Steven Forbess v. Don Mill

Filing

FILED OPINION (ALFRED T. GOODWIN, STEPHEN S. TROTT and WILLIAM A. FLETCHER) REVERSED AND REMANDED, Judge: SST Authoring, FILED AND ENTERED JUDGMENT. [9063096]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STEVEN CHARLES FORBESS,
Petitioner-Appellant,
v.
STEVE FRANKE, Superintendent,
Two Rivers Correctional Institution,
Respondent-Appellee.

No. 12-35843
D.C. No.
3:08-cv-01261AC

OPINION

Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, Senior District Judge, Presiding
Argued and Submitted
March 4, 2014—Portland, Oregon
Filed April 18, 2014
Before: Alfred T. Goodwin, Stephen S. Trott, and
William A. Fletcher, Circuit Judges.
Opinion by Judge Trott

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FORBESS V. FRANKE
SUMMARY*

Habeas Corpus
The panel reversed the district court’s denial of an
untimely 28 U.S.C. § 2254 habeas corpus petition and
remanded for further proceedings, concluding that petitioner
suffered from delusions so severe that he was unable to
understand the need to timely file his petition, and that the
unique nature of those delusions made it impossible to do so.

COUNSEL
Todd H. Grover (argued), Ward Grover, LLP, Bend, Oregon,
for Petitioner-Appellant.
Carolyn Alexander (argued), Senior Assistant Attorney
General; Ellen F. Rosenblum, Attorney General; Anna M.
Joyce, Solicitor General, Salem, Oregon, for RespondentAppellee.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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OPINION
TROTT, Circuit Judge:
Today we decide whether the mental illness suffered by
petitioner Steven Charles Forbess entitles him to equitable
tolling of the statute of limitation for a writ of habeas corpus.
We conclude that it does. During the relevant period, Forbess
suffered from delusions so severe that he was unable to
understand the need to timely file his petition, and the unique
nature of those delusions made it impossible for him to timely
file. We reverse and remand so that the district court may
consider the merits of Forbess’s petition.
I
In 1999, an Oregon state court jury convicted Forbess of
the attempted murder, assault, kidnaping, and coercion of his
former wife, Joanne. Forbess’s direct appeal of that
conviction ended when the Oregon Court of Appeals issued
its final judgment on November 28, 2001. That judgment
triggered the running of the one-year statute of limitation on
Forbess’s federal habeas petition, though Forbess did not
learn of the final judgment until April 2002.
On July 14, 2003, Forbess filed a state habeas petition
challenging his conviction, which the state court rejected as
improperly filed. It was not until Forbess met with an inmate
legal assistant sometime before July 14, 2003, to help him
with that state habeas petition that Forbess learned of the oneyear limitation period for his federal habeas petition. Forbess
also concedes on appeal that he is not entitled to equitable
tolling after July 14, 2003, because he rationally understood
the need to file after that date.

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Forbess filed a petition for state post-conviction relief on
October 30, 2003, which tolled the federal habeas statute of
limitation until Forbess filed his 28 U.S.C. § 2254 federal
habeas petition on October 22, 2008. Excluding the time that
was statutorily tolled by Forbess’s state post-conviction
challenge, Forbess filed his federal habeas petition just over
twenty-three months after the one-year statute of limitation
had begun to run. The district court thus ordered Forbess to
show cause why the court should not summarily reject his
federal habeas petition as untimely.
In response, Forbess asked the district court to equitably
toll the limitation period because of his mental illness.
Forbess claimed that, during the relevant period, he believed
he was working with the FBI to help apprehend Joanne and
her family, who he believed were part of a drug cartel.
Because Forbess had witnessed Joanne’s family receive a
large shipment of drugs, the cartel supposedly wanted him
dead. Forbess thought that the FBI had staged his conviction
in an effort to bait Joanne out of hiding. He believed that the
FBI asked him to stay in prison until Joanne and her family
were arrested, at which time the FBI would secure his release.
Forbess therefore believed he had no need to file a federal
habeas petition.
The district court denied Forbess’s request for equitable
tolling. Forbess v. Mills, No. 3:08–cv–01261–AC, 2012 WL
4324912 (D. Or. Aug. 17, 2012), findings and
recommendation adopted, 2012 WL 4328359 (D. Or. Sept.
17, 2012). Although the district court found that Forbess’s
mental illness kept him from understanding the need to timely
file his federal habeas petition, it also found that Forbess did
not prove that his mental illness was the but-for cause of his

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delay. The district court rejected the petition as untimely, and
Forbess appealed.
II
The dismissal of a petition for writ of habeas
corpus as time-barred is reviewed de novo. If
the facts underlying a claim for equitable
tolling are undisputed, the question of whether
the statute of limitations should be equitably
tolled is also reviewed de novo. Otherwise,
findings of fact made by the district court are
to be reviewed for clear error.
Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003).
III
The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) gives a state inmate one year from the
conclusion of his direct appeal to file a petition for federal
habeas corpus. 28 U.S.C. § 2244(d)(1)(A). AEDPA tolls the
statute of limitation while a “properly filed application” for
state post-conviction relief is pending.
28 U.S.C.
§ 2244(d)(2). Further, courts may equitably toll the statute of
limitation if “extraordinary circumstances” prevented an
otherwise diligent petitioner from filing on time. Holland v.
Florida, 560 U.S. 631, 649 (2010).
In Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010), we
articulated a two-part test to determine whether a mental
impairment amounts to an “extraordinary circumstance”
warranting equitable tolling. The impairment must have (1)
been “so severe that the petitioner was unable personally . . .

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to understand the need to timely file . . . a habeas petition,”
and (2) “made it impossible under the totality of the
circumstances to meet the filing deadline despite petitioner’s
diligence.” Id. at 1093. This is not “a mechanical rule”;
rather, equitable tolling determinations require “a flexibl[e],
case-by-case approach.” Id. at 1096 (quoting Holland, 560
U.S. at 650) (internal quotation marks omitted).
A. The Relevant Period
We must determine whether Forbess is entitled to
equitable tolling between November 29, 2001, and July 14,
2003. See 28 U.S.C. § 2244(d)(1)(A); Patterson v. Stewart,
251 F.3d 1243, 1246 (9th Cir. 2001). Because that period
lasted approximately nineteen and a half months, and Forbess
concedes that the statute of limitation ran for approximately
three and a half months between July 14, 2003, and October
29, 2003, Forbess’s petition is timely only if he proves he is
entitled to equitable tolling for just over eleven months during
any part of the relevant period.
B. Prong One: Severity
To satisfy the first Bills prong, Forbess needed to show
that his mental illness was “so severe that [he was] unable . . .
to understand the need to timely file.” Bills, 628 F.3d at
1093. The magistrate judge made the following findings of
fact to determine that Forbess met his burden of proof on this
prong:
Petitioner believed he was working
undercover for the FBI, and his trial was a
“sham” orchestrated to lure his ex-wife out of
hiding and arrest her for being part of an

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extensive drug distribution operation.
Petitioner’s claim that his delusions persisted
from the time of his trial to the expiration of
the limitations period is supported by the
psychological evaluations of Dr. Fickle, Dr.
McDonald, and Dr. Melnick, and by the
mental health records. During the relevant
time period, Petitioner genuinely believed the
FBI would release him once they arrested his
ex-wife. As such, he was incapable of
rationally understanding the necessity of filing
a timely habeas petition.
Forbess, 2012 WL 4324912, at *5 (emphasis added).
The magistrate judge explicitly found that Forbess’s
delusions persisted throughout the relevant period, and that
conclusion is well supported by the record. Indeed, various
doctors throughout the relevant period opined that Forbess
suffered from severe delusions and documented Forbess’s
belief that he was working for the FBI.
The Superintendent’s argument that Forbess was free of
delusions from May 2002 through the remainder of the
relevant period is not convincing. Although the mental health
records show some variance in Forbess’s condition, his
reluctance to discuss his delusions with his doctors explains
the gaps or variations in the mental health records. See
Forbess, 2012 WL 4324912, at *3 (Dr. Melnick noted that
Forbess “often refuses to tell psychiatrists about his
delusions, but that in interviews with non-psychiatrists, he has
admitted his belief that he is in the witness protection
program and that the FBI would arrange for his release”).
And Forbess’s extensive history of severe mental illness, also

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well documented in the record, bolsters the district court’s
finding.
We therefore accept as controlling the district court’s
finding that Forbess’s delusions were so severe that he could
not rationally understand the need to timely file his federal
habeas petition, and that those delusions persisted throughout
the relevant period.
C. Prong Two: “Impossibility”
Under the second equitable tolling prong, Forbess needed
to prove that his mental illness “made it impossible under the
totality of the circumstances to meet the filing deadline
despite [his] diligence.” Bills, 628 F.3d at 1093. Bills,
however, does not require a literal impossibility. Id. at 1100
(stating that the second prong requires a showing that the
mental impairment was “a but-for cause of any delay”); see
also Sossa v. Diaz, 729 F.3d 1225, 1236 (9th Cir. 2013)
(explaining that Bills’s “impossibility requirement should not
be strictly imposed because imposing extraordinarily high
evidentiary standards on pro se prisoner litigants . . . runs
against the grain of [Ninth Circuit] precedent”) (internal
quotation marks omitted); Ford v. Gonzalez, 683 F.3d 1230,
1237 (9th Cir. 2012) (quoting Bills, 628 F.3d at 1097, for the
general rule that “equitable tolling is available when the
prisoner can show extraordinary circumstances were the
cause of an untimely filing”); Stancle v. Clay, 692 F.3d 948,
959 (9th Cir. 2012), cert. denied, 133 S. Ct. 1465 (2013)
(interpreting Bills to ask whether “the mental impairment
cause[d] an untimely filing”); Roberts v. Marshall, 627 F.3d
768, 771 n.5, 772 (9th Cir. 2010) (explaining that if “‘a
habeas petitioner’s mental incompetence in fact caused him
to fail to meet the AEDPA filing deadline, his delay was

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caused by an extraordinary circumstance’”) (quoting Laws v.
Lamarque, 351 F.3d 919, 923 (9th Cir. 2003)).
The district court found that Forbess’s mental illness was
not the but-for cause of his delay and denied Forbess’s
petition as untimely. The court reasoned that it was “equally
probable or more probable that [Forbess’s] late filing was
caused by (1) failing to receive timely notice of the
termination of his direct appeal; (2) not being advised by his
appellate counsel of the one-year federal limitation period;
and (3) then not understanding the state habeas/[postconviction relief] system,” and thus Forbess had not met his
burden of proof. Forbess, 2012 WL 4324912, at *6.
We respectfully disagree. With all respect, the district
court applied an overly-rigid interpretation of the but-for test
set out in Bills, and did not consider the totality of the
circumstances before it—especially the peculiar nature of
Forbess’s mental illness. If, as the district court found,
Forbess could not rationally understand the need to pursue
federal post-conviction relief, and if his reluctance to do so
was due to his delusional belief that the FBI wanted him to
lay low as bait for the cartel, then before the delusion lifted
nothing anyone might have said to him about the need to
timely file would have altered his behavior. See Forbess,
2012 WL 4324912, at *5. It follows that Forbess’s confusion
about the status of his case and the intricacies of his rights
after his direct appeal ended cannot be dispositive. Even if
Forbess had understood his legal rights completely, he would
not have filed.
In short, Forbess’s unique mental illness made it
impossible for Forbess to timely file his federal habeas
petition, see Bills, 628 F.3d at 1093, and in fact caused him to

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fail to meet the filing deadline, see Roberts, 627 F.3d at 772.
The district court erred by concluding otherwise.
IV
Given the unique nature of Forbess’s mental illness and
the flexible, totality-of-the-circumstances approach that Bills
requires, we conclude that Forbess has satisfied both Bills
prongs. Accordingly, Forbess is entitled to equitable tolling
of AEDPA’s one-year statute of limitation and his petition for
a writ of habeas corpus is timely. We reverse the judgment
of the district court and remand for further proceedings.
REVERSED and REMANDED.

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