Coleman v. Ryan et al

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATION. Magistrate Judge James F Metcalf's Report & Recommendation 19 is accepted; Petitioner Lon Roger Coleman's Petition for Writ of Habeas Corpus 1 is denied; a Certificate of Appealability is denied because Petitioner has not made a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2); the Clerk shall terminate this action. Signed by Judge David G Campbell on 4/1/13. (REW)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Lon Roger Coleman,
Petitioner,

10
11

ORDER

v.

12

No. CV-12-1553 PHX DGC

Charles L. Ryan, et al.,
Respondents.

13
14
15

On November 28, 2007, in Maricopa Superior Court, Petitioner pled guilty to the

16

crimes of theft and forgery. He was sentenced on December 21, 2007. Doc. 19 at 2.

17

After various state court proceedings, Petitioner filed a Petition for a Writ of Habeas

18

Corpus on July 19, 2012. Doc. 1. This Court referred the case to Magistrate Judge James

19

F. Metcalf, who issued his Report & Recommendation (“R&R”) on February 20, 2013.

20

Doc. 19. Judge Metcalf recommended that the Petition for Writ of Habeas Corpus be

21

denied with prejudice because it was untimely under the Antiterrorism and Effective

22

Death Penalty Act (“AEDPA”) and was procedurally barred. Doc. 19 at 20, 21. Pursuant

23

to Rule 72(b)(2), Petitioner has filed written objections to the R&R. Doc. 20. Having

24

reviewed Petitioner’s objections, the Court will accept Judge Metcalf’s R&R.

25

I.

26

Legal Standard.
A party may file specific, written objections to an R&R within fourteen days after

27

being served with a copy of the R&R.

See Fed. R. Civ. P. 72(b)(2); 28 U.S.C.

28

' 636(b)(1). The Court must undertake a de novo review of those portions of the R&R to

1

which specific objections are made. See 28 U.S.C. ' 636(b)(1); Thomas v. Arn, 474 U.S.

2

140, 149 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). The

3

Court may accept, reject, or modify, in whole or in part, the findings or recommendations

4

made by the magistrate judge. See 28 U.S.C. ' 636(b)(1).

5

II.

Analysis.

6

Petitioner does not specifically object to the Magistrate’s timeline showing that

7

Petitioner’s claims are untimely under the AEDPA’s one-year statute of limitations, or to

8

the Magistrate’s finding that his claims are procedurally barred. Rather, Petitioner makes

9

objections relating to his lack of legal resources and his mental illness. Doc. 20 passim.

10

Although not explicitly stated, Petitioner essentially objects to the Magistrate’s finding

11

that equitable tolling does not apply in his case.1

12

objections neatly summarizes his points:

13
14
15
16

A paragraph from Petitioner’s

[Petitioner,] having been denied the assistance of knowledgeable
representation, must rely on unreliable paralegals for consultation, is
provided a resource library containing fewer reference materials than what
a pre-law student routinely possesses and continually is confronted by
personnel ignorant of and complacent to the special needs necessitated by
his psychological issues.

17
18

Doc. 20 at 3. Petitioner emphasizes that he was ignorant of the statute of limitations, and

19

that the “mental illness and the cruel/unusual institutional response to it have prolonged

20

the ignorance and that is the real reason for his delay.” Id. at 5.

21

Equitable tolling of the AEDPA “is available in our circuit, but only when

22

‘extraordinary circumstances beyond a prisoner’s control make it impossible to file a

23

petition on time’ and ‘the extraordinary circumstances were the cause of his

24

untimeliness.’” Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003) (quoting Spitsyn v.

25
1

26
27
28

Arguably, Petitioner’s objections also relate to whether he has shown sufficient
“cause and prejudice” to overcome the procedural bar on his habeas petition. See
Doc. 19 at 17. However, because this Court adopts the R&R’s finding that Petitioner’s
habeas petition is untimely and that equitable tolling should not apply, the Court need not
address whether Petitioner has shown sufficient cause and prejudice to lift the procedural
bar.
-2-

1

Moore, 345 F.3d 796, 799 (9th Cir. 2003)). To qualify for equitable tolling, Petitioner

2

must also show that he diligently pursued his rights. Ramirez v. Yates, 571 F.3d 993, 997

3

(9th Cir. 2009). This Court will review de novo Petitioner’s arguments that his lack of

4

legal resources and his mental illness should trigger equitable tolling of the statute of

5

limitations.

6

A.

Legal Knowledge & Resources.

7

Petitioner emphasizes that he was ignorant of the procedural requirements for

8

petitions for a writ of habeas corpus. See, e.g., Doc. 20 at 3–4. Petitioner also points out

9

the repeated delays in state court proceedings, which further obscured the deadline for his

10

habeas petition. Id. at 6, 7. However, ignorance of the statute of limitations and a lack of

11

legal sophistication are not an “extraordinary circumstance warranting equitable tolling.”

12

Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006).

13

affirmative misstatement of law by a court, delays in court proceedings do not rise to the

14

level of an extraordinary circumstance. See, e.g., Ford v. Pliler, 590 F.3d 782, 788–89

15

(9th Cir. 2009) (citing Plier v. Ford, 542 U.S. 225 (2004)) (finding that equitable tolling

16

does not apply when courts do not warn pro se litigants about deadlines, unless court

17

affirmatively misleads parties).

Moreover, absent an

18

Petitioner also argues that the legal resources available to him, including the

19

prison law library and paralegal assistance, were inadequate. See Doc. 20 at 3. This

20

circuit has found that a lack of access to legal resources may be an extraordinary

21

circumstance warranting equitable tolling. See, e.g., Whalem/Hunt v. Early, 233 F.3d

22

1146, 1148 (9th Cir. 2000) (en banc) (finding that unavailability of a copy of the AEDPA

23

in a prison law library could be grounds for equitable tolling). However, in cases where

24

courts have found that an extraordinary circumstance might exist, the petitioner always

25

pointed to specific materials to which he did not have access. See, e.g., Roy v. Lampert,

26

465 F.3d 964, 974 (9th Cir. 2006) (finding that lack of access to AEDPA materials and

27

Oregon law books may be an extraordinary circumstance); Mendoza v. Carey, 449 F.3d

28

1065 (9th Cir. 2006) (finding that lack of access to Spanish language legal materials or
-3-

1

assistance could entitle habeas petitioner to equitable tolling). In this case, Petitioner has

2

failed to point to specific materials that he was lacking. Rather, his complaints about his

3

legal resources are highly generalized, and he does not show how his lack of legal

4

resources prevented him from filing a habeas petition while the statute of limitations was

5

running.

6

Petitioner does emphasize that he received erroneous advice from paralegals

7

(Doc. 20 at 2, 7; Doc. 18 at 6), but this circuit has previously found that an attorney’s

8

erroneous advice in calculating the AEDPA limitations period does not constitute an

9

extraordinary circumstance. See Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001).

10

This reasoning applies with even greater force to the advice of a paralegal. Petitioner

11

also cites instances where he had to struggle with the Arizona Department of Corrections

12

for access to the law library and for appropriate legal forms. See Doc. 18 at 14–18. But

13

the fact that Petitioner was able to file a lengthy and well-researched state court petition

14

(Doc. 14-1, Exhibit P) while the limitations period was running strongly indicates that he

15

had access to the necessary legal materials. Therefore, the Court finds that Petitioner’s

16

lack of access to legal resources in this case does not merit equitable tolling.

17

B.

Mental Illness.

18

Mental illness may be an extraordinary circumstance warranting equitable tolling,

19

when that illness prevents the petitioner from timely filing his habeas petition. Laws, 351

20

F.3d at 923. Petitioner argues that his “mental illness and the cruel/unusual institutional

21

response to it have prolonged [his] ignorance and that is the real reason for his delay.”

22

Doc. 20 at 5.

23

agoraphobia, post-traumatic stress disorder (“PTSD”), catatonia, dissociative identity

24

disorder, hallucinations, and depression. Doc. 20 passim. In the record, there is one

25

letter from a Licensed Professional Counselor showing that Petitioner suffered from

26

PTSD and dissociation between the years 2001 and 2005. Doc. 18 at 22. Finally,

27

Petitioner claims that he was suffering “debilitating agoraphobia and severe clinical

28

depression” in 2010, the year in which the limitations period was running. Doc. 20 at 6.

Petitioner describes various mental ailments from which he suffers:

-4-

1

Although mental illness may in some cases warrant an evidentiary hearing to

2

determine the scope of the illness, Laws, 351 F.3d at 923–24, a district court is not

3

obligated to hold such a hearing where “the record is amply developed, and where it

4

indicates that the petitioner's mental incompetence was not so severe as to cause the

5

untimely filing of his habeas petition[.]” Roberts v. Marshall, 627 F.3d 768, 773 (9th

6

Cir. 2010). In this case, there is a well-developed record of Petitioner’s actions during

7

the limitations period. This Court adopts as correct the R&R’s reasoning on this issue:

8
9
10
11
12
13

In the face of Petitioner’s limited allegations, the Court has before it a
record of an able, persistent, albeit dilatory, litigator. During the running of
the habeas limitations period, Petitioner managed to file his Motion for
Extension of Time to File Petition for Review (Exhibit P). On December
17, 2009, less than a month prior to its commencement, he managed to file
his Motion for Rehearing (Exhibit N), and by February 25, 2011, within
seven weeks of its expiration, he filed his untimely Petition for Review
(Exhibit R). All of this indicates that Petitioner’s mental condition did not
preclude him from litigating.

14
15

Doc. 19 at 12. The ability to file petitions during the limitations period is evidence that

16

Petitioner’s mental illness did not prevent him from filing a habeas petition. See Roberts,

17

627 F.3d at 773; Gaston v. Palmer, 417 F.3d 1030, 1035 (9th Cir. 2005) (“Because

18

[petitioner] was capable of preparing and filing state court petitions [during the

19

limitations period], it appears that he was capable of preparing and filing a [federal]

20

petition during the time in between those dates.”), modified on other grounds, 447 F.3d

21

1165 (9th Cir. 2006); see also Laws, 351 F.3d at 923 (“Of course, a petitioner’s statement

22

[of mental illness], even if sworn, need not convince a court that equitable tolling is

23

justified should countervailing evidence be introduced.”).2 Therefore, this Court finds

24

that Petitioner’s mental illnesses do not warrant equitable tolling.

25
26
2

27
28

Laws is also distinguishable from the present case because the petitioner in Laws
did not file other petitions while his limitations period was running, and there was no
other evidence of the petitioner’s mental competency during that limitations period. See
351 F.3d at 924.
-5-

1
2

IT IS ORDERED:
1.

is accepted.

3
4

2.

Petitioner Lon Roger Coleman’s Petition for Writ of Habeas Corpus
(Doc. 1) is denied.

5
6

Magistrate Judge James F. Metcalf’s Report & Recommendation (Doc. 19)

3.

A certificate of appealability is denied because Petitioner has not made a

7

substantial showing of the denial of a constitutional right as required by 28

8

U.S.C. § 2253(c)(2).

9
10

4.

The Clerk of Court shall terminate this action.

Dated this 1st day of April, 2013.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-6-