BARBARA A. McAULIFFE, Magistrate judge.
Petitioner is a state prisoner who proceeded pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304. Pending before the Court is Petitioner's motion for reconsideration of the dismissal of his petition for untimeliness.
In Petitioner's motion, which was filed on August 14, 2013, Petitioner argues that he is entitled to equitable tolling of the statute of limitations because of his mental illness during the pertinent period of time. Petitioner's habeas petition was dismissed pursuant to Respondent's motion, which was considered after full briefing by the parties. The Court had vacated previously filed findings and recommendations because after they were filed, Petitioner submitted objections raising new matter that caused the Court to solicit additional documentation and briefing from the parties regarding Petitioner's allegations and arguments for equitable tolling of the statute of limitations. Thereafter the Magistrate Judge filed new findings and recommendations in June 2013. Petitioner filed objections to the findings and recommendations.
On August 7, 2013, the Court adopted the Magistrate Judge's findings and recommendations, granted the Respondent's motion to dismiss the petition, and dismissed Petitioner's petition for writ of habeas corpus as untimely; judgment was entered and served on Petitioner on the same day.
On August 14, 2013, Petitioner constructively filed
On August 29, 2013, Petitioner filed a notice of appeal from the judgment of dismissal.
On September 11, 2013, Respondent filed opposition to Petitioner's motion for reconsideration. No reply was filed.
On November 27, 2013, the Court of Appeals for the Ninth Circuit issued an order in the appeal in which it noted that because the appeal was filed during the pendency of a timely-filed "Fed. R. App. P. 4(a)(4) motion," the notice of appeal is ineffective until entry of this Court's order disposing of the motion. Further, the proceedings in the Court of Appeals will be held in abeyance pending this Court's resolution of the motion. (Doc. 43.)
On April 1, 2013, this Court deferred consideration of Petitioner's motion for reconsideration pending further submissions and ordered the record expanded to include Petitioner's medical records concerning his mental condition for the period of August 26, 2010, through July 20, 2012. The medical records were submitted along with additional argument by Respondent on May 15, 2014, and Petitioner replied on May 15, 2014.
Direct review of Petitioner's judgment concluded when the California Supreme Court (CSC) denied a petition for review on April 14, 2010. The statute of limitations would otherwise have begun running ninety days later on July 14, 2010. However, because Petitioner had already filed in June 2010 a habeas petition in the trial court (the Kern County Superior Court or KCSC), the pendency of the KCSC habeas petition statutorily tolled the running of the statute of limitations until August 25, 2010, when the KCSC denied the petition and sent notice of the denial to Petitioner.
The statute began to run again on August 26, 2010, and expired on August 25, 2011. During that time interval, Petitioner filed a petition here, which was pending between August 17, 2011, and February 13, 2012, when it was denied without prejudice for being a mixed petition containing a claim as to which state court remedies had not been exhausted.
The petition in the instant case was dismissed because of the long delay between the KCSC's denial of August 25, 2010, and Petitioner's first inquiry seeking a decision that was directed to the KCSC on June 26, 2011. Further, the Court concluded that Petitioner had delayed in the exhaustion of his state court remedies between October 2011, when he alleged that he had received notice that the KCSC had denied his petition, and April 28, 2012, when he filed a petition in the CSC. Largely on the basis of these delays, Petitioner was found not to have been sufficiently diligent to warrant equitable tolling. (Fdgs. & recs. to dimiss pet., doc. 28, 15-27.)
In the motion, Petitioner seeks this Court to reconsider the motion to dismiss, the Court's decision not to issue a certificate of appealability, and Petitioner's "last objection to findings and recommendations. . . ." (Mot., doc. 34, 1.) Petitioner asks for this Court to conduct a
In the motion for reconsideration, Petitioner alleges that he is under psychiatric treatment for mental illness. He alleges that he "has been on some type of [psychotropics] [his] entire incarceration." (Mot., doc. 34, 1.) Petitioner alleges the following in pertinent part:
(Doc. 34, 2.)
Petitioner further alleges:
(
Petitioner's last objections to the findings and recommendations were filed on July 15, 2013. (Doc. 29.) In pertinent part, Petitioner stated that he intended the first federal petition to be filed in the CCA, addressed it to the CCA, had no idea how it got here, but stated that it was erroneously sent to this Court. Petitioner did not control the mail, and he asserts generally that someone or something from the prison system or the CCA obstructed justice. Petitioner states that when his first federal petition was dismissed, Petitioner filed on May 3, 2013, in the same action, a notice asking this Court to stay the proceedings to permit him to exhaust his petition in the CSC; thus, his federal action was timely filed. (
Further, in the objections, Petitioner refers to the "small and limited amount of prison legal law library and its staff," and states that he "went through desperate measures to obtain the actual time the K.C.S.C. had to send a habeas corpus review decision." (
The records reflect that during the pertinent period, Petitioner suffered from a depressive disorder. (Doc. 45-2 at 74, doc. 45-7 at 13.) He was prescribed Remeron and Nortriptyline for depression. (Doc. 45-9, 53; doc. 45-11 at 28, 36.) He also took Dilantin for a seizure disorder as well as various medications for asthma and chronic pain, including some narcotic medications. (Doc. 45-11 at 28, 36, 44, 46; doc. 45-9 at 53, 55; doc. 45-8 at 8, 27, 46-47, 65, 73.)
The records show that Petitioner was usually housed in the general prison population or was administratively segregated, and he participated as an outpatient in the Correctional Clinical Case Management System (CCCMS), a level of care described in the pertinent program overview as including inmates who are functioning in the general population, administrative segregation, or the security housing unit; exhibit symptom control, or have a partial remission of symptoms resulting from treatment; and have a global assessment of functioning (GAF) of 50 or above.
In 2010 and 2011, assessments of Petitioner's depression resulted in recommendations that Petitioner remain in the CCCMS level of care. (Doc. 45-7 at 8-10, 13.) Petitioner reported a recent depressive episode and some anxiety or panic in February 2012, but he was assessed a GAF of 62 and kept at the CCCMS level of care. (Doc. 45-4 at 11; doc. 45-3 at 72.) With the exception of acute events described more fully below, Petitioner's recorded GAF scores ranged from 60 in January 2010 (doc. 45-6 at 4), 63 in March 2010 (doc. 45-9 at 49, doc. 45-7 at 14), 65 in February 2011 (doc. 45-9 at 46-48, 45-7 at 10), 62 in February 2012 (doc. 45-4 at 11), 62 in July 2012 (doc. 45-1 at 74), and 65 in September 2012 (doc. 45-1 at 54).
From late 2009 through late 2012, Petitioner generally denied that he suffered symptoms of depression or suicide or side-effects of medications; he was stable on medications, and he reported no distress or urgent or emergent health issues. (Doc. 45-9 at 48-50, 55; doc. 45-8 at 34; doc. 45-7 at 7; doc. 45-6 at 10; doc. 45-5 at 30, 51, 55, 70-71; doc. 45-4 at 11, 22; doc. 45-3 at 49; doc. 45-2 at 49, 54.) A mental health progress note dated April 26, 2011, stated that since the last assessment performed on February 2, 2010, Petitioner reported some (perhaps three) episodes of deep depression lasting one to two days each, but he had otherwise done well, had organized thoughts, and denied a pervasive, depressed mood. (Doc. 45-5 at 42.) In June 2012, Petitioner reported that he had a history of depressive symptoms beginning in 1996 or 1997; between 1996 and 2012, he had eight to ten instances of more severe symptoms and insomnia that lasted for several days to a week. (Doc. 45-2 at 63.)
In December 2009, Petitioner was placed on suicide watch after he had a fight with another inmate. (Ex. B doc. 10-45.) During Petitioner's appeal of a disciplinary violation for the fighting, Petitioner explained the incident by saying that when he was approached with a staff complaint, it resulted in Petitioner's having security concerns. When staff did not remove Petitioner promptly from the facility, Petitioner had himself admitted to the Correctional Treatment Center. (Doc. 10-45, 2.)
In January 2010, about a month after Petitioner's mother died, Petitioner was given psychotropic medications and was placed in a crisis bed in the treatment center after Petitioner reported suicidal ideation and self-destructive intentions. (Doc. 45-5, 74.) He was discharged from the crisis unit on February 4, 2010; his GAF on intake was 25 and on discharge was 60. (Doc. 45-10 at 57.) On March 15, 2010, a suicide risk assessment noted Petitioner reported that a placement on suicide watch on February 6, 2010, was because he was not being fed in administrative segregation, whereas inmates on suicide watch were fed really well. (Doc. 45-9, 50.)
Entries made from January 2010 through July 2012, a time during which Petitioner was generally diagnosed with a depressive disorder, reflected that Petitioner's thought content was within normal limits, and his thought process was goal-directed, linear, and logical. (Doc. 45-6 at 1, 2, 6, 10; doc. 45-5, 68; doc. 45-9, 48; doc. 45-10, 64; doc. 45-4, 4; doc. 45-2 at 1, 74.) His cognition, fund of information, intellectual functioning, concentration, attention, and memory were within normal limits in March 2010. (Doc. 45-7, 14.)
In August 2011, a physician's order included a note to reassign Petitioner to a job with no repetitive hand movements. (Doc. 45-4 at 74.) In February 2012, Petitioner was noted to have linear and goal-directed thoughts, and it was advised that a job for Petitioner be considered in order to elevate his mood. (Doc. 45-4 at 4.)
Petitioner asserts in the reply that the combination of all of his ailments, including his grand mal seizures which leave him exhausted, his hearing of voices, and the various drugs that he took at various times, including some narcotics for pain, caused him to be unable to file a timely petition. Petitioner now urges that the combination of his previously raised mental condition, along with his physical condition as revealed in the medical records and the side-effects of his medication, all prevented him from filing timely.
Petitioner submits additional and updated records to support his characterizations of his condition, including medication contracts that Petitioner contends reveal improper thinking and memory lapses, as well as medication records. A contract for the use of narcotics for pain in October 2010 listed possible side-effects as nausea, lethargy, constipation, dizziness, falling, and death. In the agreement, Petitioner promised to notify his health care providers (physicians, physicians' assistants, nurses, etc.) of any discomfort or side-effects experienced so that his medication might be adjusted. (Doc. 46 at 6, 15-16.) In February 2011, he was diagnosed with a depressive disorder, not otherwise specified, rule out psychotic disorder because of past and current complaints, with a GAF of 65 and an assessment of only a mild impairment, fair to poor insight, depressed mood and appetite, but otherwise within normal limits. (
Petitioner also submits records from the period before August 2010 and after July 2012: another form reflects that in February 2010, Petitioner was notified that his anti-depressant, Remeron, had possible side-effects of drowsiness, fainting, fatigue, weight gain, and increase in appetite. (
Petitioner's medical records show that he actively advocated for his own interests and needs while in prison. Petitioner repeatedly requested medications and modifications of medications and treatment that he received for various medical conditions he suffered, including seizures, asthma, and joint conditions. (See, e.g., doc. 45-11 at 56-57, 60-61 [complaint regarding pain medication in September 2010]; doc. 45-11 at 49-52 [request in December 2010 for medical mattress, cane, wrist and back braces, and orthopedic shoes, with wrist brace and cane approved]; doc. 45-11 at 28, 40-42 [request and reports in April through July 2011 of increased seizure activity after discontinuation of Gabapentin]; doc. 45-11 at 29-33 [request concerning discontinuance of pain medications in May 2011]; doc. 45-11 at 2-6 [complaint in July 2012 of failure to receive a timely examination by a physician and treatment for back and leg conditions that caused inability to walk and chronic pain].)
Petitioner also frequently employed the administrative appeal process in prison regarding non-medical aspects of his custody. (See, e.g., doc. 45-11 at 58-59 [request in May 2010 for priority status relating to library use]; doc. 45-11 at 20, 22-24 [need for Kosher diet in 2009 and 2011]; doc. 45-11 at 13-14 [request in July 2012 for transfer to another prison due to the presence of enemies on his yard and a resulting fight]; doc. 45-10 at 2-4 [appeal of disciplinary findings in 2009 and 2010 relating to a fight in December 2009]; doc. 45-9 at 59 and 45-5 at 9 [four-day hunger strike in January 2010 to obtain his missing property, hunger strike in August 2011].
A motion for reconsideration is treated as a motion to alter or amend judgment under Fed. R. Civ. P. 59(e) if it is filed within the time limit set by Rule 59(e).
Relief pursuant to Fed. R. Civ. P. 59(e) is appropriate when there are highly unusual circumstances, the district court is presented with newly discovered evidence, the district court committed clear error, or a change in controlling law intervenes.
Petitioner appears to argue that he is entitled to equitable tolling because of his mental illness and treatment for mental illness. The underlying evidence regarding Petitioner's mental illness and treatment consisted of matter within Petitioner's personal knowledge at the pertinent time, and thus it cannot be said to constitute newly discovered evidence. No change in controlling law has intervened, and Petitioner does not make a showing of any clear error on the part of the Court in its ruling on the motion to dismiss.
However, in an abundance of caution with regard to the limitations placed on pro se petitioners who are suffering from mental illness, the Court will consider Petitioner's claim concerning his mental illness to raise unusual circumstances.
The one-year limitation period of § 2244 is subject to equitable tolling where the petitioner shows that he or she has been diligent, and extraordinary circumstances have prevented the petitioner from filing a timely petition.
Equitable tolling is permissible when a petitioner can show a mental impairment so severe that the petitioner was unable personally to understand either the need to file timely or to prepare a habeas petition, and that impairment made it impossible under the totality of the circumstances to meet the filing deadline despite petitioner's diligence.
Here, the relevant time period for Petitioner's equitable tolling claim is from August 26, 2010, the date the statute began running, through July 20, 2012, the date Petitioner constructively filed the petition in the present case. The expanded record contains over 730 pages of Petitioner's medical records, which cover medical treatment for conditions that were both physical and mental in nature in the years 2010 through 2012 and beyond.
Petitioner alleged that he had a mental illness, received treatment in the CCCMS, and was continually on some form of psychotropic medication. However, these allegations do not establish a mental impairment that was sufficiently severe to render Petitioner unable either to understand rationally or factually the need to file timely, or to prepare a petition and effectuate its timely filing. The medical records do not reflect a person with a severe mental impairment. Petitioner's GAF scores reflect someone with some mild symptoms, such as depressed mood and mild insomnia, or some difficulty in social or occupational functioning, but who is generally functioning pretty well. Petitioner's housing placement and his participation in the CCCMS level of care are also consistent with someone with mild difficulties who nevertheless functions generally well.
Although Petitioner asserts that he suffered various side-effects from his medications, his own reports to his treatment providers during the period in question were generally to the contrary. Although the records did reflect some acute episodes of depression with temporary limitations of function, they were few and far between, with only three to six days during the period between the middle of 2010 and the middle of 2011, and an episode in early 2012 at which time he was still only mildly impaired and was kept at the CCCMS level of care. Petitioner has not correlated these short periods of more acute symptoms with any particular difficulty in preparing a petition or obtaining assistance in doing so.
Although Petitioner referred to suicide watch in the petition, the only instances of suicidal concerns were in 2009 and very early 2010, before the pertinent time period. Further, according to Petitioner's own characterizations of these events, they were the product of Petitioner's own fully conscious and calculated behavior designed either to avoid what he perceived as risks to his physical safety or to obtain preferable food. These reactions appear to be motivated as much by a keen sense of self-interest and a desire to manipulate circumstances as they are impelled by a severe mental impairment.
Petitioner asserts that his medical impairment and treatment have been serious factors in his untimely filings. However, the records contradict Petitioner's generalized assertion because they reflect normal thought content and process. They also demonstrate clearly that Petitioner was able to make numerous requests and complaints through the processes available in prison. Further, Petitioner was able to file a previous timely federal petition in
Considering the totality of the circumstances pertinent to Petitioner's ability to file a timely petition, Petitioner has not shown that he suffered from a mental impairment so severe as to cause his untimely filing. Petitioner's reference to limited law library access is general. The record contradicts Petitioner's general allegations of drowsiness, inability to think properly, and depressive bouts that frequently restricted Petitioner to his bed. Although it is conceivable that Petitioner's medications and ailments all combined to result in severe side-effects or limitations, the records of Petitioner's condition during the pertinent period fail to reflect either subjective complaints by Petitioner, or more objective evaluations and assessments by Petitioner's medical health care providers, that are consistent with a sufficiently severe mental impairment. Further, the record reflects a lengthy history of inconsistent functioning on Petitioner's part that included Petitioner's affirmative advocacy of his interests and positions, including numerous court filings, that contradict Petitioner's assertions as to the nature and extent of his impairment. In short, the record effectively forecloses Petitioner's assertions concerning his condition. Further, considering the entire record, Petitioner does not explain how his condition actually caused him not to be able to file a petition despite the exercise of diligence.
Accordingly, the Court concludes that after having reviewed an expanded record that included Petitioner's medical records during the pertinent period, Petitioner has not made a non-frivolous showing that he had a severe mental impairment during the filing period that would entitle him to an evidentiary hearing. The present case thus differs from
The records do not reflect that any mental impairment made it impossible for Petitioner to file a petition on his own in a timely manner, either by preventing him from personally understanding rationally or factually the need to file timely, or by rendering him unable, with or without help, to prepare and effectuate the timely filing of a petition.
Accordingly, the Court concludes that Petitioner has not shown that there are highly unusual circumstances that would warrant relief pursuant to Fed. R. Civ. P. 59(e).
Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the district court. The rule permits a district court to relieve a party from a final order or judgment on grounds including but not limited to 1) mistake, inadvertence, surprise, or excusable neglect; 2) newly discovered evidence; 3) fraud, misrepresentation, or misconduct by an opposing party; or 4) any other reason justifying relief from the operation of the judgment. Fed. R. Civ. P. 60(b). The motion for reconsideration must be made within a reasonable time, and in some instances, within one year after entry of the order. Fed. R. Civ. P. 60(c).
Rule 60(b) generally applies to habeas corpus proceedings.
Local Rule 230(j) provides that whenever any motion has been granted or denied in whole or in part, and a subsequent motion for reconsideration is made upon the same or any alleged different set of facts, counsel shall present to the Judge or Magistrate Judge to whom such subsequent motion is made an affidavit or brief, as appropriate, setting forth the material facts and circumstances surrounding each motion for which reconsideration is sought, including information concerning the previous judge and decision, what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, what other grounds exist for the motion, and why the facts or circumstances were not shown at the time of the prior motion.
Here, Petitioner has not shown any law or facts that reflect that the Court's decision on the motion to dismiss constituted an abuse of discretion, clear error, or a manifest injustice. He has not shown any other reason justifying relief from the operation of the judgment.
Accordingly, it will be recommended that Petitioner's motion for reconsideration be denied.
Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the Court of Appeals from the final order in a habeas proceeding in which the detention complained of arises out of process issued by a state court. 28 U.S.C. § 2253(c)(1)(A);
A certificate of appealability may issue only if the applicant makes a substantial showing of the denial of a constitutional right. § 2253(c)(2). Under this standard, a petitioner must show that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.
In determining this issue, a court conducts an overview of the claims in the habeas petition, generally assesses their merits, and determines whether the resolution was debatable among jurists of reason or wrong.
Here, it is possible that reasonable jurists could debate whether the petition should have been resolved in a different manner.
Accordingly, it will be recommended that Court issue a certificate of appealability.
Accordingly, it is RECOMMENDED that:
1) Petitioner's request for an evidentiary hearing be DENIED; and
2) Petitioner's motion for reconsideration be DENIED; and
3) The Court ISSUE a certificate of appealablity.
These findings and recommendations are submitted to the United States District Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after being served with a copy, 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." Replies to the objections shall be served and filed within fourteen (14) days (plus three (3) days if served by mail) after service of the objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.
