Clark v. Gastelo

Filing 17

ORDER for Further Briefing and Supplementation of the Court's Record. Petitioner's supplemental brief and any supporting documentation shall be filed no later than 6/13/2017. Respondent shall file a brief in reply to Petitioner's supplemental brief no later than 6/23/2017. Signed by Magistrate Judge Jan M. Adler on 5/23/2017.(All non-registered users served via U.S. Mail Service)(acc)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

BRENT CLARK,

Case No.: 16CV1803-AJB(JMA)
Petitioner,

12
13

v.

14

J. GASTELO, WARDEN,

15

ORDER FOR FURTHER
BRIEFING AND
SUPPLEMENTATION OF THE
COURT’S RECORD

Respondent.

16
17

Petitioner Brent Clark is a state prisoner, proceeding without counsel, with

18

a petition for a writ of habeas corpus (“Petition”) pursuant to 28 U.S.C. § 2254.

19

[Doc. No. 1.] Petitioner challenges his 2004 conviction for kidnapping for robbery,

20

Cal. Pen. Code § 209(b)(1); forcible copulation, Cal. Pen. Code § 288a(c)(2);

21

robbery, Cal. Penal Code § 211; and burglary, Cal. Penal Code § 459. [Id.]

22

Respondent has filed a motion to dismiss, arguing the Petition must be dismissed

23

because Petitioner’s claims are barred by the one-year statute of limitations.

24

[Doc. No. 10.] On January 17, 2017, Petitioner filed a brief in opposition to the

25

motion to dismiss, contending that his Petition should be considered timely

26

because he is entitled to equitable tolling, and on March 20, 2017, he filed

27

supplemental exhibits in support of his opposition. [Doc. Nos. 15 & 16.] After

28

careful consideration, the undersigned finds Petitioner should be granted the
1
16CV1803-AJB(JMA)

1

opportunity to further develop the record before the Court rules on the motion to

2

dismiss.

3

I.

Introduction and Procedural Background

4

Petitioner’s efforts to challenge his conviction commenced with an appeal

5

to the California Court of Appeal, in which he argued the trial court erred by: (1)

6

failing to conduct a fifth hearing on his competency to stand trial; and (2) granting

7

his request for self-representation despite his incompetence. [Lod. No. 1, App. at

8

2.] The Court of Appeal rejected these claims on the merits and affirmed the

9

judgment on January 25, 2008. [Lod. No. 1, App.] Thereafter, Petitioner

10

petitioned the California Court of Appeal for review of both claims. [Lod. No. 1.]

11

The California Supreme Court denied review on May, 14, 2008. [Lod. No. 2.]

12

The record indicates Petitioner did not take any further action to challenge

13

his conviction for more than six years, until June 16, 2015, when he filed a

14

motion in the San Diego Superior Court to modify his sentence by striking his

15

restitution fine and reducing it to $200. [Lod. No. 3.] The motion was denied on

16

July 20, 2015. [Id.] Petitioner then filed a notice of appeal on August 4, 2015.

17

[Lod. No. 4.] The California Court of Appeal dismissed the appeal on September

18

3, 2015, finding the Superior Court’s order was not appealable because it did not

19

affect Petitioner’s substantial rights, and noting the Superior Court lost jurisdiction

20

to resentence Petitioner once the execution of his sentence commenced. [Lod.

21

No. 5.]

22

On January 21, 2016, Petitioner filed a habeas petition in the Superior

23

Court, claiming (1) his trial and appellate counsel were ineffective in failing to

24

raise and investigate issues relating to sentencing; (2) the trial court abused its

25

discretion in failing to dismiss one or more strike allegations; (3) the trial court

26

should not have permitted him to waive counsel because he was mentally

27

incompetent; and (4) the trial court should not have permitted him to represent

28

himself because of his mental incompetence. [Lod. No. 6.] On March 3, 2016, the
2
16CV1803-AJB(JMA)

1

Superior Court found the habeas petition was “procedurally barred for being

2

untimely.” [Lod. No. 7, at 3-4.] The court also rejected Petitioner’s ineffective

3

assistance of counsel claims as conclusory and ruled Petitioner’s sentencing

4

error claim was “fatally flawed” because Petitioner was sentenced as a violent

5

sex offender under California’s One Strike law, Cal Pen. Code § 667.61, not as a

6

recidivist under California’s Three Strikes law, Cal. Pen. Code § 667(b)-(i). [Id. at

7

3-5.] Finally, the court found Petitioner’s competency-related claims were not

8

cognizable on habeas corpus because those claims were raised and rejected on

9

direct appeal. [Id. at 5.] The next day, March 4, 2016, the Superior Court denied

10

Petitioner’s second motion to modify his sentence by reducing the restitution fine,

11

ruling it did not have jurisdiction to modify the sentence because more than 120

12

days had passed since sentencing, and that Petitioner waived his right to

13

challenge the restitution fine by failing to object at sentencing. [Lod. No. 8.]

14

On March 28, 2016, Petitioner filed a notice of appeal in the California

15

Court of Appeal, challenging the Superior Court’s denial of his motion to modify

16

his sentence. [Lod. No. 9 at 2.] Two days later, on March 30, 2016, he also filed a

17

notice of appeal of the Superior Court’s denial of his habeas petition. [Lod. No.

18

10.] On April 7, 2016, the Court of Appeal addressed Petitioner’s notice of

19

Appeal relating to the habeas petition, construing the filing as a petition for writ of

20

habeas corpus and denying habeas relief. [Lod. No. 11.] The following day, April

21

8, 2016, the Court of Appeal addressed Petitioner’s attempt to appeal the

22

Superior Court’s denial of his second motion to modify his sentence, finding the

23

order was not appealable and dismissing the appeal. [Lod. No. 15.]

24

On April 25, 2016, Petitioner filed a habeas petition in the California

25

Supreme Court, raising the same claims that he raised in the habeas petitions

26

filed in the lower state courts. [Lod. No. 13.] Thereafter, on May 10, 2016,

27

Petitioner also filed a petition for review with the California Supreme Court,

28

raising identical claims. [Lod. No. 14.] The California Supreme Court denied the
3
16CV1803-AJB(JMA)

1

petition for review on June 15, 2016, and on June 22, 2016, it denied the habeas

2

petition, without comment or citation to authority. [Lod. Nos. 15 & 16.]

3

On July 6, 2016, Petitioner constructively filed the present Petition, raising

4

the same claims that he raised in his state habeas petitions.1

5

II.

Discussion

6

The AEDPA’s one-year statute of limitations applies to Petitioner’s federal

7

habeas corpus claims. Calderon v. U.S. District Court (Beeler), 128 F.3d 1283,

8

1286-87 (9th Cir. 1997), as amended on denial of rhg. and rhg. en banc, cert.

9

denied, 522 U.S. 1099 (1998), overruled on other grounds in Calderon v. U.S.

10

District Court, 163 F.3d 530 (9th Cir. 1998), cert. denied, 523 U.S. 1063 (1999).

11

Pursuant to 28 U.S.C. § 2244(d)(1):

12

A 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period shall run from the
latest of --

13
14
15

(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking
such review;

16
17
18

(B) the date on which the impediment to filing an
application created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was prevented
from filing by such State action;

19
20
21

(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable
to cases on collateral review; or

22
23
24

(D) the date on which the factual predicate of the claim or

25
26
27
28

See Anthony v. Cambra, 236 F.3d 568, 574-75 (9th Cir. 2000) (applying “mailbox rule” which
provides for the constructive filing of court documents as of the date they are submitted to
prison authorities for mailing to the court).
1

4
16CV1803-AJB(JMA)

1
2

claims presented could have been discovered through the exercise of
due diligence.

3

28 U.S.C. § 2244(d)(1)(A)-(D). Here, pursuant to 28 U.S.C. § 2244(d)(1)(A), the

4

conclusion of direct review of Petitioner’s conviction occurred on August 12,

5

2008, ninety (90) days after the California Supreme Court denied Petitioner’s

6

petition for review on May 14, 2008. See Rule 13(1), U.S. Sup. Ct. Rules; Bowen

7

v. Roe, 188 F.3d 1157, 1159-60 (9th Cir. 1999). Accordingly, absent any

8

applicable tolling, Petitioner had until August 13, 2009 to file his federal habeas

9

petition. Id.; Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Because

10

Petitioner did not constructively file his federal habeas petition until July 6, 2016,

11

it is untimely unless Petitioner is entitled to statutory or equitable tolling. He

12

contends equitable tolling is warranted based on his mental health status and

13

requests an evidentiary hearing. [Doc. No. 15, p. 5.]

14

Equitable Tolling

15

The one year statute of limitations for filing a federal habeas petition may

16

be equitably tolled if extraordinary circumstances beyond a prisoner’s control

17

prevent the prisoner from filing on time. See Holland v. Florida, 560 U.S. 631,

18

645 (2010). A petitioner seeking equitable tolling must establish two elements:

19

“(1) that he has been pursuing his rights diligently, and (2) that some

20

extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S.

21

408, 418 (2005). The diligence required is “reasonable diligence,” not “maximum

22

feasible diligence.” See Holland, 560 U.S. at 653; see also Bills v. Clark, 628

23

F.3d 1092, 1096 (9th Cir. 2010).

24
25
26
27

The Ninth Circuit has articulated a specific, two-part test for an equitable
tolling claim based on a petitioner’s 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

28
5
16CV1803-AJB(JMA)

1
2
3
4
5
6
7
8
9

(a) petitioner was unable to 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 1099-1100; see also Orthel v. Yates, 795 F.3d 935, 938 (9th

10

Cir. 2015) (“A petitioner seeking equitable tolling on the grounds of mental

11

incompetence must show extraordinary circumstances, such as an inability to

12

rationally or factually personally understand the need to timely file, or a mental

13

state rendering an inability personally to prepare a habeas petition and effectuate

14

its filing.”).

15

A petitioner alleging a severe mental impairment during the filing period is

16

not entitled to an evidentiary hearing unless he or she makes “a good faith

17

allegation that would, if true, entitle him to equitable tolling.” Laws v. Lamarque,

18

351 F.3d 919, 921 (9th Cir. 2003) (remanding for consideration of whether the

19

petitioner's delayed filing was “attributable to psychiatric medication which

20

deprived Petitioner of any kind of consciousness” where the petitioner had

21

demonstrated “evidence of serious mental illness” by attaching prison psychiatric

22

and medical records); Bills, 628 F.3d at 1099-100 (remanding where the

23

petitioner was in the lowest percentile for verbal IQ, verbal comprehension and

24

working memory, and, according to clinical psychologists, was incapable of

25

inferential thinking necessary to complete a federal habeas form); see also

26

Orthel, 795 F.3d at 939-40 (“Where the record is amply developed, and where it

27

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

28

cause the untimely filing of his habeas petition, a district court is not obligated to
6
16CV1803-AJB(JMA)

1

hold evidentiary hearings to further develop the factual record, notwithstanding a

2

petitioner's allegations of mental incompetence.”) (quoting Roberts v. Marshall,

3

627 F.3d 768, 773 (9th Cir. 2010).)

4

Here, Petitioner alleges he has been under the care of the prison mental

5

health system for a “major mental illness” since November 2004. [Doc. No. 15,

6

pp. 1-2. He reports his diagnosis is Bipolar/Mood Disorder and Major Depression

7

and during this time he has taken Zyprexa 15 mg, Depakote 1500 mg, Buspar 30

8

mg, Cogentin 2 mg, Lamictal 50 mg, Vistaril 100 mg, and Propranolon 10 mg. [Id.

9

at 2.] He states his “mental illness coupled with the medications and there

10

affects” created an “extraordinary circumstance” that made it “physically

11

impossible” for Petitioner to pursue his claims in the judicial system. [Id.] He

12

further represents his medications “have changed throughout the years causing

13

at times “additional obstructions” due to side effects that “at times” have been

14

suicidal thoughts and a deeper depression causing crisis bed observations and

15

mental health transfers.” [Id.] Petitioner’s claims are supported by the declaration

16

of Christopher Griffith, a self-described “jailhouse lawyer,” who states he believes

17

Petitioner’s mental health circumstances prevented him from filing a federal

18

habeas petition. [Id. at 6-7.] Petitioner has also provided what appears to be a

19

portion of his declaration, in which he represents his medications have played a

20

“major part” in preventing him from pursuing federal habeas relief.2 [Id. at 8.]

21

Petitioner has provided some medical records to support his assertion. [Doc. No.

22

15, Exs. A-E and Doc. No. 16, Ex. F.]

23

//

24
25
26
27
28

The Court’s record contains what appears to be only the final page Petitioner’s declaration,
dated January 11, 2017. Petitioner’s declaration, as it appears in the Court’s record is one
page in length, beginning with paragraph 9, creating the impression that Petitioner may have
intended for another page or pages to have preceded it. If Petitioner’s declaration, as it
currently appears in the record, is incomplete, Petitioner may refile a full and complete version
of his declaration, along with the supplemental briefing the Court requests herein.
2

7
16CV1803-AJB(JMA)

1

Although these records indicate Petitioner has a long history of mental

2

illness, the record is sparse with respect to his mental state during the AEDPA

3

limitations period. He indicates his medications have changed over time and his

4

mental condition has fluctuated “at times” as a result, but does not provide any

5

detail as to which specific medication(s) impaired his ability to file his federal

6

habeas petition, how the medication(s) impaired him, or when he took the

7

medication(s).

8
9

Nearly all of the records Petitioner has provided relate to his mental health
condition before the California Supreme Court denied his first petition for review

10

on May 14, 2008 [See e.g. Doc. No. 15, Exs. A-B and Doc. No. 16, Ex. F] or after

11

he filed his federal habeas petition on July 6, 2016 [See e.g. Doc. No. 15, Ex. E]

12

and, thus, do not provide information regarding the nature and severity of

13

Petitioner’s alleged mental impairments during the time period for which

14

Petitioner must establish he is entitled to equitable tolling (May 15, 2008 to July

15

6, 2016). The only records that shed any light on Petitioner’s mental health

16

condition during this relevant time period relate to treatment he received at John

17

D. Klarich Memorial Hospital from August 7 to October 6, 2010 [Id., Ex. C], and

18

from the Vacaville Psychiatric Program from October 7 – December 2, 2010 [Id.,

19

Ex. D]. It appears, however, additional mental health records may exist for the

20

relevant time period, as Petitioner represents the exhibits are “only a portion of

21

the record.” [Id. p. 2.]

22

Although Petitioner has not met his burden under Bills, given the state of

23

the record, further development of the record is needed. See e.g., Chick v.

24

Chevaz, 518 Fed. Appx. 567, 569 (9th Cir. 2013) (remanding for further

25

development of the record where the existing record indicated the petitioner had

26

some degree of mental impairment, but did not conclusively indicate the severity

27

during the time period for which equitable tolling was sought.) Petitioner, thus, is

28

//
8
16CV1803-AJB(JMA)

1

granted the opportunity to provide additional briefing and evidence in support of

2

his equitable tolling claim.

3

III.

4

Conclusion
Based on the foregoing, Petitioner is directed to file a supplemental brief,

5

signed under penalty of perjury, addressing his allegations that his mental health

6

and medications interfered with his ability to pursue federal habeas relief.

7

Petitioner should explain when (start and end dates) he took each medication he

8

contends impaired his ability to file his federal habeas petition, explain what side

9

effect(s) of the medication(s) interfered with his ability to file a federal habeas

10

brief, and identify what period(s) of time he was unable to file his federal habeas

11

petition as a result of these side effects. Petitioner is encouraged to attach any

12

additional medical records he may have in support of his claims, including copies

13

of his prescriptions or progress notes prepared by medical staff. Specifically,

14

Petitioner should submit any documents that would support his claim that (1) he

15

suffered from the effects of a serious mental illness during the AEDPA limitations

16

period; (2) he took medications during this time period, and (3) the medications

17

and related side effects interfered with his thought process so severely that it

18

caused the untimely filing of his federal habeas petition.

19

Petitioner’s supplemental brief and any supporting documentation shall be

20

filed no later than June 13, 2017. Respondent shall file a brief in reply to

21

Petitioner’s supplemental brief no later than June 23, 2017.

22

Dated: May 23, 2017

23
24
25
26
27
28
9
16CV1803-AJB(JMA)