Hayden v. Duffy

Filing 31

ORDER signed by Magistrate Judge Dale A. Drozd on 6/30/2015 ORDERING that within 30 days, respondent shall file with the court, in chronological order, the records currently docketed at ECF Nos. 22 -1 - 22 -7; after making this chronological fil ing, respondent shall serve upon petitioner a paper copy of the filed documents that contain the filing's ECF date stamp. Within 30 days of service of the chronologically-organized records, petitioner and respondent shall file briefs as described in this order. The Clerk shall term respondent's 22 motion to dismiss pending submission of the supplemental briefing ordered herein. The Clerk shall substitute Robert W. Fox as the respondent in this action. (Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

ALPHONSO HAYDEN, JR.,

12

Petitioner,

13
14

v.

No. 2:14-cv-1004 WBS DAD P

ORDER

BRIAN DUFFY, Warden,

15

Respondent.

16
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

17
18

under 28 U.S.C. § 2254. Petitioner challenges his 2001 judgment of conviction on five counts of

19

robbery, which ultimately resulted in petitioner being sentenced to forty-six years to life in state

20

prison. Respondent has moved to dismiss the pending federal habeas petition as time-barred.

21

Petitioner opposes the motion, claiming that he is entitled to equitable tolling of the applicable

22

statute of limitations due to his mental illness.
After reviewing the parties’ filings and for the reasons explained below, the court has

23
24

determined that the issues raised by the pending motion require additional briefing. Moreover, an

25

evidentiary hearing may be necessary in order to assess the merits of petitioner’s equitable tolling

26

claim but that determination cannot be made until the supplemental briefing has been submitted

27

and reviewed.

28

/////
1

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

Petitioner seeks equitable tolling of the applicable statute of limitations on the grounds
that he suffers from paranoid schizophrenia. He argues:
From after the time that [petitioner] filed his second petition (1123-04) up to the time he filed his third petition (4-13-13),
[petitioner] was too ill and unable, rationally or factually, to
personally understand the need to timely file, or seek out anyone
else’s help, to effectuate its filing.
[Petitioner’s] delusions made him incapable of rationally
understanding the necessity of filing a timely habeas petition
because before the delusions lifted, nothing anyone might say to
him about the need to timely file would have altered his behavior.
(Opposition (ECF No. 28) at 4-5) (internal citations omitted).
Respondent argues that equitable tolling is unwarranted, writing:
Respondent has obtained a copy of Petitioner’s complete mental
health record. Respondent submits these mental health records as
Exhibit A. Petitioner’s mental health records during his entire
incarceration, especially during the relevant time frame, do not
reflect a mental disorder of a severity that would prevent him from
understanding the need to file a timely federal petition and from
enlisting the proper assistance . . . . The documents reveal that
while Petitioner was included in the mental health treatment
program, he participated as an outpatient in the Correctional
Clinical Case Management System (CCCMS) level of care and was
usually housed in the general prison population until 2008. [. . .] It
appears from the record that Petitioner required a higher level of
care in 2008 and was transferred to the EOP (Enhanced Outpatient
Program) level. This occurred years after the limitations period
expired and is therefore inconsequential. Moreover, Petitioner is
noted as having a global assessment of functioning (GAF) score
ranging from the mid-50s to 70 during the relevant time frame,
which suggests only a mild to moderate impairment.

21

(Motion to Dismiss (ECF No. 22) at 8-9) (internal citations omitted). Respondent goes on to cite

22

numerous instances in petitioner’s medical record when petitioner was identified as being stable

23

while on medications. (Id. at 9-10.) Respondent also cites instances in the medical records

24

describing petitioner as non-compliant in taking medications and experiencing consequent

25

deterioration in his mental health; respondent argues that petitioner is not entitled to equitable

26

tolling during such times. (Id.)

27
28

“A ‘petitioner’ is ‘entitled to equitable tolling’ only where he shows ‘(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and
2

1

prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v.

2

DiGuglielmo, 544 U.S. 408, 418 (2005)). Under Ninth Circuit precedent, a habeas petitioner’s

3

mental illness can qualify as an “extraordinary circumstance” justifying equitable tolling of the

4

AEDPA statute of limitations. Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (“Not

5

surprisingly, we have also long recognized equitable tolling in the context of a petitioner’s mental

6

illness.”). In Bills, the Ninth Circuit set forth a two-part test to determine whether a mental

7

impairment justifies equitable tolling:

8

(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

9
10

(a) petitioner was unable rationally or factually to personally
understand the need to timely file, or

11

(b) petitioner’s mental state rendered him unable personally
to prepare a habeas petition and effectuate its filing.

12
13

(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.

14
15
16

Id. at 1099-1100 (internal citations omitted). “The relevant question [is,] ‘Did the mental

17

impairment cause an untimely filing?’” Stancle v. Clay, 692 F.3d 948, 959 (9th Cir. 2012), cert.

18

denied, __ U.S.__, 133 S. Ct. 1465 (2013) (quoting Bills, 628 F.3d at 1100 n. 3). “In practice,

19

then, to evaluate whether a petitioner is entitled to equitable tolling, the district court must:

20

(1) find the petitioner has made a non-frivolous showing that he had a severe mental impairment

21

during the filing period that would entitle him to an evidentiary hearing; (2) determine, after

22

considering the record, whether the petitioner satisfied his burden that he was in fact mentally

23

impaired; (3) determine whether the petitioner’s mental impairment made it impossible to timely

24

file on his own; and (4) consider whether the circumstances demonstrate the petitioner was

25

otherwise diligent in attempting to comply with the filing requirements.” Bills, 628 F.3d at 1100-

26

01.

27

When a habeas petitioner has raised “a good faith allegation that would, if true, entitle him

28

to equitable tolling,” Laws v. Lamarque, 351 F.3d 919, 923 (9th Cir. 2003), the district court must
3

1

take care to ensure that the record regarding the petitioner’s mental illness is sufficiently

2

developed to rule on the tolling issue. See Chick v. Chavez, 518 Fed. Appx. 567, 568 (9th Cir.

3

2013) (remanding “for further development of the record as to [petitioner]’s mental competency

4

and, if necessary, an evidentiary hearing”).1 Nevertheless, “[w]here the record is amply

5

developed, and where it indicates that the petitioner’s mental incompetence was not so severe as

6

to cause the untimely filing of his habeas petition, a district court is not obligated to hold

7

evidentiary hearings to further develop the factual record, notwithstanding a petitioner’s

8

allegations of mental incompetence.” Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010).

9

Turning to the case at hand, two points appear particularly salient. The first is that

10

petitioner seeks equitable tolling for the entire period of time between November 23, 2004 (when

11

he filed his habeas petition with the Sacramento County Superior Court)2 and April 13, 2013

12

(when he filed his next habeas petition with the California Supreme Court). (Opposition (ECF

13

No. 28) at 4.) However, petitioner has not provided the court with any medical records relating to

14

the period of time prior to 2008 (see ECF Nos. 9-1 – 9-3), and has not provided any justification

15

for equitable tolling prior to 2008 beyond his bare assertion that he has been suffering from

16

mental illness since 1980. (First Amended Petition (ECF No. 9) at 47.) Equitable tolling of the

17

statute of limitations in petitioner’s case prior to 2008 cannot be based solely on this conclusory

18

and otherwise unsupported representation.

19

The second point is that a number of the records submitted by petitioner in this case

20

indicate that he may have started working on his federal habeas petition well before April 13,

21

2013. In this regard, a cursory review of the medical records submitted by petitioner in support of

22

his petition reveals the following clinical notes:


23
24
25
26
27
28

January 16, 2013: “He [petitioner] requested IDTT’s approval to obtain mental health
records as a part of preparation to appeal his case. He stated his cellie has been

1

Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule
36–3(b).
2

It is likely that petitioner only requires equitable tolling to commence on January 31, 2005,
when the Sacramento County Superior Court denied the habeas petition that he filed on
November 23, 2004.
4

helping for the prep.” (ECF No. 9-1 at 6.)

1
2



review.” (ECF No. 9-1 at 3.)

3
4



7

February 28, 2013: “He [petitioner] is spending some time writing appeals to his
sentence of 42-life for robbery.” (ECF No. 9-1 at 2.)

5
6

February 5, 2013: “He [petitioner] is asking his cellie to compose a petition of



March 14, 2013: “Mr. Hayden and another inmate are trying to find reasons to appeal
his sentence.” (ECF No. 9-1 at 1.)

8

Clinical notes, such as those quoted above, suggest to the undersigned that petitioner may have

9

been able to file a petition for federal habeas relief prior to April 13, 2013 or that he was not

10

“otherwise diligent in attempting to comply with the filing requirements” prior to that date. See

11

Bills, 628 F.3d at 1100-01. In either case, petitioner would not be entitled to equitable tolling of

12

the applicable statute of limitations until April 13, 2013, as he seeks. Rather, the statute of

13

limitations would be determined to have resumed running on an earlier date.

14

The difficulty for the court is that neither petitioner nor respondent (who claims to have

15

filed petitioner’s “complete mental health record” with the court (Motion to Dismiss (ECF

16

No. 22) at 8) has submitted records in chronological order. Instead, both parties have arranged

17

their filings in a rather haphazard manner, making it virtually impossible for the court to

18

determine when petitioner’s incompetency may have begun and when it may have ended.

19

Respondent’s filing alone is more than 680 pages long. (See ECF Nos. 22-1 – 22-7.)

20
21
22

In order to facilitate the development of an adequate record, and thereafter decide whether
an evidentiary hearing and/or equitable tolling are warranted, IT IS HEREBY ORDERED that:
1. Within thirty days of entry of this order, respondent is directed to file with the court, in

23

chronological order (or, if any documents are undated, as close to chronological order

24

as is reasonably possible), the records currently docketed at ECF Nos. 22-1 – 22-7.

25

After making this chronological filing, respondent is directed to serve upon petitioner

26

a paper copy of the filed documents that contains the filing’s ECF date stamp, so that

27

petitioner, respondent, and the court may work from, and cite to, a common record

28

with common page numbers.
5

1

2. Within thirty days of service of the chronologically-organized records on respondent,

2

petitioner and respondent are directed to file briefs addressing whether equitable

3

tolling is appropriate in this case for the period between January 31, 2005 and April

4

13, 2013 in light of petitioner’s medical records, the standard quoted above from Bills

5

v. Clark, and in light of other applicable authority. The court will review the parties’

6

supplemental briefing and determine whether an evidentiary hearing is required. Each

7

party’s brief may be no longer than ten pages in length if typewritten, or fifteen pages

8

if handwritten.

9
10
11
12
13

3. The Clerk of the Court is directed to term respondent’s motion to dismiss (ECF
No. 22) pending submission of the supplemental briefing ordered herein.
4. The Clerk of the Court is directed to substitute Robert W. Fox, the current Warden of
California Medical Facility, as the respondent in this action.
Dated: June 30, 2015

14
15
16
17

DAD:10
hayd1004.mtd.supp

18
19
20
21
22
23
24
25
26
27
28
6