Gomes Reynaldo v. Arnold

Filing 39

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 9/11/2017 RECOMMENDING the petition be dismissed. Referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALFONSO GOMES REYNALDO, 12 Petitioner, 13 14 No. 2:15-cv-2182 KJM DB P v. FINDINGS AND RECOMMENDATIONS A. ARNOLD, Warden, 15 Respondent. 16 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a 17 18 writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges a 2007 conviction for second 19 degree murder and assault with a deadly weapon. Below, the court considers respondent’s 20 argument that the petition is untimely and petitioner’s response that he is entitled to equitable 21 tolling. The court will recommend dismissal of the petition as untimely. BACKGROUND 22 After waiving his right to a jury trial, petitioner was convicted by a trial court of second 23 24 degree murder and assault with a deadly weapon. On January 5, 2007, petitioner was sentenced 25 to a term of nineteen years to life, fifteen years on the murder conviction and a consecutive term 26 //// 27 //// 28 //// 1 1 of four years on the assault conviction. (Abstract of Judgment, LD 1.1) In his appeal, petitioner 2 argued that the trial court erred in sentencing him to the upper term for the assault conviction 3 because it relied on facts that were not found beyond a reasonable doubt. On April 3, 2008, the 4 California Court of Appeal for the Third Appellate District rejected that claim and affirmed the 5 conviction. People v. Gomes Reynaldo, No. C054626 (LD 2). Petitioner did not seek direct 6 review in the California Supreme Court. 7 Petitioner filed one state habeas petition in the California Supreme Court on August 2, 8 2009. (LD 3.) He raised the same claim he had raised on appeal. The California Supreme Court 9 denied the petition on January 13, 2010. (LD 4.) The court’s opinion states simply “The petition 10 for writ of habeas corpus is denied. (See In re Waltreus (1965) 62 Cal.2d 218.)” (Id.) A citation 11 to Waltreus indicates that the issues in the petition were raised on appeal. See Waltreus, 62 Cal. 12 2d at 225 (habeas “ordinarily cannot serve as a second appeal”). 13 Petitioner filed the present federal petition on October 17, 2015. (ECF No. 1.) Therein, 14 petitioner raises one claim – that he was sentenced to four years but has served far more time than 15 that. 16 Respondent moved to dismiss the petition on the grounds that it was untimely and 17 petitioner had not exhausted his state remedies. (See ECF No. 14.) In response, petitioner argued 18 that he should be entitled to equitable tolling of the statute of limitations because he is not 19 mentally competent, has limited English language skills, and is unfamiliar with the law. 20 Petitioner also sought stay and abeyance of these proceedings to permit him to exhaust. (See ECF 21 Nos. 20, 23.) Finally, petitioner mentioned other possible habeas claims in his opposition. (ECF 22 No. 23.) 23 The court determined that it had insufficient information to rule on the statute of 24 limitations issues because the court did not have petitioner’s mental health records. The court 25 then considered respondent’s statement that petitioner’s claim was, in any event, meritless 26 27 28 1 Respondent lodged copies of documents from the state court record on February 8, 2017. (See ECF Nos. 30, 31.) Those documents are identified herein by the Lodged Document “LD” number assigned them by respondent. 2 1 because petitioner had been sentenced to a term of nineteen years to life. The court ordered 2 petitioner to address respondent’s evidence showing that petitioner’s sentence was nineteen years 3 to life. The court further informed petitioner that if he wished to raise additional claims, he must 4 move to amend the petition. (ECF Nos. 32, 34.) 5 In a document filed April 24, 2017, petitioner did not directly address respondent’s 6 evidence showing the length of his sentence. Instead, petitioner states that his “jailhouse lawyer” 7 failed to fully exhaust all of petitioner’s sentencing issues in the lower courts. Petitioner contends 8 that his mental health issues and severely limited grasp of the English language hindered his 9 ability to assist in preparation of his petition. Petitioner seeks dismissal of this action without 10 prejudice so that he may exhaust the “constitutional claims surrounding the totality of sentencing 11 issues.” (ECF No. 35.) The court considered petitioner’s filings as attempts to amend his petition to assert new 12 13 claims. (May 31, 2017 Order (ECF No. 36).) Recognizing that any amendment would be futile if 14 petitioner’s original petition was untimely, the court re-opened consideration of the statute of 15 limitations and equitable tolling issues. The court ordered respondent to provide the court with a 16 copy of petitioner’s mental health records from the date of his incarceration in 2007 through the 17 present. Respondent lodged those records on June 30, 2017. (See ECF Nos. 37, 38.) 18 19 20 STATUTE OF LIMITATIONS I. Background The court found previously that petitioner’s 2015 federal petition was filed well outside 21 the one-year statute of limitations. (Feb. 17, 2017 Order (ECF No. 32).) Petitioner’s conviction 22 was final on May 13, 2008. (See id. at 5.) Therefore, the statute of limitations began to run the 23 following day and petitioner’s federal petition was due on May 14, 2009. Petitioner is not 24 entitled to statutory tolling because he did not file a state petition within that one year period. 25 (See id.) Even if petitioner was entitled to statutory tolling, his petition was still untimely. If the 26 court considers the statute tolled during the period petitioner’s one state habeas petition was 27 pending, then his federal petition should have been filed no later than January 13, 2011, one year 28 after the California Supreme Court denied his state habeas petition. (See id.) Petitioner did not 3 1 file his federal habeas petition until more than four years later on October 17, 2015, the date he 2 placed his petition in the mail. (ECF No. 1 at 7.) 3 The court also notes here that a later trigger date for the statute of limitations is possible 4 under 28 U.S.C. § 2244(d)(1)(D). Pursuant to that section, the one-year-limitation period runs 5 from “the date on which the factual predicate of the claim or claims presented could have been 6 discovered through the exercise of due diligence.” While petitioner’s new claims are not clear, it 7 is clear that he is alleging his jailhouse lawyer erred when he failed to raise them in petitioner’s 8 state petitions. Therefore, petitioner is not asserting newly discovered claims and the later trigger 9 date of subsection (d)(1)(D) does not apply. Petitioner’s federal petition can thus only be deemed timely if the limitations period was 10 11 equitably tolled. The time period the court considers, giving petitioner every benefit of the doubt, 12 is between May 2008 when his conviction became final and January 2011, the last possible date 13 he could have filed a timely federal petition. Petitioner states three grounds for equitable tolling: 14 his mental competence, his limited English language skills, and his unfamiliarity with the law. 15 II. Is Petitioner Entitled to Equitable Tolling? 16 A. General Legal Standards 17 The limitations period of § 2244(d)(1) may be equitably tolled if a petitioner establishes 18 “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance 19 stood in his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) 20 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). An extraordinary circumstance must 21 be more than merely “‘oversight, miscalculation or negligence on [the petitioner's] part.’” 22 Waldron–Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (quoting Harris v. Carter, 515 23 F.3d 1051, 1055 (9th Cir. 2008)). Rather, petitioner must show that some “external force” “stood 24 in his way.” Id. “The high threshold of extraordinary circumstances is necessary lest the 25 exceptions swallow the rule.” Lakey v. Hickman, 633 F.3d 782 (9th Cir. 2011) (citations and 26 internal quotation marks omitted). 27 //// 28 //// 4 1 2 3 B. Analysis 1. Ignorance of the Law The Ninth Circuit has made clear that a “pro se petitioner’s lack of legal sophistication is 4 not, by itself, an extraordinary circumstance warranting equitable tolling.” Rasberry v. Garcia, 5 448 F.3d 1150, 1154 (9th Cir. 2006); see also Baker v. Cal. Dep't of Corr., 484 F. App’x 130, 131 6 (9th Cir. 2012) (“Low literacy levels, lack of legal knowledge, and need for some assistance . . . 7 are not extraordinary circumstances to warrant equitable tolling.”). Because a lack of legal 8 knowledge is a circumstance common to many prisoners, it is neither an “extraordinary 9 circumstance” or an “external force” which would justify equitable tolling. 10 11 2. Limited English Ability The mental health records submitted by respondent include petitioner’s TABE scores. 12 “The TABE (Tests of Adult Basic Education) scores reflect an inmate's educational achievement 13 level and are expressed in numbers reflecting grade level.” Marcelo v. Hartley, No. CV 06-3705 14 CAS (SS), 2008 WL 4057003, *4 n. 7 (C.D. Cal. Aug. 27, 2008) (citing In re Roderick, 154 Cal. 15 App. 4th 242, 253 n. 5, 257 n. 10 (2007)). The TABE test is an English language test. 16 Petitioner’s TABE scores were extremely low. They varied from 0.0 to 3.0. (ECF No. 38 at 50- 17 52, 122, 124, 138.) Primarily, petitioner was rated under 2.0. That score indicates petitioner had 18 English language skills at a second grade level or below. 19 California regulations require inmates with a TABE score lower than 4.0 to be evaluated 20 for staff assistance or a reasonable accommodation for “effective communication” in prison 21 disciplinary proceedings. 15 Cal. Code Regs. § 3000. However, low literacy levels are not 22 extraordinary circumstances warranting equitable tolling. See Baker, 484 F. App’x at 131; Payne 23 v. Valenzuela, No. CV 15-3243 FMO (AFM), 2015 WL 9914190, at *5 (C.D. Cal. Dec. 4, 2015) 24 (TABE scores ranging from 1.7 to 2.2 do not constitute an extraordinary circumstance for 25 purposes of equitable tolling), rep. and reco. adopted, 2016 WL 304294 (C.D. Cal. Jan. 25, 2016); 26 Green v. Small, No. CV 10-0139 DOC(JC), 2011 WL 91045, at *2 (C.D. Cal. Jan. 2, 2011) 27 (rejecting petitioner's claim of entitlement to equitable tolling based on pro se status, lack of legal 28 knowledge or sophistication, and illiteracy), rep. and reco. adopted, 2011 WL 91045 (C.D. Cal. 5 1 Jan. 2, 2011); Stableford v. Martel, No. SA CV 09-1071 JST(RZ), 2010 WL 5392763, at *3 (C.D. 2 Cal. Sept. 14, 2010) (rejecting petitioner's argument that his illiteracy, dyslexia, lack of education, 3 and limited access to “inadequate” prison library were “sufficiently extraordinary to warrant 4 tolling of the limitations period”), rep. and reco. adopted, 2010 WL 5416838 (C.D. Cal. Dec. 20, 5 2010). 6 Further, language limitations do not, per se, justify equitable tolling. See Mendoza v. 7 Carey, 449 F.3d 1065, 1069-70 (9th Cir. 2006). Rather, a petitioner must show that the language 8 barriers “actually prevented timely filing.” Id. Petitioner argues that it took him “many years and 9 many attempts to locate a person with sufficient legal acumen and bi-lingual skills to enlighten 10 and competently assist petitioner in his quest for [a] remedy.” (Resp. to Order to Address Stat. of 11 Lim. (ECF No. 23 at 4).) As stated above, ignorance of the law, or lack of “legal acumen” is not, 12 however, grounds for equitable tolling. Nor is a lack of legal assistance or of adequate legal 13 assistance. See Jensen v. Madden, No. 2:17-cv-1081 GEB AC P, 2017 WL 3069445, at *2 (E.D. 14 Cal. July 19, 2017) (citing Lawrence v. Florida, 549 U.S. 327, 336-37 (2007)). Even though he 15 has relied upon third parties to file for him, petitioner retained the “personal responsibility of 16 complying with the law.” Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010). Moreover, 17 petitioner’s statement that he spent a long time looking for the right person to help him indicates 18 that petitioner did, in fact, know that he needed to pursue his legal remedies before he finally filed 19 his petition here. 20 Further, the record shows that petitioner did have the assistance of a translator for his legal 21 needs at various points between 2008 and 2011. Petitioner apparently had the help of a translator 22 in filing a habeas petition in the California Supreme Court in August 2009. (See LD 3.) He also 23 had translation assistance in 2010 when he filed an inmate appeal. (See LD 5.2) Petitioner does 24 not allege he was unable to obtain translation help, only that he was unable to obtain someone 25 with legal experience who could provide translation help. 26 27 28 2 To the extent there is any argument that petitioner was unable to find a translator prior to January 2011, it should be noted that he also had translation assistance to file grievances in 2013 and 2014, showing that he could have filed his federal petition prior to October 2015. (LD 6, 7.) 6 1 Because petitioner's limited English abilities also do not warrant equitable tolling, the 2 court is left to consider petitioner’s contention that his mental incompetence should be considered 3 a ground to equitably toll the statute of limitations. 4 3. 5 6 Mental Incompetence a. Legal Standards A petitioner’s mental impairment may provide a basis for equitable tolling. The Ninth 7 Circuit has articulated a specific, two-part test for an equitable tolling claim based on a 8 petitioner's mental impairment: 9 (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 10 11 (a) petitioner was unable to rationally or factually to personally understand the need to timely file, or 12 (b) petitioner's mental state rendered him unable personally to prepare a habeas petition and effectuate its filing. 13 14 (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. 15 16 17 Bills v. Clark, 628 F.3d 1092, 1099–1100 (9th Cir. 2010) (citations and footnote omitted; italics 18 in original); see also Orthel v. Yates, 795 F.3d 935, 938 (9th Cir. 2015) (“A petitioner seeking 19 equitable tolling on the grounds of mental incompetence must show extraordinary circumstances, 20 such as an inability to rationally or factually personally understand the need to timely file, or a 21 mental state rendering an inability personally to prepare a habeas petition and effectuate its 22 filing.”). 23 “The relevant question [is,] ‘[d]id the mental impairment cause an untimely filing?’” 24 Stancle v. Clay, 692 F.3d 948, 959 (9th Cir. 2012) (quoting Bills, 628 F.3d at 1100 n. 3.) Bills 25 provides further guidance for applying its two-part test: 26 27 28 [T]o evaluate whether a petitioner is entitled to equitable tolling, the district court must: (1) find the petitioner has made a non-frivolous showing that he had a severe mental impairment during the filing period that would entitle him to an evidentiary hearing; (2) determine, after considering the record, whether the 7 1 petitioner satisfied his burden that he was in fact mentally impaired; (3) determine whether the petitioner's mental impairment made it impossible to timely file on his own; and (4) consider whether the circumstances demonstrate the petitioner was otherwise diligent in attempting to comply with the filing requirements. 2 3 4 5 Bills, 628 F.3d at 1100–01. “This reiterates the stringency of the overall equitable tolling test: 6 the mental impairment must be so debilitating that it is the but-for cause of the delay, and even in 7 cases of debilitating impairment the petitioner must still demonstrate diligence.” Yeh v. Martel, 8 751 F.3d 1075, 1078 (9th Cir. 2014) (citing Bills, 628 F.3d at 1100). Thus, the first hurdle under Bills is determining whether petitioner had a “severe mental 9 10 impairment” that would entitle him to an evidentiary hearing on the equitable tolling issue. This 11 court should order an evidentiary hearing where the “current record ‘does not clearly answer’ the 12 question of whether . . . extraordinary circumstances caused the untimely filing.” Winston v. 13 Myles, No. 2:12-cv-1844-JAD-CWH, 2014 WL 1236546, at *2 (D. Nev. Mar. 25, 2014) (quoting 14 Porter v. Ollison, 620 F.3d 952, 961-62 (9th Cir. 2010)). The district court must take care to ensure that the record regarding the petitioner's mental 15 16 illness is sufficiently developed to rule on the tolling issue. See Chick v. Chavez, 518 F. App’x 17 567, 568 (9th Cir. 2013) (remanding “for further development of the record as to [petitioner]'s 18 mental competency and, if necessary, an evidentiary hearing” where record revealed no medical 19 evidence from the time period for which the petitioner sought tolling); Bills, 628 F.3d at 1099– 20 1100 (remanding where the petitioner was in the lowest percentile for verbal IQ, verbal 21 comprehension and working memory, and, according to clinical psychologists, was incapable of 22 inferential thinking necessary to complete a federal habeas form). Nevertheless, “[w]here the 23 record is amply developed, and where it indicates that the petitioner's mental incompetence was 24 not so severe as to cause the untimely filing of his habeas petition, a district court is not obligated 25 to hold evidentiary hearings to further develop the factual record, notwithstanding a petitioner's 26 allegations of mental incompetence.” Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010); see 27 also Orthel, 795 F.3d at 939–40. 28 //// 8 Courts have held that a district court’s review of a petitioner’s mental health records for 1 2 the time period in question is sufficient to make that determination. See Roberts, 627 F.3d at 773 3 (district court’s review of the petitioner’s “extensive medical records” was an amply developed 4 record upon which district court could find an evidentiary hearing unnecessary); Orthel, 795 F.3d 5 at 939 (When the district court ordered the petitioner’s entire medical record to evaluate his 6 mental health, it “demonstrated sensitivity to its obligation to ensure that the record is amply 7 developed, pursuant to Roberts, and to make a determination based on the ‘totality of the 8 circumstances,’ as required by Bills.”); Taylor v. Filson, No. 16-15426, 2017 WL 2684132, at *1 9 (9th Cir. June 21, 2017) (district court’s review of the petitioner’s medical records sufficient to 10 conclude equitable tolling not warranted based on the petitioner’s mental health) (citing Orthel, 11 795 F.3d at 939, and Bills, 628 F.3d at 1100). 12 b. Discussion This court has reviewed the 165 pages of petitioner’s mental health records provided by 13 14 respondent. (See ECF No. 38.) Below, the court sets out what those records show, with a 15 particular focus on the time period between May 2008 and January 2011, when petitioner should 16 have filed his federal petition.  17 In 2007 when petitioner was admitted to the prison system, he was excluded from the 18 Developmental Disability Program (“DDP”) after receiving a passing score on a cognitive 19 test. (ECF No. 38 at 12, 154.) After completing a mental health screening, petitioner was 20 cleared to be housed in the general population. (Id. at 12.)  21 In April 2009, petitioner referred himself to the mental health department. (Id. at 151.) 22 He told the psychologist that he felt he was in prison for something he did not do, he was 23 sad, and he had difficulty with his short-term memory. According to this record, the 24 psychologist discussed the CCCMS program with petitioner.3  25 26 27 28 3 The earliest mental health diagnosis in petitioner’s records is five days later, on April 20, Inmates designated to the CCCMS level of care “are those ‘whose symptoms are under control or in partial remission’” and can function in the general prison population, administrative segregation, or segregated housing unit. Coleman v. Brown, 28 F. Supp. 3d 1068, 1074 (E.D. Cal. 2014). 9 1 2009. The psychiatrist who saw petitioner assessed him with post-traumatic stress 2 disorder (“PTSD”) and depression. (Id. at 150-51). The PTSD diagnosis remained 3 petitioner’s primary diagnosis throughout his records. The depression diagnosis was less 4 frequent, but appears consistently.  5 The April 20, 2009 record also shows that petitioner was housed with the designation 6 “CCCMS.” (Id. at 150.) He continued to be housed that way through 2010 (id. at 4, 11), 7 2011 (id. at 74), 2013 (id. at 45, 52), 2014 (id. at 44), and 2015 (id. at 75). It does not 8 appear that petitioner ever was placed in a higher level of care.  9 A June 2009 record shows that a staff psychologist’s clinical impression was that 10 petitioner had “Depressive Disorder.” (Id. at 149.) The notes from this appointment 11 include a statement that “Inmate doesn’t realize what is going on.” The psychologist 12 indicated that petitioner did not understand what “depressive disorder” is and that he did 13 not “have ability to communicate with people who can help him.” However, the 14 psychologist gave petitioner a GAF score of 55.4  15 In a January 20, 2010 progress note, the clinician diagnosed petitioner with PTSD and 16 depression. (Id. at 146.) The clinician also noted that petitioner was having “flashbacks 17 about crime” and visual hallucinations. Despite those notations, the clinician assigned 18 petitioner a GAF score of 60.  19 On January 28, 2010, petitioner had an annual review of his mental health treatment plan. 20 (See id. at 8.) It was noted that petitioner had a diagnosis of PTSD and that he had 21 recently been prescribed medication for depression.  22 In April 2010, a clinician diagnosed petitioner with depression and noted no 23 hallucinations. (Id. at 143.) The clinician added a note that petitioner had not had 24 problems with hallucinations since he started medication. The clinician also circled “no” 25 4 26 27 28 “Global Assessment of Functioning,” or “GAF,” is a scale that was used by clinicians to assess an individual's overall level of functioning, including the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders with Text Revisions 32 (4th ed. 2004) (“DSM IV–TR”). It is described in more detail in the text below. 10 1 regarding whether petitioner’s thought processes were “goal directed” and whether he had 2 “linear and logical” thinking. However, the clinician gave petitioner a GAF score of 65- 3 75.  4 An October 2010 record shows the following diagnoses: PTSD, depression, anxiety, 5 paranoia, and ETOH5 dependence. (Id. at 5-6.) Those records show a psychologist’s 6 finding that petitioner “was not so mentally disordered that he couldn’t function within the 7 structure of the EOP6 program” and he did not require “highly structured psychiatric 8 care.” (Id. at 7.) Petitioner had “normal cognition functioning” and the psychologist 9 found “[n]o barriers to effective communication,” with a Spanish translator.  10 On April 14, 2011, petitioner reported having had auditory and visual hallucinations. (Id. 11 at 19.) It is not clear from the notation whether those hallucinations were one year or one 12 month “ago.” However, ten days later, he reported no hallucinations. (Id. at 18.) In an 13 October 2016 notation, the clinician wrote that plaintiff told him he had initiated mental 14 health services in 2014 for visual and auditory hallucinations. (Id. at 36.) In all but a 15 couple of petitioner’s records, no hallucinations are noted.  16 Also, at a few points in the records, staff reported that petitioner was talking to himself. 17 (See id. at 63, 131-32.) However, a clinician who noted that fact also noted that petitioner 18 was “stable” off of his psychiatric medication in 2013. (Id. at 131-32.)  19 A January 8, 2015 “classification committee chrono,” reflects that, for the time period 20 between January 11, 2014 through January 10, 2015, petitioner “was reviewed under P.C. 21 2962 and meets the criteria for referral as a Mentally Disordered Offender.” (Comp. (ECF 22 23 5 ETOH stands for ethanol and is used to signify alcohol dependence. See http://medicaldictionary.thefreedictionary.com/ethyl+alcohol. 24 6 25 26 27 28 EOP is the abbreviation for Enhanced Outpatient Program, which is a prison mental health care program designation. Cal. Code Regs., tit. 15, § 3040.1(d); Coleman, 28 F. Supp. 3d at 1075. Inmates in the EOP level of care have “acute onset or significant decompensation of a serious mental disorder.” Id. CCCMS is the least severe level of care for mentally ill inmates and EOP is the next least severe level. See Steward v. Sherman, No. C 15-667 WHA(PR), 2016 WL 3345308, at *3 (N.D. Cal. June 16, 2016). There is no indication petitioner was ever assigned to an EOP level of care. 11 1 No. 1 at 17).) As described by the court previously, this chrono indicates petitioner had 2 “an illness or disease or condition that substantially impairs the person's thought, 3 perception of reality, emotional process, or judgment; or which grossly impairs behavior; 4 or that demonstrates evidence of an acute brain syndrome for which prompt remission, in 5 the absence of treatment, is unlikely.” (See ECF No. 32 at 7.) This document states that 6 petitioner’s custody level should “remain the same” at “Medium A.7”  7 At most of his mental health appointments, petitioner was assigned a GAF score. 8 Petitioner’s GAF scores ranged from a low of 55 to a high of 70. Most of his scores were 9 in the 58 to 65 range. At no time was petitioner assigned a score lower than 55. (See id. 10 at 148-149 (scores between 55 and 63 in 2009); 13, 139-142 (scores between 60 and 70 in 11 2010); 21, 71-73 (scores between 65 and 70 in 2011); 57, 64 (scores between 60 and 65 in 12 2012); 53, 131-132 (scores between 65 and 67 in 2013); 43-44, 116-117 (scores between 13 58 and 68 in 2015).) 14 To summarize, with respect to the time period during 2009 through January 2011, the time 15 period during which a federal habeas petition would have been timely filed, petitioner’s mental 16 health records show that he was diagnosed with PTSD, depression, anxiety, and alcohol 17 dependence. Also during some of that time, petitioner reported having hallucinations. However, 18 hallucinations reported in January 2010 appear to have been resolved by April 2010. An October 19 2010 report showed petitioner with normal cognitive functioning. Even if petitioner was 20 experiencing hallucinations in early 2011 and later in 2014, they were not consistent. Further, petitioner’s hallucinations did not prevent clinicians from assigning petitioner a 21 22 GAF score within a functional range. A GAF of 61–70 indicates some mild symptoms (e.g., 23 depressed mood and mild insomnia) or some difficulty in social, occupational, or school function 24 (e.g, occasional truancy, or theft within the household), but generally functioning pretty well, has 25 some meaningful interpersonal relationships. Am. Psychiatric Ass'n, Diagnostic and Statistical 26 7 27 28 A designation of “Medium A” custody means the inmate shall be housed in “cells or dormitories within the facility security perimeter,” the inmate’s “assignments and activities shall be within the facility security perimeter,” and “[s]upervision shall be frequent and direct.” 15 Cal. Code Regs. § 3377.1(a)(4) 12 1 Manual of Mental Disorders with Text Revisions 32 (4th ed. 2004). A GAF of 51–60 indicates 2 moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or 3 moderate difficulty in social, occupational, or school function (e.g., few friends, conflicts with 4 peers or co-workers). Id. A 41– 50 rating indicates serious symptoms such as suicidal ideation, 5 severe obsessional rituals, or serious impairment in social, work, or school functioning. Id. A 6 GAF of 31–40 indicates: “Some impairment in reality testing or communication (e.g., speech is at 7 times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or 8 school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, 9 neglects family, and is unable to work; child frequently beats up younger children, is defiant at 10 home, and is failing at school.)” Id. A GAF of 21–30 indicates: “Behavior is considerably 11 influenced by delusions or hallucinations OR serious impairment in communication or judgment 12 (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) OR inability to 13 function in almost all areas (e.g., stays in bed all day; no job, home, or friends).” Id. 14 Petitioner was never assigned a GAF score lower than 55 and they were mostly above 60. 15 While GAF scores are not dispositive, petitioner’s consistently moderate GAF scores are not 16 consistent with a finding that he was so impaired by his PTSD and depression that he could not 17 understand the need to seek habeas relief and to take steps to seek such relief.8 See Lawrence v. 18 Lizzaraga, No. 2:16-cv-0792 GEB AC P, 2017 WL 495774, at *4 (E.D. Cal. Feb. 7, 2017) (GAF 19 score of 68 means petitioner’s “mental faculties were within normal limits” and does not support 20 equitable tolling); Davis v. Malfi, No. CV 06-4744-JVS (JEM), 2015 WL 1383776, at *3 (C.D. 21 8 22 23 24 25 26 27 28 The court recognizes that the American Psychiatric Association discontinued use of the GAF scale. See Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders, 16 (5th ed. 2013) (GAF scale dropped due to its “conceptual lack of clarity” and “questionable psychometrics in routine practice”). However, the Ninth Circuit has continued to look to the GAF score as “a rough estimate of an individual's psychological, social, and occupational functioning used to reflect the individual's need for treatment.” Garrison v. Colvin, 759 F.3d 995, 1003 n. 4 (9th Cir. 2014) (finding in the context of a social security disability appeal that GAF scores are relevant to the disability assessment); see also Dowdy v. Curry, 617 F. App’x 772 (9th Cir. 2015) (GAF score indicating “only moderate symptoms of impairment” did not support equitable tolling). In addition, as shown by the citations in the text, other district courts in this circuit continue to consider GAF scores when determining whether a petitioner’s mental state justifies equitable tolling. 13 1 Cal. Mar. 20, 2015) (GAF scores between 60 and 70, with two scores of 53 and 55, among the 2 court’s reasons for finding no basis for equitable tolling based on mental incompetence); Sigmon 3 v. Kernan, No. CV 06-5807 AHM (JWJ), 2009 WL 1514700, at *9 (C.D. Cal. May 27, 2009) 4 (GAF scores between 55 and 66 “indicate only mild to moderate impairment” and do not provide 5 a basis for equitable tolling); Lawless v. Evans, 545 F. Supp. 2d 1044, 1049 (C.D. Cal. 2008) 6 (GAF score of 65 does not justify claim for equitable tolling due to mental incompetence) 7 With respect to plaintiff’s classification as a Mentally Disordered Offender, state law uses 8 this categorization in order to require mental health treatment as a condition of parole. See Cal. 9 Penal Code § 2962. One of the factors for identifying an inmate under this section is that the 10 severe mental disorder “was one of the causes of, or was an aggravating factor in, the commission 11 of a crime for which the prisoner was sentenced to prison.” Cal. Penal Code § 2962(b). 12 Therefore, the court assumes, the condition existed both prior to, and during, petitioner’s 13 incarceration. The statute specifically excludes some disorders such as personality disorders, 14 developmental disabilities, and addiction. Id. § 2962(a)(2). Because this section appears to cover 15 a multitude of diagnoses and ability levels, without more information about why petitioner was 16 found to qualify, the court does not find that this designation overrides the specific observations 17 of clinicians in petitioner’s medical records over the years. 18 Finally, petitioner’s treatment at the CCCMS level of care “suggests that petitioner was 19 able to function despite his mental health problems.” Washington v. McDonald, No. CV 09- 20 2632-JVS (AJW), 2010 WL 1999469, at *2 (C.D. Cal. Feb. 19, 2010) (citing Coleman, 922 F. 21 Supp. 2d at 903 n. 24), rep. and reco. adopted, 2010 WL 1999465 (C.D. Cal. Feb. 24, 2010). 22 CCCMS is the least restrictive level of mental health care and meant that petitioner was 23 consistently housed in the general population. 24 This is not a case like that considered by the Ninth Circuit in Forbess v. Franke, 749 F.3d 25 837 (9th Cir. 2014). In that case, the prisoner had persistent delusions that he was working for the 26 FBI. His delusions were documented by various doctors and they were elaborate. He explained 27 that his delusions caused him to believe he had no need to file a federal habeas petition because 28 his work for the FBI would result in his release. 749 F.3d at 839. Petitioner in the present case 14 1 had neither consistent delusions nor delusions that appeared to affect his thinking about his legal 2 status. 3 In cases like the present one, where a petitioner had mental health problems but had 4 cognitive abilities within normal ranges, the Ninth Circuit has held equitable tolling is not 5 warranted. In Roberts v. Marshall, 627 F.3d 768, 770 (9th Cir. 2010), the court declined 6 equitable tolling because the petitioner's mental health records showed that he was medicated for 7 severe psychotic depression disorder, but he had normal mental functions, his appearance, 8 behavior, mood, speech, appetite, sleep and affect were within normal limits, he was not 9 delusional, and had normal insight and judgment. In Orthel v. Yates, 795 F.3d 935, 941 (9th Cir. 10 2015), the Ninth Circuit affirmed the dismissal of a petition where substantial evidence showed 11 that, despite fluctuations in mental health, the petitioner possessed sufficient competence and 12 capability in the year following the date on which the state court judgment became final as well as 13 sufficient competence during much of the eleven-year span between finality of judgment and 14 filing of his federal petition. 15 The records provided do not reflect that petitioner has or had a mental impairment so 16 severe that he was unable to rationally or factually understand the need to timely file a petition or 17 that he was rendered unable to file a petition. Rather, the records show that petitioner’s 18 functional impairment was moderate, at most, and his cognition has been intact throughout almost 19 all of his incarceration. Further, and importantly, there is no indication in the record that 20 petitioner’s mental health previously made it impossible to file a timely petition but had improved 21 in 2015 to the point he could do so. Rather, petitioner’s diagnoses appear fairly consistent over 22 the course of his incarceration. Based on the court’s review of petitioner’s mental health records, 23 and based on this district court’s limited resources and time, this court does not find an 24 evidentiary hearing is required to make a determination of petitioner’s mental competence. The 25 existing record is sufficient to conclude that petitioner had the mental capacity to understand the 26 need to timely file a petition and to effectuate its filing. 27 Finally, even if petitioner satisfied the first prong of the Bills test, equitable tolling would 28 not be warranted because petitioner has not shown that he was diligent in pursuing his claims “to 15 1 the extent that he could understand them, but that [his] mental impairment made it impossible to 2 meet the filing deadline under the totality of the circumstances, including reasonably available 3 access to assistance.” Bills, 628 F.3d at 1100. Petitioner has not alleged any specific facts 4 showing that he attempted, between 2008 and 2011, to obtain assistance in order to file a timely 5 petition or that his mental impairment prevented him from locating assistance or from 6 understanding any assistance that he had obtained. Id. at 1100-01; see also Lott v. Mueller, 304 7 F.3d 918, 923 (9th Cir. 2002) (equitable tolling determinations “turn[] on an examination of 8 detailed facts”). Petitioner’s simple statement that it took him a long time to find another inmate 9 with the English/Spanish skills and “legal acumen” to help him is not sufficiently specific to 10 demonstrate diligence. 11 CONCLUSION 12 This court finds petitioner is not entitled to equitable tolling based on his ignorance of the 13 law, limited English language skills, or mental health. Therefore, the petition is untimely under 14 28 U.S.C. § 2244(d)(1) and IT IS HEREBY RECOMMENDED that the petition be dismissed. 15 These findings and recommendations will be submitted to the United States District Judge 16 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 17 after being served with these findings and recommendations, any party may file written 18 objections with the court and serve a copy on all parties. The document should be captioned 19 “Objections to Magistrate Judge's Findings and Recommendations.” Any response to the 20 objections shall be filed and served within seven days after service of the objections. The parties 21 are advised that failure to file objections within the specified time may result in waiver of the 22 right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In the 23 objections, the party may address whether a certificate of appealability should issue in the event 24 an appeal of the judgment in this case is filed. See Rule 11, Rules Governing § 2254 Cases (the 25 //// 26 //// 27 //// 28 //// 16 1 district court must issue or deny a certificate of appealability when it enters a final order adverse 2 to the applicant). 3 Dated: September 11, 2017 4 5 6 7 8 9 10 11 12 13 14 15 16 DLB:9 DLB1/prisoner-habeas/reyn2182.fr2 17 18 19 20 21 22 23 24 25 26 27 28 17

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