman, 764 F.3d. 1071, 1074 (9th Cir.. 2014) for forwarding to court clerk.” Hernandez (alteration in original) (internal quotation marks omitted) (quoting Houston v. Lack, 487 U.S. 266, 276 (1988)). The 26 mailbox rule applies to both federal and state habeas petitions. Campbell v. Henry, 614 F.3d 1056, 1059 (9th Cir. 27 28 2010). The Court notes that Respondent applied the mailbox rule in the motion to dismiss. (ECF No. 12 at 2 n.2). 3 “LD” refers to the documents lodged by Respondent on June 15, 2017. (ECF Nos. 13, 14). 4 Petitioner signed the petition on April 10, 2017. (ECF No. 1 at 10). The proof of service states that the petition was mailed to the Court by Mrs. Virginia S. Green on April 12, 2017. (ECF No. 1 at 22). The Court will deem the petition filed on April 10, 2017, the date more favorable to Petitioner. 2 1 judgment of a State court. The limitation period shall run from the latest of – 2 3 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 4 5 6 7 8 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 9 10 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 11 12 13 (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 14 28 U.S.C. § 2244(d). 15 In most cases, the limitation period begins running on the date that the petitioner’s direct 16 review became final or the expiration of the time for seeking such review. However, in the 17 opposition to the motion to dismiss, Petitioner appears to argue that the limitation period began 18 to run on a later date, January 3, 2016, when “perchance Petitioner discovered new evidence that 19 if a court accepted a plea[] from a defendant that another a court had just previously declared 20 gravely disabled and mentally incompetent, this was ineluctably a fundamental miscarriage of 21 justice.” (ECF No. 15 at 3). 22 Section 2244(d)(1)(D) provides that the one-year limitation period begins to run from 23 “the date on which the factual predicate of the claim or claims presented could have been 24 discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). “The ‘due 25 diligence’ clock starts ticking when a person knows or through diligence could discover the vital 26 facts, regardless of when their legal significance is actually discovered.” Ford v. Gonzalez, 683 27 F.3d 1230, 1235 (9th Cir. 2012) (emphasis added) (citing Hasan v. Galaza, 254 F.3d 1150, 1154 28 n.3 (9th Cir. 2001); Redd v. McGrath, 343 F.3d 1077, 1082 (9th Cir. 2003)). Here, however, 3 1 Petitioner’s claim is not based on facts of which Petitioner was unaware or facts that could not 2 have been discovered through due diligence until January 3, 2016. Rather, Petitioner discovered 3 the potential legal significance of a court accepting a guilty plea from a defendant who had 4 previously been declared gravely disabled and mentally incompetent by another court. Therefore, 5 Petitioner is not entitled to a January 3, 2016 limitation period commencement date pursuant to 6 § 2244(d)(1)(D). 7 Here, Petitioner was sentenced on September 10, 2009, and did not appeal. Therefore, the 8 judgment became final when Petitioner’s time for seeking review expired on November 9, 2009, 9 sixty days after Petitioner was sentenced. See Cal. R. Ct. 8.308. Pursuant to § 2244(d)(1)(A), the 10 one-year limitation period commenced running the following day, November 10, 2009, and 11 absent tolling, was set to expire on November 9, 2010. See Patterson v. Stewart, 251 F.3d 1243, 12 1246 (9th Cir. 2001) (citing Fed. R. Civ. P. 6(a)). 13 B. Equitable Tolling 14 The limitation period is subject to equitable tolling if the petitioner demonstrates “‘(1) 15 that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance 16 stood in his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) 17 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The petitioner bears the “heavy 18 burden” of showing that he is entitled to equitable tolling. Chaffer v. Prosper, 592 F.3d 1046, 19 1048 (9th Cir. 2010) (per curiam). Here, Petitioner contends he is entitled to equitable tolling 20 based on mental incompetence. (ECF No. 15 at 4). 21 In Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010), the Ninth Circuit articulated the 22 following standard for equitable tolling based on mental impairment: 23 24 25 26 27 (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. 28 4 (2) Second, the petitioner must show diligence in pursuing the claims to the extent he could understand them, but that the mental impairment made it impossible to meet the filing deadline under the totality of the circumstances, including reasonably available access to assistance. 1 2 3 4 Bills, 628 F.3d at 1099–1100 (footnote omitted) (citing Holland, 560 U.S. at 649). 5 1. Extraordinary Circumstance 6 In the opposition, Petitioner states that from 2009 to 2016 he was psychotic, hearing 7 voices, and was taking strong psychotropic medication. (ECF No. 15 at 2). Petitioner states that 8 he attempted suicide seven times during that time. (Id. at 3). Petitioner also claims that he was 9 declared gravely disabled and incompetent by an administrative law judge on May 20, 2009. (Id. 10 at 2). Respondent has attached to the reply Petitioner’s mental health records from 2009 to the 11 present, which indicate that he has been diagnosed with bipolar disorder, exhibitionism, and 12 antisocial personality disorder throughout his incarceration. (ECF No. 23 at 8–9 and citations 13 thereto). 14 The Supreme Court has recognized that “[m]ental illness itself is not a unitary concept. It 15 varies in degree. It can vary over time. It interferes with an individual’s functioning at different 16 times in different ways.” Indiana v. Edwards, 554 U.S. 164, 175 (2008). For example, in Yeh v. 17 Martel, 751 F.3d 1075 (9th Cir. 2014), the Ninth Circuit found that equitable tolling was not 18 warranted where the petitioner “repeatedly sought administrative and judicial remedies,” 19 including filing state habeas petitions in three different California venues, which “refute[d] a 20 claim of impairment so debilitating that one could not ‘rationally or factually’ understand the 21 meaning of a deadline.” 751 F.3d at 1078. See also Roberts v. Marshall, 627 F.3d 768, 773 (9th 22 Cir. 2010). Accordingly, the Court will undertake a review of the relevant time period and 23 determine whether at any point Petitioner’s mental impairment was so severe that he “was unable 24 rationally or factually to personally understand the need to timely file” or that his “mental state 25 rendered him unable personally to prepare a habeas petition and effectuate its filing.” Bills, 628 26 F.3d at 1100. 27 /// 28 /// 5 a. November 10, 2009 to May 17, 2010 1 In October 2009 Petitioner commenced a § 1983 civil rights action in this Court. Green v. 2 3 David, No. 1:09-cv-01747-AWI-GBC (E.D. Cal. Oct. 5, 2009).5 From November 2009 to May 4 2010, Petitioner filed various administrative appeals. (ECF No. 23-5 at 177, 182, 186–88, 196, 5 203, 207–08, 212, 217, 219, 297). On March 29, 2010, Petitioner filed a motion for a temporary 6 restraining order, and on April 4 and May 17, 2010,6 Petitioner filed sworn affidavits in the 7 § 1983 action. Green, No. 1:09-cv-01747-AWI-GBC, ECF Nos. 10–12. On May 20, 2009, prior to the commencement of the limitation period, an administrative 8 9 law judge found by clear and convincing evidence that as a result of a mental defect or mental 10 disorder, Petitioner was gravely disabled and incompetent to refuse medications and a danger to 11 others. The administrative law judge ordered that Petitioner may be involuntarily administered 12 psychotropic medication for a period of one year, from May 20, 2009 to May 19, 2010. (ECF 13 No. 23-1 at 216). However, in light of Petitioner’s extensive administrative appeals and multiple 14 court filings, the Court finds that Petitioner’s mental condition was not so severe that he “was 15 unable rationally or factually to personally understand the need to timely file” or that his “mental 16 state rendered him unable personally to prepare a habeas petition and effectuate its filing.” Bills, 17 628 F.3d at 1100. Accordingly, Petitioner has not established the existence of an extraordinary 18 circumstance from November 10, 2009, when the limitation period commenced, to May 17, 19 2010—a period of 189 days. b. May 18, 2010 to September 1, 2010 20 Based on the records submitted by Respondent, Petitioner was admitted into an inpatient 21 22 treatment program on June 21, 2010 and discharged on August 5, 2010. (ECF No. 23-1 at 88, 23 93). The Court assumes, without deciding, that Petitioner’s mental condition was severe enough 24 to constitute an extraordinary circumstance during this period. In support of such an assumption 25 is the fact that during this period, Petitioner did not file any administrative appeals and took no 26 27 28 5 The Court may take judicial notice of its own records in other cases. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 6 Pursuant to the prison mailbox rule, “a legal document is deemed filed on the date a petitioner delivers it to the prison authorities for filing by mail.” Lott v. Mueller, 304 F.3d 918, 921 (9th Cir. 2002) (citing Houston v. Lack, 487 U.S. 266, 270–71 (1988)). 6 1 action in his § 1983 civil rights case. Accordingly, the Court assumes the existence of an 2 extraordinary circumstance from May 18, 2010 to September 1, 2010.7 c. September 2, 2010 to February 21, 2011 3 Petitioner filed objections to findings and recommendation issued in his § 1983 action on 4 5 September 2, 2010, in addition to two motions later that month. Green, No. 1:09-cv-01747-AWI6 GBC, ECF Nos. 15, 20, 21. Petitioner also commenced another § 1983 prisoner civil rights 7 action and filed motions to proceed in forma pauperis and for preliminary injunction. Green v. 8 Ferguson, No. 1:10-cv-01768-AWI-JLT (E.D. Cal. Sept. 27, 2010), ECF Nos. 1–3. Petitioner 9 filed administrative appeals on September 25, October 12, and November 21, 2010. (ECF No. 10 23-5 at 155, 162). On January 23 and 27, and February 21, 2011, Petitioner filed motions in his 11 earlier § 1983 proceeding. Green, No. 1:09-cv-01747-AWI-GBC, ECF Nos. 30, 33, 37. In light of Petitioner’s administrative appeals and court filings, the Court finds that 12 13 Petitioner’s mental condition was not so severe that he “was unable rationally or factually to 14 personally understand the need to timely file” or that his “mental state rendered him unable 15 personally to prepare a habeas petition and effectuate its filing.” Bills, 628 F.3d at 1100. 16 Accordingly, Petitioner has not established the existence of an extraordinary circumstance from 17 September 2, 2010 to February 21, 2011—a period of 173 days. d. February 23, 2011 to August 9, 2011 18 On February 23, 2011, an administrative law judge found by clear and convincing 19 20 evidence that as a result of a mental defect or mental disorder, Petitioner was a danger to himself. 21 The administrative law judge ordered that Petitioner may be involuntarily administered 22 psychotropic medication for a period of 180 days, from February 23, 2011 to August 21, 2011. 23 (ECF No. 23-1 at 196). The Court assumes, without deciding, that Petitioner’s mental condition 24 was severe enough to constitute an extraordinary circumstance from February 22, 2011 to 25 August 9, 2011, a period wherein Petitioner could be involuntarily administered psychotropic 26 7 Petitioner did not file any administrative appeals or documents in his § 1983 case from May 18, 2010 to September 27 1, 2010, which encompasses the time Petitioner was admitted into the inpatient treatment program. The Court will give Petitioner the benefit of the more favorable dates and assume the existence of an extraordinary circumstance 28 during this period. 7 1 medication and did not file any administrative appeals or documents in his § 1983 civil rights 2 proceedings. 3 4 e. August 10, 2011 to February 13, 2012 On August 10, 2011, Petitioner filed a response to a court order in Case No. 1:10-cv- 5 01768-AWI-JLT. Green, No. 1:10-cv-01768-AWI-JLT, ECF No. 12. On August 17, 2011, an 6 administrative law judge denied a petition to involuntary medicate Petitioner. (ECF No. 23-1 at 7 185). Petitioner filed documents in his § 1983 cases in October and November 2011 in addition 8 to filing motions for preliminary injunction on February 13, 2012. Green, No. 1:09-cv-017479 AWI-GBC, ECF Nos. 41, 45, 47; Green, No. 1:10-cv-01768-AWI-JLT, ECF No. 26. 10 From August 2011 to February 2012, progress notes indicate that Petitioner is “oriented 11 and alert,” either “stable” or “stabilizing,” and that effective communication was achieved. (ECF 12 No. 23-1 at 141, 145, 147–49, 153, 155–57, 162–66, 168–71, 175, 181, 188; ECF No. 23-2 at 13 163–65, 167, 169–70, 172). Petitioner’s attention and concentration was described as engaged. 14 Petitioner’s speech was described as cohesive, clear, responsive, and spontaneous. Petitioner’s 15 memory was described as intact and consistent. Petitioner’s intellectual functioning was 16 described as intact, average, and high. Petitioner’s thought process was described as linear, 17 logical, and goal-oriented. Petitioner’s thought content was described as within normal limits and 18 reality-based. Petitioner denied hallucinations, suicidal ideation, and homicidal ideation, and 19 there was no discernment of any delusions. (ECF No. 23-2 at 173, 178, 186). 20 Based on the foregoing, the Court finds that Petitioner’s mental condition was not so 21 severe that he “was unable rationally or factually to personally understand the need to timely 22 file” or that his “mental state rendered him unable personally to prepare a habeas petition and 23 effectuate its filing.” Bills, 628 F.3d at 1100. Accordingly, Petitioner has not established the 24 existence of an extraordinary circumstance from August 10, 2011 to February 13, 2012—a 25 period of 188 days. 26 27 f. Summary As set forth above, Petitioner has not established the existence of an extraordinary 28 circumstance for at least the following time periods: November 10, 2009 to May 17, 2010 (189 8 1 days); September 2, 2010 to February 21, 2011 (173 days); and August 10, 2011 to February 13, 2 2012 (188 days). This adds up to a total of 550 days, which exceeds the one-year limitation 3 period. 4 2. Diligence 5 In order to be entitled to equitable tolling, a petitioner must have exercised “reasonable 6 diligence, not maximum feasible diligence.” Holland, 560 U.S. at 653 (citations and internal 7 quotation marks omitted). “The standard for reasonable diligence does not require an 8 overzealous or extreme pursuit of any and every avenue of relief. It requires the effort that a 9 reasonable person might be expected to deliver under his or her particular circumstances.” Doe v. 10 Busby, 661 F.3d 1001, 1015 (9th Cir. 2011). “To determine if a petitioner has been diligent in 11 pursuing his petition, courts consider the petitioner’s overall level of care and caution in light of 12 his or her particular circumstances.” Id. at 1013. The Ninth Circuit has held that “diligence 13 during the existence of an extraordinary circumstance is the key consideration.” Gibbs v. 14 Legrand, 767 F.3d 879, 892 (9th Cir. 2014). However, Petitioner’s diligence before and after the 15 extraordinary circumstance is “[a]lso relevant” and “may be illuminating.” Id. 16 With respect to equitable tolling claims based on a mental impairment, the Ninth Circuit 17 has held that “the petitioner must show diligence in pursuing the claims to the extent he could 18 understand them, but that the mental impairment made it impossible to meet the filing deadline 19 under the totality of the circumstances, including reasonably available access to assistance.” 20 Bills, 628 F.3d at 1100 (citing Holland, 560 U.S. at 649). Here, Petitioner has failed to make any 21 allegations as to what steps he took to diligently pursue his federal claims at the time the 22 extraordinary circumstance stood in his way. Petitioner does not provide details of any specific 23 action he took in pursuing the claims to the extent he could understand them. Therefore, the 24 Court finds that Petitioner has not met his burden in establishing that he has been pursuing his 25 rights diligently. 26 /// 27 /// 28 /// 9 1 3. Conclusion 2 In sum, Petitioner has not established that he is entitled to equitable tolling. Although the 3 Court has assumed that for certain periods of time Petitioner’s mental state constituted an 4 extraordinary circumstance, Petitioner has not established the existence of an extraordinary 5 circumstance for at least 550 days, which exceeds the one-year limitation period. Moreover, 6 Petitioner has not demonstrated that he pursued his rights diligently. 7 C. Statutory Tolling 8 The “time during which a properly filed application for State post-conviction or other 9 collateral review with respect to the pertinent judgment or claim is pending shall not be counted 10 toward” the one-year limitation period. 28 U.S.C. § 2244(d)(2). However, § 2244(d) “does not 11 permit the reinitiation of the limitations period that has ended before the state petition was filed.” 12 Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Here, the limitations period expired 13 prior to when Petitioner’s first state habeas petition was filed on January 14, 2016. Accordingly, 14 Petitioner is not entitled to statutory tolling under § 2244(d)(2), and the instant federal petition is 15 untimely. 16 III. 17 RECOMMENDATION 18 Accordingly, the Court HEREBY RECOMMENDS that: 19 1. Respondent’s motion to dismiss (ECF No. 12) be GRANTED; and 20 2. The petition for writ of habeas corpus be DISMISSED as untimely. 21 This Findings and Recommendation is submitted to the assigned United States District 22 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 23 Rules of Practice for the United States District Court, Eastern District of California. Within 24 THIRTY (30) days after service of the Findings and Recommendation, any party may file 25 written objections with the court and serve a copy on all parties. Such a document should be 26 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the 27 objections shall be served and filed within fourteen (14) days after service of the objections. The 28 assigned United States District Court Judge will then review the Magistrate Judge’s ruling 10 1 pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within 2 the specified time may waive the right to appeal the District Court’s order. Wilkerson v. 3 Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 4 Cir. 1991)). 5 6 7 8 IT IS SO ORDERED. Dated: January 2, 2018 /s/ UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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