Williams v. Schmidt

Filing 65

INITIAL REPORT AND RECOMMENDATION re 36 MOTION to Dismiss Petition for Writ of Habeas Corpus [Docket No. 1] Filed After the Statute of Limitations Expired recommending the motion be DENIED. Objections to R&R due by 9/16/2011; Reply to Objections to R&R due by 9/21/2011. Signed by Judge Deborah M. Smith on 9/13/2011.(ELH, CHAMBERS STAFF)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
3:10-CV-00025-TMB-DMS
DAVID WILLIAMS,
Petitioner,

INITIAL REPORT AND
RECOMMENDATION REGARDING
RESPONDENT’S MOTION TO DISMISS
PETITION FOR WRIT OF HABEAS
CORPUS FILED AFTER THE STATUTE
OF LIMITATIONS EXPIRED
[Doc. 36]

v.

JOE SCHMIDT,
Respondent.

I. BACKGROUND AND MOTION PRESENTED
In March of 1990, Petitioner Williams was convicted of first-degree murder for killing his
girlfriend, Deborah Goodlataw. He filed a direct appeal, but his appeal was denied and his
conviction upheld. See Williams v. State, 823 P.2d 1 (Alaska App. 1991). He then sought
review from the Alaska Supreme Court, but on January 31, 1992, the Alaska Supreme Court
denied his request. (Doc. 36-5). On June 27, 1996, Petitioner Williams filed an application for
post-conviction relief in state court. The trial court dismissed the petition, and Williams
appealed. The Alaska Court of Appeals affirmed that dismissal. Williams v. State, No. A-9603,
2008 WL 901195 (Alaska App. April 2, 2008) (unpublished). Again, Williams asked the Alaska
Supreme Court to review the decision, but his request was denied on January 29, 2009. (Doc. 369).
On February 8, 2010 this Court received a habeas corpus petition pursuant to 28 U.S.C. §
2254 from Petitioner Williams (Doc. 1). The petition is very basic because, as Williams
informed the Court in his petition, he recently had been moved from a prison in Arizona to a
prison in Colorado and had not been able to locate his legal paperwork. The petition puts forth
1

two claims for relief: 1) his trial counsel was ineffective; and 2) his statements to police were
involuntary because one of the interrogating officers pretended to be an Alcoholics Anonymous
member. He signed the petition on January 29, 2010.
He was appointed an attorney in this matter. (Doc. 6). The attorney, Ms. Averil Lerman
with the Federal Public Defender, was given until April 15, 2010 to file an amended petition.
Ms. Lerman filed a preliminary supplement to the original petition. (Doc. 10). In that
supplement, Ms. Lerman puts forth three more claims for relief: 1) insufficient evidence; 2)
actual innocence; and 3) his statements were involuntary because of his cognitive,
developmental, and organic brain disabilities, in addition to the fact that one of the officers
interrogating him was actually his Alcoholics Anonymous sponsor. She informed the Court that
she needed to conduct more research and that she would then file a formal amended petition.
She has since received extensions of time to file the amended petition.
In the meantime, Respondent filed this motion to dismiss, arguing that, under 28 U.S.C. §
2244(d), Williams missed the one-year filing deadline for any federal habeas corpus petition after
calculating the amount of time that was statutorily tolled because of a pending state postconviction relief application. Petitioner filed a response in opposition at Docket 55. In that
response, Petitioner does not dispute that he missed the filing deadline, but he asserts that the
deadline should be equitably tolled and he should be allowed to continue with his petition. He
argues that equitable tolling is appropriate because he suffers from mental disabilities that
prevented him from timely filing his petition and he was otherwise reasonably diligent in
attempting to file a petition given his disabilities, citing to Bills v. Clark, 628 F.3d 1092 (9th Cir.
2010). Williams submitted 16 exhibits in support of his argument that equitable tolling is
2

appropriate in this case.
In a separate filing at Docket 56, Williams asked for an evidentiary hearing. That motion
will be ruled on in a separate order. All other deadlines in this case have been stayed pending the
outcome of this motion. (Doc. 45).
Respondent filed a reply at Docket 63, arguing that Williams has not demonstrated that he
has a severe mental impairment or that he was otherwise diligent in pursuing his petition. It
argues that an evidentiary hearing is not needed because there is no basis to his claim for
equitable tolling.
II. APPLICABLE LAW
A. Statute of limitation for 28 U.S.C. § 2254 petitions
Effective April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty
Act (“AEDPA”). AEDPA placed a one-year statute of limitations for state prisoners filing
federal habeas corpus petitions. 28 U.S.C. § 2244(d)(1). The one-year limitation period applies
to all petitions for habeas corpus relief filed in federal court after the AEDPA’s effective date of
April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 327 (1997). Typically, for a case concluding
after the enactment of AEDPA, the limitation period begins on “the date on which the judgment
became final by the conclusion of direct review or the expiration of the time for seeking such
review.” 28 U.S.C. § 2244(d)(1)(A).
The conviction in this case, however, became final in 1992, before the enactment of
AEDPA. In such cases, the one-year limitations period began running on April 25, 1996, the day
after AEDPA’s effective date. Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001). That
means that for a petitioner whose conviction was final prior to April 24, 1996, the time for filing
3

a federal habeas petition would have expired on the one-year anniversary of AEDPA unless some
type of tolling factors into the calculation.
The statute specifically authorizes tolling of the deadline during any period of time when
a properly filed application for post-conviction relief is pending in state court. 28 U.S.C.
2244(d)(2). In this case, Williams filed a petition for post-conviction relief in state court on June
27, 1996.1 That petition was pending in the state court until January 29, 2009 when the Alaska
Supreme Court denied Williams’ request for review of the dismissal. Thus, the limitations clock
began running again on January 30, 2009. Thus, the time between June 27, 1996 and January 29,
2009 is excluded from the one-year statute of limitations. In other words, the time from April 25,
1996 to June 26, 1996 and everyday after January 30, 2009 count against his one-year deadline.
Based on its own calculations, 63 days of the one-year limitation period ran before
Williams tolled the deadline by filing his state post-conviction relief application (April 25, 1996
to June 26, 1996). Then the limitation began running again on January 30, 2009. On that date,
because 63 days had already passed on the one-year limitation deadline, Williams had 302 days
to file his petition with this Court (365 days - 63 days = 302 days). Therefore, this Court
concludes that the limitation period expired on November 27, 2009, 302 days after the Alaska
Supreme Court denied his request for a hearing and ended his post-conviction relief process in
state court.
Williams, however, did not file the petition until January 29, 2010.2 That is a little more

1

Respondent states that the petition was filed on June 26, 1996 but based on this Court’s
review of the petition found at Docket 36-6, the application was dated June 27, 1996.
2

The date Williams signed and delivered the petition to the prison system for filing
constitutes the filing date of the petition. See Houston v. Lack, 487 U.S. 266, 275-76 (1988).
4

than two months after his deadline expired. Indeed, Williams does not contest that he missed the
statutory deadline. He argues that he should be allowed to proceed because equitable tolling can
be applied to excuse the two-month delay.
B. Equitable tolling
The statute of limitations in § 2244(d)(1) is subject to equitable tolling in appropriate
circumstances. Holland v. Florida, 130 S.Ct. 2549, 2560 (2010) (noting that the AEDPA statute
of limitations defense is not jurisdictional and the statute does not set forth an inflexible rule
requiring dismissal whenever its clock has run). To qualify for equitable tolling, the petitioner
must show (1) that he has been pursing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing. Holland, 130 S.Ct at 2562-63; Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005). Equitable tolling is not warranted unless “external
forces, rather than a petitioner’s lack of diligence, account for the failure to file a timely claim.”
Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). However, the diligence required is
reasonable, not maximum, diligence. Holland, 130 S.Ct. at 2565.
The petitioner bears the burden of demonstrating that the standards for equitable tolling
have been met. Indeed, it is a very high standard, as equitable tolling is justified in few cases.
See Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (stating that the threshold to trigger
equitable tolling is very high). But, as the Court noted in Holland,
The flexibility inherent in equitable procedure enables courts to meet new situations
that demand equitable intervention. . . . [C]ourts of equity can and do draw upon
decisions made in other similar cases for guidance. Such courts exercise judgment
in light of prior precedent, but with awareness of the fact that specific circumstances,
often hard to predict in advance, could warrant special treatment in appropriate cases.
Id. at 2563 (internal quotations omitted). Thus, whether equitable tolling is warranted is highly
5

fact dependent and should be determined on a case-by-case basis. Spitsyn, 345 F.3d at 799; Lott
v. Mueller, 304 F.3d 918, 923 (9th Cir. 2002).
C. Mental impairment as a grounds for equitable tolling
Mental illness or disability can, in some circumstances, constitute an extraordinary
circumstance beyond a petitioner’s control that would be sufficient to provide a basis for
equitable tolling. The mental disability must, however, have made it impossible to comply with
the filing deadline given the particular circumstances present during the limitations period. The
courts do not have to apply the term “impossible” literally. Equitable tolling is still appropriate
in cases where it would have technically been possible for a prisoner to file a petition on time but
the prisoner would likely have been unable to do so. Bills v. Clark, 628 F.3d 1092, 1100 n.3 (9th
Cir. 2010). In Bills, the Ninth Circuit set forth a two-part test courts should use to determine
eligibility for equitable tolling based on mental impairment:
(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. . . .
(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.
Bills, 628 F.3d at 1099-100 (internal citations and quotations omitted). The Ninth Circuit went
on to explain further:
[T]he “extraordinary circumstance” of mental impairment can cause an untimely
habeas petition at different stages in the process of filing by preventing petitioner
from understanding the need to file, effectuating a filing on his own, or finding
and utilizing assistance to file. The “totality of the circumstances” inquiry in the
second prong considers whether the petitioner's impairment was a but-for cause of
6

any delay. Thus, a petitioner's mental impairment might justify equitable tolling if
it interferes with the ability to understand the need for assistance, the ability to
secure it, or the ability to cooperate with or monitor assistance the petitioner does
secure. The petitioner therefore always remains accountable for diligence in
pursuing his or her rights. . . . [T]he petitioner must diligently seek assistance and
exploit whatever assistance is reasonably available.
Id. at 1100-01.
Williams submitted sixteen exhibits in an effort to demonstrate that he has a severe
mental impairment that made him unable to understand the need to timely file and that made him
unable to personally prepare the petition, as well as to demonstrate that he was adequately
diligent in his efforts to file a petition given his mental impairments and the assistance available
to him.
III. EVIDENCE SUBMITTED
A. Williams’ Mental Impairment
Williams introduced the testimony of Dr. James P. Sullivan, a forensic
neuropsychologist, who examined Williams for a period of ten hours in 2002, as evidence to
support his request for equitable tolling. Dr. Sullivan’s findings were presented during a hearing
in Williams’ state post-conviction relief case and Williams included Dr. Sullivan’s testimony
with his filings in this motion. (Ex. 3)3.
Dr. Sullivan concluded that Williams suffered from “organic impairment or brain
damage.” (Ex. 3 at p. 33). He based his conclusion on the fact that Williams scored a .7 on the
Halstead-Reitan Neuropsychological battery index. (Ex. 3 at p. 33). That index measures
whether a person has brain damage. A person scoring a 0 on the index would not have any brain

3

Williams’ exhibits are filed at Docket 53.
7

damage. A person scoring .5 is considered impaired and a person scoring 1.0 is extremely
impaired. (Ex. 3 at pp. 32-33). Williams’ score of .7 was clear indication to Dr. Sullivan that
Williams suffers from some type of brain damage. He speculated that the brain damage could
have resulted from a variety of factors, including documented abuse as a child, chronic
alcoholism as an adult, and head injuries suffered in accidents and fights. (Ex. 3 at pp. 35-39).
Dr. Sullivan also concluded that Williams’ overall IQ was 78, which placed him in the
bottom seventh percentile. (Ex. 3 at pp. 28-29). Dr. Sullivan testified that his IQ placed him in
the “borderline” range of extreme impairment, as extreme impairment is found with an IQ of 70
or below. (Ex. 3 at pp. 28). He explained that experts no longer use the term mentally retarded
and instead use the term extremely impaired. (Ex. 3 at pp. 28). He broke down Williams’ IQ
score even further, explaining that an overall IQ score is made up of a verbal IQ score and a
performance IQ score. Whereas verbal IQ deals with verbal function, performance IQ deals with
spacial and visual function. (Ex. 3 at pp. 26-28). Williams’ verbal IQ score was 73, again in the
borderline range, very close to extreme impairment. (Ex. 3 at pp. 27). A score of 73 means that
Williams is in the bottom fourth percentile when it comes to verbal processing. His performance
IQ of 89, however, was in the low-average range. Dr. Sullivan also tested Williams for memory
function. Again, he found that Williams scored lower with verbal memory function than with
visual memory function.
Dr. Sullivan also testified that he accounted for people who malinger or try to fail the
tests. He used certain measures during his testing that are specifically designed to detect
deception. He concluded that Williams was not malingering or engaging in deception during the
tests. (Ex. 3 at pp. 35).
8

Dr. Sullivan’s exam of Williams was in 2002 but the period of time the Court must
consider in its analysis is the limitations period. In this case, much of the limitations period ran
after January 29, 2009. In order to demonstrate that the impairment existed not only in 2002 but
was permanent, Williams subjected himself to another round of clinical evaluations in April of
2011 with Dr. Paul Richards, a qualified clinical neuropsychologist. (Ex. 11).
Dr. Richards’ findings and report were filed in support of Williams’ opposition to this
motion to dismiss. (Ex. 12). His overall IQ score based on the based on the Wechsler Adult
Intelligence Scale- IV calculated from Dr. Richards’ tests was 82, which is slightly higher than
the score of 78 calculated from Dr. Sullivan’s test. (Ex. 12 at p. 5). That score of 82 placed him
in the bottom twelfth percentile. (Ex. 12 at p.5). Williams’ performance/perceptual reasoning IQ
scores were average, but his verbal IQ score was 70, placing him in the bottom second percentile.
(Ex. 12 at p. 5). Dr. Richards’ examination also concluded that his working memory IQ was 74,
which placed him in the bottom fourth percentile. (Ex. 12 at p. 5). Dr. Richards’ conclusion was
thus consistent with Dr. Sullivan’s conclusion in regards to Williams’ verbal IQ.
Dr. Richard presented further evidence about Williams’ verbal skills based on other
subtests performed. He found that Williams’ ability to solve word finding problems was in the
bottom 3rd percentile and his ability to define a range of words was in the bottom 5th percentile.
(Ex. 12 at p. 7).
Dr. Richards ran a variety of intelligence and performance tests and subtests on Williams
to further identify any mental impairments. He found that Williams’ learning abilities were
mildly impaired with verbal learning deficits noted. (Ex. 12 at 8). He found that Williams’
memory functions were impaired based on a variety of tests. His ability to answer questions
9

about certain learning materials was impaired (falling in the second percentile). (Ex. 12 at 9).
His immediate recall was severely impaired and his long term recall function was moderately
impaired. (Ex. 12 at p. 9). Dr. Richards also found that Williams was impaired in his ability to
implement strategy and problem solve. For example, Williams’ ability to solve problems that
required abstraction was in the bottom fifth percentile. (Ex. 12 at p.10). As Dr. Richards noted,
after having Williams perform some of the abstraction tests, Williams implemented poor
strategies and was incapable of completing the tasks with appropriate reasoning. (Ex. 12 at 10).
As with Dr. Sullivan, Dr. Richards concluded that Williams did not exaggerate the results
based on embedded effort and consistency measures that are a part of the various tests. Thus, he
concluded that the results are valid and reliable. (Ex. 12 at p. 5).
Based on all these tests and results, Dr. Richards concluded that Williams has significant
brain damage that affects his verbal functioning. (Ex. 12 at p. 12). He states that these findings
are consistent with Dr. Sullivan’s findings from 2002 that Williams suffered impairments of
processing verbal material, working memory, and overall neuropsychological functioning. (Ex.
12 at p. 12). Because his results were consistent with Dr. Sullivan’s results, he concluded that
Williams’ brain damage and resulting verbal functioning impairment is permanent and was
present in the time span when he need to complete his legal paperwork. (Ex. 12 at p. 12). He
stated Williams’ brain damage was likely a result of many factors, including multiple traumatic
brain injuries shown in his medial records, his chronic alcoholism, and severe childhood abuse.
(Ex. 12 at pp. 12-13).
He also concluded that Williams’ impairments are such that he likely would not be able
to file a habeas petition:
10

The effects of Mr. Williams’ brain damage that has resulted in multiple
neuropsychological deficits (particularly severely impaired verbal short term
memory) are such that he likely would have been unable to initiate, complete, and file
the petition for writ of habeas corpus within the required time period.
(Ex. 12 at p. 13). He bases this conclusion on planning and recall impairments and his verbal
functioning impairments:
Specifically, the past and present neuropsychological test results indicate that his
cognitive deficits are in areas mediating the ability to plan, organize and problem
solve as well as attend/concentrate and recall important information needed on the
petition. Moreover, I do not believe Mr. Williams has the verbal comprehension
(2nd percentile-impaired) or reading comprehension (7th grade level) to
independently understand many of the words or concepts in the 16-page “petition for
relief...” that I had occasion to review.
(Ex. 12 at p. 13). He emphasized that it is not any one deficit but the totality of deficits that he
believes combine to make it impossible for Williams to have “understood, correctly completed
and filed this petition.” (Ex. 12 at p.13).
A review of the Alaska Department of Corrections medical records for Williams also
indicates that Williams is considered borderline on the intelligence scale, with an IQ of 70. (Ex.
1-F at p. 1). A probation officer’s report from 1978 also states that Williams was very poor in
skills “that are most related to required information.” (Ex. 1-E at p. 5).
Indeed, counsel for Williams submitted Williams’ own affidavit in support of his
equitable tolling request, in which Williams asserted that although he wanted to file a petition, he
did not know how to go about doing so. (Ex. 5 at ¶ 3). He asserted that he does not understand
legal words and couldn’t file the petition himself. (Ex. 5 at ¶ 3). Williams’ counsel also
submitted the affidavit of Sean Wright, a fellow prisoner housed with Williams after Williams
moved to the Colorado facility in December of 2009. (Ex. 6). Wright stated that he thought

11

Williams did not understand what a habeas petition was and that it was “pretty clear” Williams
would have been unable to file a habeas petition himself. (Ex. 6 at ¶ ¶ 6, 9, 10). Wright was the
person who wrote and filed the petition for Williams, free of charge. (Ex. 6 at ¶8).
Other immates filed affidavits in support of Williams’ motion. These inmates asserted
that Williams is reclusive and stays inside his cell playing video games most of the time. They
asserted he does not interact with others very much. (Ex. 7 at ¶ 8, Ex 8 at ¶ ¶ 4, 5; Ex. 9 at ¶6).
One inmate, Edward Lowry, said that Williams is not good at talking to other people and has a
hard time putting things into words. (Ex. 9 at ¶6). That sentiment is confirmed by another
inmate, Arthur L. Thomas who said that Williams is not good at talking to people or asking
others for help. (Ex. 7 at ¶ 11). He also said that Williams gets “extremely discouraged by the
obstacles [in prison].” (Ex. 7 at ¶11 ). Wright also indicated that Williams does not get along
with other people and is not good at asking other people for help. He indicated that people try to
take advantage of Williams in prison. (Ex. 6 at ¶11).
B. Williams’ Diligence
As noted above, Williams’ counsel submitted a variety of affidavits in support of
Williams’ request for equitable tolling. These affidavits were submitted to demonstrate the
efforts he took to file a habeas petition, the obstacles in his way, the availability of assistance,
and the circumstances during the time period when his habeas deadline was approaching.
In his own affidavit, Williams explained that he asked other inmates about filing a habeas
corpus petition. They indicated that they would help him for a fee that was more than Williams
could afford to pay. Another inmate, Timothy St. Clair, confirmed in his affidavit that other
inmates help prepare habeas petitions but at a cost that is often prohibitive. St. Clair indicated
12

that he has not been able to use the assistance of other inmates because of the cost. (Ex. 8 at ¶ 6).
As noted above, other inmates also indicated that Williams is a very reclusive person. They
asserted he does not interact with others very much. (Ex. 7 at ¶ 8, Ex 8 at ¶ ¶ 4, 5; Ex. 9 at ¶6).
The inmates’ affidavits also described the circumstances taking place in the prison
between November 2009 and January 2010 —the time period in which the deadline was
approaching and in which Williams filed his petition. At the end of 2009 prisoners at an Arizona
correctional facility were moved to a new correctional facility in Colorado. Some prisoners were
moved at the end of November, 2009. (Ex. 7 at ¶2). Williams was moved on December 6,
2009. (Ex. 5 at ¶4).
There were disruptions prior to the move. Williams indicated that his legal files and
personal property were boxed up about a week before his move, which would have been about
the time the petition was due. (Ex. 5 at ¶6). Access to the law library was also restricted prior to
the move. Lowry, an inmate with Williams who worked in the law library, indicated that there
was disorganization for a month preceding the move to the Colorado facility. (Ex. 9 at ¶4).
Inmate Thomas also noted there were problems before the move to Colorado began: “Before the
move, there was a lot of disruption. Prisoners had to pack all their property for some time prior
to the move. Prisoners were locked down for some time prior to the move, and could not engage
in [their] usual activities. There was no access to the law library during this time.” (Ex. 7 at ¶ 5).
Williams and another inmate, Raymond Schuenemann, also noted that inmates could not use the
law library in the Arizona facility prior to the move. (Ex. 10 at ¶3; Ex. 5 at ¶ 8).
There were also disruptions after the move. Many of the inmates who submitted an
affidavit indicated that it took several weeks to a couple months after they were moved to
13

Colorado to retrieve their property and legal files. (Ex 6 at ¶ 4; Ex. 7 at ¶ 3; Ex. 10 at ¶ 5).
Lowry recalled that “some inmates did not get their property . . . for months after we got to
Hudson. To get it, you had to be on top of the issue on almost a daily basis, going down and
being assertive about getting it.” (Ex. 9 at ¶ 5). The law library in the Colorado facility was not
functional at the time the inmates arrived. (Ex. 7 at ¶ 4; Ex. 5 at ¶ 7). According to Wright, the
library was not accessible until late January of 2010. (Ex. 7 at ¶ 4). When the library did finally
open, it did not have legal forms or books. (Ex. 6 at ¶ 5; Ex 5 at ¶ 9).
Williams indicated in his affidavit that when he moved to the Colorado facility, he talked
to Wright. Wright had not been at the Arizona facility with Williams. (Ex. 6 at ¶ 2). The two
talked about their cases. Wright said he realized that Williams would not be able to file a habeas
petition by himself. (Ex. 6 at ¶ 6). Wright offered to help Williams at no cost. (Ex. 6 at ¶ 8).
Williams accepted the offer and filed what Wright wrote. (Ex. 6 at ¶ 9).
In his pro se application filed at Docket 1, Williams, through Wright, indicated that he
filed the petition without the benefit of his legal paperwork. He explained that he has been unable
to locate his paperwork since arriving in Colorado on December 6, 2009.
IV. ANALYSIS
A. Was Williams’ mental impairment an “extraordinary circumstance?”
This Court has closely reviewed the exhibits presented by Williams in his opposition to
Respondent’s motion to dismiss and his request for equitable tolling. It is clear that Williams has
shown he has a mental impairment. Based on the first prong of the test set forth in Bills, this
court must consider whether Williams’ impairment is severe enough to constitute an
extraordinary circumstances warranting the application of the Court’s equitable powers. To be a
14

severe impairment, Williams has to show that he was unable to personally understand the need to
timely file the habeas petition or that his mental state rendered him unable to personally prepare a
habeas petition and effectuate its filing.
After due consideration, this Court finds that Williams has demonstrated that his
impairment was severe. The records submitted, including the testimony of Dr. Sullivan and the
report by Dr. Richards, confirm that Williams has brain damage that is permanent. The brain
damage existed during the time the statute of limitations was running in this case. Without
repeating all of the findings of the psychologists detailed above, the brain damage affects his
verbal functioning, his verbal short-term and long-term memory, and overall cognitive
functioning. His overall intelligence is low, ranging from the bottom fourth percentile (Dr.
Sullivan’s findings) to the bottom twelfth percentile (Dr. Richard’s findings). But drilling down
into the data further, it is clear that his verbal intelligence is even lower, suggesting that his
higher overall IQ scores are attributable to his spacial and visual skills, which are not impaired,
but are not clearly related to his ability to complete and file a habeas petition. Indeed, he is in the
bottom second percentile of adults his age in verbal comprehension and in the lower fourth
percentile in working memory. He is impaired in his ability to remember and define verbal
information. (Ex. 12 at p. 7). Also, based on Dr. Richards’ findings, Williams’ brain damage
also affects his ability to plan, organize, and problem solve. His ability to solve problems that
involve any level of abstraction, such as identifying a common feature of two words, was only in
the 5th percentile. (Ex. 12 at p. 9). Those clinical findings are confirmed informally by other
inmates who assert that Williams gets discouraged by obstacles, has a hard time putting things
into words, and is not assertive.
15

Such verbal and recall impairments would have made Williams unable to personally
prepare his habeas petition and effectuate its filing. Williams’ affidavit asserts he did not know
how to go about filing and was unable to do it himself. Wright, the person eventually responsible
for getting Williams’ petition to the Court, stated that it was obvious from his conversation with
Williams that he would not have been able to file a habeas petition on his own.
Therefore, this Court concludes that Williams has demonstrated that his mental
impairments are severe based on Bills because (1) he was unable to understand the need to timely
file the petition and (2) because he was unable to personally prepare a habeas petition and
effectuate its filing. Under Bills, only one of these two situations must be demonstrated to show
a severe impairment. Williams showed both. Respondent asserts that Williams failed to assert
himself that he did not understand the need to timely file the petition. But based on the record, it
is clear that Williams’ recall and verbal deficits would make Williams unable to remember and
understand what had to be done to continue his case and when. Furthermore, as stated above,
even if he were to have understood that he was under a deadline, this Court also finds he was
unable to personally prepare and effectuate the filing of a habeas petition, which alone would be
enough to satisfy the first part of the Bills test.
B. Did Williams demonstrate sufficient diligence given his impairment and circumstances?
Based on the Ninth Circuit precedent in Bills, having a severe impairment itself does not
warrant equitable tolling. The petitioner must also show diligence in pursuing the petition to the
extent he could understand 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. The Court must consider whether Williams’ impairments prevented him from
16

locating assistance or communicating with or sufficiently supervising any assistance found.
After consideration of the record in total, this Court concludes that Williams has also met
the diligence prong of the Bills test. As the Supreme Court noted in Holland, the diligence
requirement is not maximum diligence but rather reasonable diligence. In this situation, we must
examine whether, given Williams’ impairments, he was sufficiently diligent.
Williams’ affidavit provides evidence of his attempt to get assistance. He notes that he
tried to get inmates to help him while he was housed in the Arizona facility. There were inmates
available to help, but at a cost. Williams asserts that the costs were prohibitive. An affidavit
from another inmate, Timothy St. Clair, confirms that it is expensive to get other inmates to help
file a petition and that the cost has prevented him from using other inmates’ assistance. (Ex. 8 at
¶ 6).
This Court concludes that Williams was unable to do much more, given his mental
impairments. His impairments hindered his ability to seek help from others and oversee that
help. Dr. Richards’ report supports a finding that Williams has a difficult time implementing a
strategy or plan. This would make it difficult for him to seek help to meet a deadline even if he
were to understand the deadline in the first place and difficult for him to repeatedly ask for help
and follow up with leads on assistance. Indeed, the informal statements of other inmates
supports a finding that Williams had a difficult time asking others for help, putting thoughts into
words, and navigating the obstacles in prison. He was not assertive and other inmates try to take
advantage of him, which likely causes Williams to withdraw more. Furthermore, his mental
impairments related to verbal functioning, recall, and problem solving likely exacerbate
Williams’ reclusiveness and his difficulties in asking for help.
17

This Court also notes that while Williams may not have used the law library, the evidence
makes it clear that Williams would not have been able to conduct research and understand forms
in order to file a petition. Indeed, Williams did not proceed pro se in any of his state court
proceedings and there is nothing to suggest that Williams can handle filing paperwork or
navigating the legal system himself. Furthermore, the Arizona library was closed to inmates
prior to the relocation of inmates to Colorado, which began in November. Therefore, the library
would not have been accessible to Williams around the time his petition was due.
Furthermore, the record shows that after Williams was moved, he was unable to access
his legal paperwork. He was also unable to access a law library until late January. Respondent
argues that the circumstances present in the prison system after the filing deadline of
November 27, 2009 are not relevant. It is true that anything that happened after the filing
deadline did not present an obstacle for Williams in terms of meeting a deadline. However, these
circumstances show that when Williams was able to find free assistance through Wright, he
quickly took advantage of that help even though there were still some serious obstacles related
filing legal paperwork because of the recent move. It helps show that Williams was diligent with
the appropriate help. Wright was not housed in the Arizona facility, so Williams was not able to
meet with him prior to moving to Colorado.
Given the totality of the circumstances and Williams’ mental deficiencies, this Court
concludes that Williams was reasonably diligent in filing his petition. Equity is not offended by
allowing the Williams’ petition to move forward.

18

V. CONCLUSION
Based on the foregoing, this Court respectfully recommends that Respondent Schmidt’s
Motion to Dimiss Petition for Writ of Habeas Corpus Filed After the Statue of Limitations
Expired be DENIED and that Petitioner Williams be able to proceed with the filing of an
amended petition.
DATED this 13th day of September, 2011, at Anchorage, Alaska.
/s/ Deborah M. Smith
DEBORAH M. SMITH
United States Magistrate Judge

Pursuant to D.Ak.L.M.R. 6(a), a party seeking to object to this proposed finding and
recommendation shall file written objections with the Clerk of Court no later than CLOSE OF
BUSINESS, September 16, 2011. Failure to object to a magistrate judge’s findings of fact may
be treated as a procedural default and waiver of the right to contest those findings on appeal.
McCall v. Andrus, 628 F.2d 1185, 1187-89 (9th Cir. 1980), cert. denied, 450 U.S. 996 (1981).
The Ninth Circuit concludes that a district court is not required to consider evidence introduced
for the first time in a party’s objection to a magistrate judge’s recommendation. United States v.
Howell, 231 F.3d 615 (9th Cir. 2000). Objections and responses shall not exceed five (5) pages
in length, and shall not merely reargue positions presented in motion papers. Rather, objections
and responses shall specifically designate the findings or recommendations objected to, the basis
of the objection, and the points and authorities in support. Response(s) to the objections shall be
filed on or before CLOSE OF BUSINESS, September 21, 2011. The parties shall otherwise
comply with provisions of D.Ak.L.M.R. 6(a). D.AK.L.M.R. 6(a) authorizes the court to alter
the standard objection deadlines.
Reports and recommendations are not appealable orders. Any notice of appeal pursuant
to Fed.R.App.P. 4(a)(1) should not be filed until entry of the district court’s judgment. See
Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).

19