Hawes v. Marin County Superior Court, No. 3:2017cv01402 - Document 56 (N.D. Cal. 2019)
Court Description: AMENDED ORDER GRANTING 39 MOTION TO DISMISS (CORRECTING OMISSION IN SECOND SENTENCE OF STATEMENT); GRANTING 45 49 ADMINISTRATIVE MOTIONS TO FILE UNDER SEAL. Signed by Judge Alsup on 7/23/2019. (whalc1, COURT STAFF) (Filed on 7/23/2019)
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Hawes v. Marin County Superior Court Doc. 56 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 United States District Court For the Northern District of California 10 Petitioner, 11 12 13 14 No. C 17-01402 WHA TERRY R. HAWES, AMENDED ORDER GRANTING MOTION TO DISMISS (CORRECTING OMISSION IN SECOND SENTENCE OF STATEMENT) v. DEBBIE ASUNCION, Warden, Respondent. / 15 16 INTRODUCTION 17 In this habeas case brought by a state prisoner under 28 U.S.C. § 2254, respondent has 18 filed a motion to dismiss on the ground that the petition is barred by the statute of limitations. 19 Petitioner opposes. For the reasons stated below, the motion is GRANTED. 20 21 STATEMENT On several occasions during the underlying criminal proceedings, the state trial court 22 found petitioner Terry Hawes incompetent to stand trial and committed him to a state hospital to 23 be involuntarily medicated. The saga began in 2005, three months after petitioner’s arrest, when 24 the trial court first suspended criminal proceedings and found petitioner incompetent to represent 25 himself or cooperate with counsel. In early 2006, the trial court ordered petitioner moved to 26 Atascadero State Hospital for the involuntary administration of antipsychotic medications. After 27 approximately six weeks, in June 2006, the trial court found petitioner competent as long as he 28 continued to take his medications (Pet. Exh. 1, 3 at 8–16). Dockets.Justia.com 1 In September 2006, petitioner discontinued his medications. The trial court again 2 suspended proceedings based on concerns regarding petitioner’s competency. Later that year, in 3 December 2006, a jury found petitioner incompetent to stand trial and the trial court ordered 4 petitioner committed to Atascadero State Hospital for the involuntary administration of 5 psychiatric medications. Throughout 2007 and 2008, the trial court reinstated and suspended 6 criminal proceedings multiple times based on findings regarding petitioner’s competency (or lack 7 thereof) to stand trial (Pet. Exh. 3 at 23–44). 8 United States District Court For the Northern District of California 9 A month after the reinstatement of criminal proceedings in April 2009, the trial court learned that petitioner again refused to take his medications and was decompensating. A May 10 2009 order directed petitioner’s return to Atascadero and, in June 2009, the trial court had 11 petitioner housed at Napa State Hospital to permit the involuntary administration of medication 12 throughout his trial (Pet. Exh. 3 at 48–50; Pet. Exh. 21 at 573; Pet. Exh. 24). 13 Also in June 2009, a jury found petitioner guilty of rape by foreign object, in violation of 14 Section 289(a)(1) of the California Penal Code, attempted forcible rape, in violation of Sections 15 261(a)(2) and 664) of the California Penal Code, criminal threats, in violation of Section 422 of 16 the California Penal Code, and assault with intent to commit rape, in violation of Section 220 of 17 the California Penal Code. That jury could not reach a verdict on a second count of rape by a 18 foreign object (Resp. Exh. 1 at 1–3). 19 After a retrial in August 2009, a second jury found petitioner guilty of rape by a foreign 20 object and found that he had inflicted great bodily injury in the commission of the crime. 21 Although the trial court had acknowledged in the month prior to the second trial that petitioner 22 was behaving differently than at the first trial, the judge found petitioner competent based on 23 information received from Napa State Hospital. The trial court sentenced petitioner to 33 years 24 and eight months to life in state prison (Resp. Exh. 1 at 1–3; Pet. Exh. 3 at 62–63; Pet. Exh. 28 at 25 1024–94). 26 In May 2010, petitioner began refusing to take medications and he was placed in the 27 psychiatric hospital at Corcoran State Prison. He continued to refuse to take medications after 28 being transferred to the psychiatric hospital at High Desert State Prison in June 2010. By July 2 1 2010, petitioner appeared acutely psychotic and delusional and involuntary medication was again 2 initiated. An interim order for involuntary medication was issued later that month. In August 3 2010, an order was issued authorizing petitioner’s involuntary medication for one year pursuant 4 to Keyhea v. Rushen, 178 Cal. App. 3d 526 (1986) (Pet. Exh. 4 at 251–73). United States District Court For the Northern District of California 5 In September 2011, the California Court of Appeal rejected all of petitioner’s claims of 6 trial error but found error in the sentencing on the counts of attempted forcible rape, criminal 7 threats, and attempted forcible rape. The state appellate court also noted that the abstract of 8 judgment erroneously reflected that two offenses were committed in 2006 instead of 2005, 9 reversing the judgment and remanding for resentencing on the three counts. The California 10 Supreme Court denied petitioner’s state petition for a writ of habeas corpus in November 2011 11 and denied review of his direct appeal in December 2011 (Resp. Exh. 1 at 39–40; Resp. Exhs. 12 2–4). 13 In January 2012, the trial court resentenced petitioner to 27 years and eight months to life 14 in state prison. Petitioner appealed the new sentence on the ground that the trial court failed to 15 calculate and credit him for time served between the dates of his original sentencing and his 16 resentencing. In July 2012, the trial court recalculated petitioner’s custody credits and issued 17 amended abstracts of judgment the same day. Petitioner did not appeal from the trial court’s 18 order recalculating his credits (Pet. Exh. 3 at 78–80; Pet. Exhs. 6–7).1 19 In March 2017, petitioner wrote a letter to Judge Thelton Henderson, which the court 20 clerk construed as an effort to seek habeas relief pursuant to 28 U.S.C. § 2254. The clerk opened 21 the instant action, notified petitioner that he needed to file a habeas petition to challenge his 22 conviction and sentence, and enclosed a form habeas petition and application to proceed in forma 23 pauperis. Later that year, an order dismissed the partially-completed petition with leave to 24 amend, noting that petitioner had failed to set forth any claims in his most recent letter. 25 Following the appointment of counsel to assist in presenting and pursuing his claims, petitioner 26 27 28 1 In September 2012, unaware that the trial court had already recalculated petitioner’s credits, the state appellate court reversed the judgment and remanded for a recalculation of petitioner’s credits between the original sentencing date and the resentencing date. Petitioner did not seek review. On remand, the trial court noted that petitioner’s custody credits had already been recalculated (Resp. Exhs. 6, 8; Pet. Exh. 3 at 81). 3 1 filed an amended habeas petition in May 2018. Respondent timely filed the instant motion to 2 dismiss (Dkt. Nos. 1–7). This order follows full briefing.2 ANALYSIS 3 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a statute of 4 5 limitations on petitions for writ of habeas corpus filed by state prisoners. Ordinarily, petitions 6 filed by prisoners challenging non-capital state convictions or sentences must be filed within one 7 year of the date on which the judgment became final after the conclusion of direct review or the 8 time passed for seeking direct review. 28 U.S.C. § 2244(d)(1). The parties agree that petitioner’s conviction became final, at the latest, in November 2012. United States District Court For the Northern District of California 9 10 Absent tolling, petitioner had until November 2013 to file his federal habeas petition. The instant 11 petition, however, was not filed until May 2018. Petitioner contends that due to mental illness the 12 limitations period should be equitably tolled from November 2012 (when petitioner’s conviction 13 became final) to October 2017 (when the undersigned appointed counsel). Because petitioner did 14 not file his amended habeas petition until May 2018, if petitioner was sufficiently competent to file 15 his federal habeas petition for six months or more during the period of nearly five years between 16 November 2012 and October 2017, then his petition must be dismissed as time-barred. 17 A petitioner is entitled to equitable tolling only if he shows “(1) that he has been pursuing 18 his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented 19 timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (citation and internal quotation marks 20 omitted). A petitioner must show that “the extraordinary circumstances were the cause of his 21 untimeliness, and that the extraordinary circumstances made it impossible to file a petition on 22 time.” Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (internal quotation marks and citations 23 omitted). Eligibility for equitable tolling due to mental impairment requires a petitioner to meet a 24 two-part test: (1) 25 26 First, a petitioner must show his mental impairment was an extraordinary circumstance beyond his control by demonstrating the impairment was so severe that either 27 28 2 Petitioner’s administrative motions to file under seal certain medical records (Dkt. Nos. 38, 45, 49) are GRANTED. 4 1 (a) petitioner was unable to 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 3 4 (2) 5 6 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. 7 Bills v. Clark, 628 F.3d 1092, 1099–1100 (9th Cir. 2010) (citations and footnote omitted). 8 Our court of appeals has stressed that the threshold necessary to trigger equitable tolling 9 is very high, “lest the exceptions swallow the rule.” Miranda v. Castro, 292 F.3d 1066 (9th Cir. United States District Court For the Northern District of California 10 2002) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). The test for 11 mental impairment requires an evaluation of how a petitioner’s mental impairment bore on his 12 ability to file. “The relevant question is: Did the mental impairment cause an untimely filing?” 13 Bills, 628 F.3d at 1100 n. 3 (citation omitted). For the reasons now discussed, this order 14 concludes that petitioner’s mental impairment did not make it impossible for him to timely file a 15 habeas petition on his own during the limitations period. 16 It is undisputed and well documented that petitioner is severely mentally ill and has 17 suffered from paranoid schizophrenia since at least 1987. But a showing of mental illness alone 18 will not necessarily toll the limitations period because most mental illnesses are treatable, and 19 with proper treatment many sufferers are capable of managing their own affairs. See Miller v. 20 Runyon, 77 F.3d 189, 192 (7th Cir.), cert. denied, 519 U.S. 937 (1996). Pursuant to various court 21 orders, petitioner has been regularly medicated throughout the relevant period. Importantly, 22 petitioner has failed to present evidence showing that when he was medicated, he nevertheless 23 suffered from symptoms which prevented him from timely filing the instant habeas petition. 24 Excluding a two-month period in 2013, petitioner has been involuntarily medicated 25 between August 2010 and the present. During this period, and pursuant to Keyhea v. Rushen, 26 178 Cal. App. 3d 526 (1986), the California Department of Corrections and Rehabilitation 27 (“CDCR”) sought and obtained a court order from an administrative law judge authorizing the 28 administration of long-term involuntary psychotropic medication to petitioner on the basis that 5 1 petitioner is gravely disabled and incompetent to refuse medication. As was true during the 2 underlying criminal proceedings, the lack of forced medication resulted in petitioner’s mental 3 decompensation. Within weeks, petitioner was walking around his room naked and defecating in 4 cell corners. CDCR quickly reconsidered and obtained a new order placing petitioner back on 5 involuntary anti-psychotic medication (Pet. Exhs. 4, 6). United States District Court For the Northern District of California 6 Despite petitioner’s claims that medication did not cure his delusions and impeded his 7 ability to think clearly, he has been able to lodge innumerable petitions with the district court over 8 the past ten years. These filings certainly demonstrate that his mental illness did not prevent him 9 from personally preparing a petition. Many of these letters and petitions were construed as civil 10 rights actions in which petitioner challenged the forced administration of antipsychotic 11 medications in prison (e.g., Case No. 12-cv-2024 WHA, Case No. 13-cv-1740 WHA, Case No. 12 14-cv-5387 WHA, Case No. 14-cv-5576 WHA). While an order dismissing one of these actions 13 described petitioner’s letter as “rambling and incoherent,” in each instance the undersigned could 14 glean that petitioner challenged his involuntary medication. Noting that “a[n] incompetent 15 individual shouldn’t realize they have avenues to pursue in complaints against those keeping them 16 incarcerated,” in one such letter he requested copies of his previously-filed complaints to show 17 his competence (Pet. Exh. 2 at 307). 18 Petitioner has also competently filed multiple petitions for habeas relief during the period 19 for which he seeks equitable tolling. In March 2014, for example, petitioner filed a coherent 20 petition for federal habeas relief in this district court. In that petition, he claimed that his trial 21 rights were violated when, after finding him competent, the trial court later permitted him to 22 represent himself at the preliminary hearing. He also challenged his arrest warrant. 23 Acknowledging that he needed to timely file the petition, he requested “Your Honor hearing this 24 writ please forgive any time lines on this writ as it took me a while to gather the evidence.” A 25 June 2014 order dismissed the petition because petitioner’s application to proceed in forma 26 pauperis did not include a certificate of funds signed and completed by a prison official, nor did it 27 include a trust account statement. (Case No. 14-cv-1439 WHA, Dkt. Nos. 1, 6). 28 6 United States District Court For the Northern District of California 1 In June 2014, he filed a state habeas petition with the Marin County Superior Court. 2 Although the superior court judge who denied the petition noted that “[i]n many respects, 3 petitioner’s complaints are simply incomprehensible,” such as petitioner’s claim of “seperation 4 of church and state violations,” the superior court nevertheless determined that petitioner also 5 raised claims that the trial court had erroneously denied petitioner’s request for a change of 6 venue and that the trial court had erred by permitting petitioner to represent himself. The 7 superior court denied the petition, finding that he failed to provide support for his claim 8 regarding the change of venue and that the trial court permitted petitioner to represent himself 9 for a period of ten days prior to trial (Dkt. No. 50-1 at 122–24). 10 In July 2014, petitioner filed another federal habeas petition in which argued that the 11 state trial court violated due process by allowing him to represent himself at his preliminary 12 hearing. He again asked the Court to “forgive any time lines on this writ.” After an order to 13 show cause issued, petitioner wrote letters to the district court concerning his petition throughout 14 2014 and 2015. In these letters, he opposed the respondent’s requests for extensions of time and 15 requested the appointment of counsel, an evidentiary hearing and for a copy of his habeas 16 petition. In other instances, he acknowledged that he understood the need to timely file his 17 federal habeas petition, arguing that “if the state claims time limits for this writ then they 18 shouldn’t have taken 4 years to gibe me a trial(s).” A May 2016 order granted the respondent’s 19 motion to dismiss the petition for failure to exhaust state judicial remedies (Case No. 14-cv-3189 20 WHA, Dkt. Nos. 1, 2, 7–10, 35). 21 And, in November 2016, petitioner filed another habeas petition in Marin County 22 Superior Court, which the superior court denied in February 2017 on the ground that the 23 allegations were conclusory and thus failed to state a prima facie case for relief (Pet. Exh. 9). 24 As our court of appeals has made clear in Yow Ming Yeh v. Martel, 751 F.3d 1075, 1078 25 (9th Cir. 2014) (citation omitted), such actions by petitioner belie any claim that his mental 26 illness was the but-for cause of his delay: 27 28 [The petitioner] repeatedly sought administrative and judicial remedies, and throughout these proceedings showed an awareness of basic legal concepts: he was able to make requests for assistance from an appeals coordinator and an interpreter at his administrative 7 1 hearings, and also to request assistance from a public defender after his conviction. Moreover, he was able to file a state habeas petition in three different California venues. These facts refute a claim of impairment so debilitating that one could not “rationally or factually” understand the meaning of a deadline. 2 3 4 So too here. In sum, given this history of medication, petitioner has failed to demonstrate that 5 his mental illness was so severe that he did not understand the need to timely file his petition or 6 was unable to personally prepare and file the petition. The letters, motions, and habeas petitions 7 that he has filed over the years show that he is aware of basic legal concepts and able to 8 effectuate filings on his own. United States District Court For the Northern District of California 9 In opposing respondent’s motion to dismiss, petitioner argues that even if the anti- 10 psychotic medications that he received “are somewhat effective at moderating his behavior . . . 11 they do not cure him of his delusions” (Opp. at 7). In support, petitioner primarily relies on 12 testimony from his competency jury trial in December 2006 — six years prior to the period for 13 which he seeks equitable tolling. At that time, forensic psychologist Dr. Shawn Adaire Johnston 14 testified that petitioner’s mental illness “render[ed] him incapable of thinking rationally about his 15 current legal situation or working with his attorney in preparing a rational defense” (Pet. Exh. 3 16 at 216). That same doctor, however, later testified that petitioner could be stabilized with 17 medications (RT 222:28–223:5, 233:11–17): 18 Defense Counsel:. Do you have an opinion as to any particular kind of treatment that can be rendered to Mr. Hawes to improve his psychological condition to a point where he would be able to assist, in a rational manner, his attorney in presenting a defense? 21 Dr. Johnston: Antipsychotic medication. It worked before. 22 ... 23 Prosecutor: Do you believe that Mr. Hawes, with the benefit of medication, can testify rationally? Dr. Johnston: The experience at Atascadero would indicate there's a very high probability that, after perhaps a month or two of appropriate antipsychotic medication, his delusions could be suppressed to the point where he would be capable of rational thought again, yes. 19 20 24 25 26 27 Next, petitioner points to CDCR’s medical records. Specifically, he points to one portion 28 of a “declaration in support of renewal of involuntary medication” written in 2012. There, when 8 1 asked to provide “[s]pecific acts (with approximate dates) in the recent past that show that the 2 inmate is actively psychotic or delusional and not capable of consenting,” the doctor explained 3 that petitioner “said he would not sign a writ of habeus [sic] corpus prepared by his attorney 4 because the patient did not write it. More to the point, he is unable to comprehend the nature of 5 his major illness, and is unable to understand how the medication prevents him from exhibiting 6 the conduct and behaviors which led to involuntary medications in the first place.” Earlier in 7 that same declaration, however, the doctor explained that while medicated, petitioner 8 “exhibit[ed] hyperverbal periods and [was] very concrete in his thinking,” but did not exhibit 9 other symptoms such as hallucinations, paranoia, disorientation, or “severely impaired United States District Court For the Northern District of California 10 judgment” (Pet. Exh. 4 at 240–47). 11 Petitioner argues that his incapacity to provide informed consent to psychiatric 12 medications demonstrates a lack of capacity to timely file the instant petition. To the contrary, 13 petitioner’s renewed Keyhea orders are based on determinations that “[b]ut for psychiatric 14 medication, [petitioner] would revert to the behavior that was the basis for the prior order 15 authorizing involuntary medication,” and that “[petitioner] lacks insight regarding [his] need for 16 psychiatric medication, such that it is unlikely that [petitioner] would be able to manage [his] 17 own medication and treatment regiment” (Pet. Exh. 7 at 2). As set forth above, petitioner has 18 demonstrated that despite his unwillingness to take medication when he is not forced to do so, he 19 has been able to seek judicial remedies. 20 Furthermore, even if it is the case that at some point in 2012, petitioner was unable to 21 comprehend the nature of his illness, it does not change the fact that petitioner was sufficiently 22 competent to file his federal habeas petition for six months or more between then and October 23 2017. Respondent has pointed to various examples in petitioner’s CDCR medical records that 24 indicate such. In particular, the psychiatric records from August 2014 to May 2016 demonstrate 25 that petitioner was not psychotic nor delusional during this period. None of the records from this 26 time period states that petitioner was psychotic or delusional. Rather these reports state, “while 27 medicated, [petitioner] demonstrates adequate skills to navigate his peers,” (Mot. Exh. 4 at 28 1041). Later reports echo these sentiments stating that petitioner “demonstrates an ability to 9 United States District Court For the Northern District of California 1 advocate for himself by requesting help when needed and outlining arguments in a linear 2 manner,” displays “thought processes [that] were clear and linear,” “presents as intelligent and 3 reads his Bible regularly,” and references letters he has written to judges in his legal case (id. at 4 964, 995, 1003, 1037, 1038). Accordingly, respondent has adequately demonstrated petitioner 5 was sufficiently competent to file his federal habeas petition for six months or more during the 6 period of nearly five years between November 2012 and October 2017, and the motion to 7 dismiss is GRANTED. 8 Finally, petitioner’s request for an evidentiary hearing is DENIED. Where, as here, the 9 record is amply developed and indicates that the petitioner’s mental incompetence was not so 10 severe as to cause the untimely filing of his habeas petition, a district court is not obligated to 11 hold evidentiary hearings to further develop the factual record. Roberts v. Marshall, 627 F.3d 12 768, 773 (9th Cir. 2010). 13 14 15 CONCLUSION For the reasons set forth above, respondent’s motion to dismiss is GRANTED. Judgment will be entered separately. 16 17 IT IS SO ORDERED. 18 19 Dated: July 23, 2019. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 10
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