FINDINGS AND RECOMMENDATIONS

GREGORY G. HOLLOWS, Magistrate Judge.

Introduction

Petitioner, a state prisoner proceeding pro se, has filed a petition pursuant to 28 U.S.C. § 2254. This case proceeds on petitioner's first amended petition. On February 6, 2004, petitioner was convicted in Shasta County Superior Count of escape by force or violence (Cal. Pen. Code § 4532(b)(2)) and simple escape (Cal. Pen. Code § 4532(b)(1)), was found to have had two prior strike convictions and was sentenced to a term of 27 years to life.1 Petition, p. 1; Motion to Dismiss (MTD), p. 1, citing Respondent's Lodged Document 4, p. 1. In this petition, petitioner raises the following grounds, alleging violations of his rights under both the state and federal constitutions: 1) due process violation when the terms of a prior (1991) plea bargain involving future prison sentence enhancements were reneged upon in the imposition of the sentence in the instant case; 2) ineffective assistance of counsel when trial counsel failed to investigate terms of the prior plea agreement with respect to future enhancements and to seek specific performance thereof; 3) trial court error violated due process when evidence petitioner threatened Officer Hildenstab with a gun was allowed; 4) trial court violated due process by refusing petitioner's requested instruction that would have informed jury that petitioner's gun threat was not force. See Petition.

Motion to Dismiss

Respondent moves for dismissal on the ground the instant petition is untimely under the AEDPA. See MTD. .

The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(d)(1):

Under 28 U.S.C. § 2244(d)(2):

Following the March 4, 2005, affirmance of judgment by the state appellate court, petitioner filed a petition for review in the California State Supreme Court on April 11, 2005, which was denied on May 11, 2005. MTD, p. 3, citing Rsp. Lodged Docs. 4-6. Petitioner's conviction became final on August 9, 2005, ninety (90) days after the state supreme court denied his petition for review on direct appeal on May 11, 2005. Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999) ("holding] that the period of `direct review' in 28 U.S.C. § 2244(d)(1)(A) includes the [ninety-day] period within which a petitioner can file a petition for a writ of certiorari with the United States Supreme Court, whether or not the petitioner actually files such a petition."). As respondent observes (MTD, p. 3), the AEDPA statute began to run the following day, on August 10, 2005. Patterson v. Stuart, 251 F.3d 1243, 1246 (9th Cir. 2001). Therefore, absent any applicable tolling, petitioner had until August 9, 2006, to file a timely federal petition.

Petitioner's first petition for writ of habeas corpus in the state superior court, by liberal application of the mailbox rule,2 was filed on December 2, 2009 (but file-stamped December 7, 2009), and was denied on January 27, 2010, citing, inter alia, In re Robbins, 18 Cal.4th 770, 780-781 (1998). Rsp. Lodged Docs. 11-12. His petition to the Third District Court of Appeal, per mailbox rule, was filed on March 11, 2010 (file-stamped April 14, 2010), and was denied on April 22, 2010. Rsp. Lodged Docs. 13-14. His habeas petition to the state supreme court, on May 3, 2010, under mailbox rule (file-stamped on May 6, 2010), was denied on December 15, 2010 (with text docket entry citing In re Robbins, 18 Cal.4th 770, 780 (1998). Rsp. Lodged Docs. 15-16. Petitioner filed his original federal habeas petition (file-stamped March 1, 2001), by application of the mailbox rule, on February 14, 2011.

As respondent observes, both the Shasta County Superior Court and the California Supreme Court, citing In re: Robbins, supra, found the petition untimely. MTD, p. 3. The United States Supreme Court has explained that in order for a state habeas petition to be "properly filed" for purposes of statutory tolling, the petition's delivery and acceptance must be in compliance with the laws and rules governing such filings. Pace v. DiGuglielmo, 544 U.S. 408, 413-14, 125 S.Ct. 1807 (2005). "[T]ime limits, no matter their form, are `filing' conditions." Pace, at 417, 125 S.Ct. at 1814. "When a post-conviction petition is untimely under state law, that is the end of the matter for purposes of § 2244(d)(2)." Id. at 414, 125 S.Ct. at 1812.

In addition, as respondent argues, petitioner did not file his initial state court habeas petition until December [2 or] 7, 2009, more than three years after the expiration of the statute of limitations on August 9, 2006. MTD, p. 4. Section 2244(d)(2) can only pause a clock not yet fully run; it cannot "revive" the limitation period once it has run (i.e., restart the clock to zero). Thus, a state court habeas petition filed beyond the expiration of AEDPA's statute of limitations does not toll the limitation period under § 2244(d)(2). See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir.2001). Petitioner filed his original federal habeas petition, by application of the mailbox rule, on February 14, 2011. Therefore, petitioner is time-barred by four and a half years from pursuing this action unless he can show entitlement to equitable tolling. From the outset, petitioner expressly conceded his petition to be untimely under the one-year AEDPA statute of limitations in both the original [dismissed] petition (docket # 1, p. 39) and the first amended petition. See First Amended Petition, docket # 18, p. 33. He argues in his first amended petition for the application of equitable tolling on the grounds that he suffers from mental deficits. FAP, dkt # 18, pp. 33-43. He argues in his opposition that his petition should be equitably based on his being mentally impaired during the filing period, citing the relatively recent "two part Bills test," and asks for an evidentiary hearing to prove his mental impairment during the filing period. Opposition (Opp.), p. 1, citing Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010).

Applicable Equitable Tolling Standards

The Supreme Court has fairly recently held "like all 11 Courts of Appeals that have considered the question . . . that § 2244(d) is subject to equitable tolling in appropriate cases." Holland v. Florida, ___ U.S. ___, 130 S.Ct. 2549, 2560 (2010). Petitioner relies on Laws v. Lamarque, 351 F.3d 919 (9th Cir. 2003), for support for his argument for equitable tolling based on a claim of mental illness. Noting therein that equitable tolling is available in this circuit only when "`when extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time' and `the extraordinary circumstances were the cause of his untimeliness,'" the Ninth Circuit observed that grounds for equitable tolling under § 2244 (d) are "highly fact-dependent." Laws, supra, at 922, citing Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003); id., quoting Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000). The Ninth Circuit held that it was an abuse of discretion for the district court to deny Laws's petition, where he claimed he was mentally ill between April 23, 1996 (the date of AEDPA's enactment) and May 16, 2000, when his first state habeas petition was filed and entitled to equitable tolling, without the court's having ordered development of the factual record supporting the claim. Id., at 922-23. The case also makes clear that the Ninth Circuit observed that it had previously "held that a `putative habeas petitioner's mental incompetency [is] a condition that is, obviously, an extraordinary circumstance beyond the prisoner's control,' so `mental incompetency justifies equitable tolling' of the AEDPA statute of limitations." Laws, supra at 923, citing Calderon v. U. S. Dist. Ct. (Kelly), supra, 163 F.3d at 541. In doing so, the Laws Court noted, as a backdrop, that the trial court had expressed its concern about Laws's competency and had ordered psychiatric examinations and a hearing under Cal. Penal Code § 1368, and had found, in the face of conflicting expert testimony that Laws was "`for the present at least'" competent to stand trial. Laws, supra, at 921. The Laws Court stated that the determination of competency at the time of trial (despite the evidence of serious mental illness) did not bear on the competency of Laws for the period of time at issue for which no medical records had been provided.

A Ninth Circuit panel has set forth that "eligibility for equitable tolling due to mental impairment requires the petitioner to meet a two-part test:"

Bills v. Clark, 628 F.3d 1092, 1099-1100 (9th Cir. 2010) [emphasis in original].

At footnote 2, the panel clarified that, under the first prong, the required elements are broader, that is, disjunctive rather than conjunctive, stating:

"The court should examine whether the petitioner's mental impairment prevented him from locating assistance or communicating with or sufficiently supervising any assistance actually found." Bills v. Clark, 628 F.3d at 1101.

Id. at 1101.

Petitioner seeks to analogize his circumstances to those of the petitioner in Laws v. Lamarque, contending, in his first amended petition, that he, like petitioner Laws, had a Cal. Pen. Code § 1368 hearing and that he, like Laws, "was found to be competent to stand trial but after direct appeal it all went bad for Laws, just as it did here for petitioner. . . ." FAP, p. 34. Petitioner avers that he is "entitled to further factual development of, or an evidentiary hearing on[,] the issue of whether his mental illness prevented him from timely filing his petition for writ of habeas corpus . . . ." Id. Petitioner avers that notwithstanding his having been found competent to stand trial, he was "mentally incompetent during the period of time in which his petition should have been filed." Id. In his brief opposition to the motion (generally referencing his more detailed presentation in his FAP), petitioner asks for an evidentiary hearing to prove his mental impairment during the filing period. Opposition (Opp.), p. 1, citing Bills v. Clark, 628 F.3d 1092.

The period for which petitioner must show entitlement to equitable tolling is the time frame which includes/precedes the statutory expiration date for filing a federal petition (August 9, 2006) running through to the date of the filing of his first state court habeas petition (December 2, 2009), or at a minimum, a period of three years and four months. The records petitioner primarily relies on, however, as respondent points out, date back to 2003. MTD, p. 4. While petitioner notes (FAP, p. 36) from the Cal. Pen. Code § 1026 psychological evaluation by Kent Caruso, Ph.D, identified as a licensed clinical psychologist, dated April 28, 2003 (Exhibit J to first amended petition (FAP) at dkt # 8-1, pp. 54-62) and filed on May 5, 2003, that Dr. Caruso found petitioner was "not very articulate, and very much lacking in insight," he also considered petitioner "to be a good informant and historian." Dkt #8-1, Ex. J, p. 55.

Dr. Caruso reported, under "Neurological-Intellectual Presentation," inter alia, the following:

Dkt #1-1, Ex. J, p. 56.

Under "Mental Status Presentation," Dr. Caruso reported:

Id., at 55.

In his clinical profile of petitioner, Dr. Caruso asks the question whether or not petitioner's "significant poly drug abuse contributed to and/or exacerbated Mr. Enquist's emotional and psychological problems" and whether petitioner's symptoms of "Bipolar Disorder" (which diagnosis Caruso places in quotation marks and expresses doubt about3) or of "more recently diagnosed Adult Deficit Hyperactivity Disorder" were "based solely in physiological malfunction or a messed up brain chemistry" or were the result of "the introduction of lots of drugs such as LSD and PCP." Id., at 59.

Petitioner also references Dr. Caruso's statement in his clinical profile that petitioner "is definitely not the brightest guy." FAP, p. 37; Dkt #8-1, Ex. J, at 59.

Id., at 59-60.

Dr. Caruso's conclusion was that there was little or no evidence that suggested petitioner was suffering from a serious mental disorder that rendered him incapable of understanding the nature and quality of his actions on or around June 5, 20024 (the date of the commitment offense). Id., at 61-62. Moreover, respondent points to Dr. Caruso's defense witness testimony at the competency trial (on cross-examination), wherein, respondent asserts, he estimated that at least 50 percent of people in prison would have IQ scores similar to that of petitioner. Respondent's Lodged Document 19, Reporter's Transcript (RT), p. 139. However, what he actually said, quoting the transcript, was even more dramatic in terms of petitioner's comparative IQ:

Id.

An August 13, 2003, letter directed to Judge Curle of the Shasta County Superior Court from a Dr. Aravind Pai, reported on Dr. Aravind's psychiatric evaluation of petitioner made on August 3, 2003, pursuant to Cal. Pen. Code § 1368, to determine whether petitioner was competent to stand trial and to assist his attorney in his defense in a rational manner, concluding that petitioner was able to do so. Dkt # 8-1, Ex. K, pp. 64-66. Although finding that petitioner had a long history of polysubstance abuse as well as past antisocial behaviors, used poor judgment and was "not a very bright man" academically, who might intellectually "be functioning below average to low average intelligence," the psychiatrist determined that petitioner showed no evidence of psychotic symptoms or any major mental illness, understood the charges, knew right from wrong, was "in total touch with reality," and was "not confused" or "disoriented." Id., at 66.

Petitioner refers to a review by a Dr. Carlson, a clinical psychologist who assessed petitioner in 2003 both under Cal. Pen. Code §§ 1026 and 1368 (RT, 27, 29). FAP, p. 39. Petitioner references Dr. Carlson's testimony that petitioner reported that he had hallucinations (apparently petitioner stated this was as a result of abusing PCP since he was "a young kid"), confirmed that petitioner had a score of 72 in the verbal section of the Wechsler Adult Intelligence Scale Revised test he was administered, meaning he was in the third percentile and 97% of the population would have scored higher, and that petitioner had reported that he had been in Special Ed as a child. RT 32, 38-40. Petitioner references Dr. Carlson's testimony that petitioner had reported that he had been prescribed Sinequan and Tegretol in the past and that was being prescribed in the jail at that time Sinequan, Clonopin and Elavil which drugs Dr. Carlson testified were designed to treat mental or behavioral symptoms. FAP, p. 39, citing RT 51. Dr. Carlson reported that on the Stroop color test, petitioner scored a 77, which the doctor called "very uncommon" and which probably meant petitioner "for starters, is not a very good reader." FAP, p. 39 & RT 52. On the second part of the Stroop test, a color word test, petitioner scored a 38, which put him behind 99% of people taking that test. FAP, 39-40, RT 53-54. Interestingly, petitioner also notes that Dr. Carlson testified that petitioner, in his opinion, measured lower than he was capable of (FAP, p. 40, RT 57:

RT 57.

In part, this assessment was based on "the fact his vocabulary is high." RT 57. As respondent points out, Dr. Carlson opined that while petitioner tested borderline, that this was "a low estimate of his innate ability" and that if he were to adjust the assessment one way or another he would "tend to go up a few points for [petitioner] rather than go down into the mildly retarded ranges, given his ability to communicate." MTD, p. 5, RT 58. Based on his testing, Dr. Carlson found that petitioner was not mentally retarded and had conceptual capacity. RT 97. While Dr. Carlson did believe that petitioner had "a mental disorder" based on "some form of depression" and a "substance abuse diagnosis," he did not observe bizarre behavior during his interview of petitioner and found no evidence of delusions, hallucinations, mania, formal thought disorder or of impairment of verbal coherence. MTD, p. 5 & RT 97, 107. Dr. Carlson believed that petitioner would be able to assist his counsel in a meaningful way. MTD, p. 5, citing RT 122.

Petitioner herein has produced a large volume of his medical records. See dkt # 9, totaling 222 pages, going back as far as 2002. While these records show that petitioner has long been on a number of medications, included psychotropic, and suffered depression (logically, in light of his life sentence) within periods relevant to this action, it does not demonstrate the extraordinary circumstance that precluded him from initiating his state habeas corpus filings sooner than he did and makes no showing as to how things improved for him to be able to file them when he did. As respondent argues, petitioner himself states that "[t]here is no magic pill for retardation to make a person smarter." MTD, p. 8, citing FAP (dkt # 8), [p. 42].5 Petitioner contends that his mental capacity has not increased since his trial Cal. Pen. Code § 1026 and § 1368 evaluations and that he continues to receive daily psychiatric medications and to be diagnosed as CCCMS within the prison mental health program. Id. However, by this, petitioner proves too much. By conceding that he still suffers from the same mental deficits to this day, he does not show what obstructed him from making his state court habeas filings until he ultimately did and the instant filing as well. In other words, he does not demonstrate that he was sufficiently diligent in trying to meet the requisite timelines during the period for which he seeks equitable tolling if his situation the status quo remains unchanged. And what petitioner fails to provide is any indication of what changed during and beyond the AEDPA statutory period up to his filing of his state court petitions. In other words, during the entire period up to this very point in time, petitioner has had the same intellectual challenges and received medication and was on the CCCMS level of care, so that petitioner does not show the requisite extraordinary circumstance when he fails to meet his burden to show how he was precluded for an extended period of time to commencing the filing of his habeas petitions, a period during which he was evidently able to file grievances, etc. Petitioner emphasizes in his opposition the affidavit signed by an inmate named Andrew Martin, which petitioner insists shows he "was unable to file a simple state habeas corpus petitioner on his own." Opp., p. 2. However, while the affidavit by Inmate Martin indicates that petitioner apparently had great difficulty in filing the state habeas petition to the state court of appeal,6 Mr. Martin is quite clear that he only assisted petitioner with the filing and not the preparation of the petition (although he does state that he worked on the instant federal petition). Martin Affidavit, FAP, p. 31. Although Inmate Martin correctly recognizes that he is "not even remotely qualified" to make a determination that petitioner is "mentally challenged," he believes him to be. None of this, however, demonstrates why petitioner could not have initiated the initial state court filing in the superior court earlier, which he apparently filed correctly, whether he had assistance or not in preparing any or all of his state court petitions. Thus, although petitioner has shown that he suffers from conditions requiring medication, he does not come close to making the showing of the second prong of the Bills standard, i.e., he does not show he was diligent in pursuing his claims and any mental impairment he suffered made it impossible for him "to meet the filing deadline under the totality of the circumstances, including reasonably available access to assistance." Bills v. Clark, 628 F.3d at 1100.

The court will not order an evidentiary hearing when the important point of diligence is left completely unaddressed by petitioner.

Accordingly, IT IS HEREBY RECOMMENDED that respondent's September 8, 2011 (docket # 23), motion to dismiss the petition as untimely be granted and this case be closed.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).