Kitchen #583372 v. Bauman

Filing 6

ORDER ADOPTING REPORT AND RECOMMENDATION 3 ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
JAMES EDWARD KITCHEN,
Petitioner,

Case No. 2:14-cv-76
HON. R. ALLAN EDGAR

v.
CATHERINE S. BAUMAN,
Respondent.
_______________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION
The Court has before it Petitioner’s Objection to the Report and Recommendation dated
May 6, 2014, in which Magistrate Judge Timothy P. Greeley recommended that Petitioner’s
petition for writ of habeas corpus be denied because it is barred by the one-year statute of
limitations. (Docket #3.) Petitioner now contends that he is entitled to equitable tolling of the
one-year statute of limitations because his mental illness prevented him from filing the habeas
petition in a timely manner. The Petitioner agrees that the petition was filed past the one-year
statute of limitations, so the Court will adopt that portion of the Report and Recommendation
that addresses the Petitioner’s failure to meet the one-year deadline. Because the Petitioner
argues equitable tolling for the first time in his Objection, this Court will address the equitable
tolling issue. The Court concludes that Petitioner has failed to show that Petitioner was
incompetent during the time-period at issue.
Petitioner agrees that his petition is time barred by the Antiterrorism and Effective Death
Penatly Act of 1996 (AEDPA), but argues that the extraordinary circumstance of being mentally
incompetent equitably tolls AEDPA’s one-year statute of limitations. See Ata v. Scott, 662 F.3d
736, 741–42 (6th Cir. 2011) (adopting the reasoning and standard in McSwain v. Davis, 287 Fed.
App’x 450, 456 (6th Cir. 2008)). Courts must decide equitable tolling on a “case-by-case basis”
and apply it “sparingly.” Ata, 662 F.3d at 741. The petitioner bears the ultimate burden of
persuading the Court that he is entitled to equitable tolling based on mental incompetency. Id.;

Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002). In order to obtain equitable tolling, a
petitioner must demonstrate that he is mentally incompetent and that his mental incompetency
actually prevents him from complying with AEDPA’s timing requirements. Ata, 662 F.3d at 742.
To toll ADEPA’s statute of limitations, Petitioner must show “a causal link between the mental
condition and untimely filling” requirement. Id.
The sole issue for this Court is whether Petitioner sufficiently alleged he was mentally
incompetent and that his incompetence prevented him from timely filing a habeas petition.
Petitioner states that he is mentally incompetent because he was declared incompetent to stand
trial, sent to a treatment center for fourteen-and-a-half months, diagnosed with Paranoid
Delusional Disorder, Anxiety Disorder, and Hyperthyroidism and prescribed multiple
medications. (Docket # 4, at 4; Exh. J, K.) According to the Psychiatric Discharge Summary,
written by Dr. Patricia Campbell, Petitioner was declared competent to stand trial, but “[i]n order
to maintain competency, he will need to stay on the Risperdal and Clonopin.” (Exh. J.)
Here, there is no specific allegation or documentation that Petitioner stopped taking these
medications. The closest Petitioner gets to alleging that Petitioner stopped taking his medication
occurs in a footnote in Petitioner’s brief: “Defense Counsel made a request for the Petitioner’s
psychological records from the Michigan Department of Corrections and learned that the
Petitioner has not received any treatment or psychotropic medication for his condition since
2005.” (Docket #4 at 13, fn. 2.) However, there are no medical records attached verifying this
claim or an affidavit from Petitioner’s counsel stating how he learned about petitioner’s failure to
receive medical treatment. Making this issue more problematic is that Petitioner’s brief also
states that “[n]ot only was he held incompetent for fourteen-and-a-half months before his trial,
his treatment has continued for his mental illness until now.” (Docket #4 at 15.)
This Petitioner is unlike the Petitioner in Ata who included medical documents reflecting
a history of mental illness, numerous hospitalizations prior to arrest, a diagnosis of paranoid
schizophrenia, and other documents showing that he was delusional and paranoid at the time
relevant to tolling. 662 F.3d at 737–38. Here, the medical documents show that Petitioner was
competent to stand trial as long as he was taking Risperdal and Clonopin. Petitioner gives the
Court mixed messages about Petitioner’s treatment, including mixed assertions about his
treatment. In order to overcome the burden and medical evidence, Petitioner needs to allege
something more specific.
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Although it is unnecessary to address the causal link between mental incompetency and
the inability to file the petition, the problems with unspecific allegations in this context illustrate
the difficulty presented when attempting to evaluate the causal link. The court is unable to
compare the competency of the Petitioner with the time period tolling could have taken place.
Without a more specific allegations Petitioner is unable to persuade this Court that he has met his
burden.
Petitioner requests an evidentiary hearing to determine whether or not Petitioner can toll
the statute of limitations. “Although an evidentiary hearing need not be provided as a matter of
right, an evidentiary hearing is required when sufficiently specific allegations would entitle the
petitioner to equitable tolling on the basis of mental incompetence which caused the failure to
timely file.” Id. at 742. Because this Court has determined that Petitioner has failed to allege
mental competency with specificity and provides contradictory statements about Petitioner’s
medical treatment an evidentiary hearing is unnecessary.
Finally, Petitioner requests that this Court issue a certificate of appealability (COA) if it
enters a final order adverse to the Petitioner. Under AEDPA petitioner must make a substantial
showing of the denial of a constitutional right in order for the Court to issue a COA. Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000). However, Slack’s standard for issuing a COA dealt
with denials on the merits of the constitutional claims, not tolling based on mental incompetence.
Nonetheless, this Court will issue a COA on the issue of tolling based on mental incompetence.
For the above stated reasons, IT IS ORDERED that the portion of the Magistrate
Judge’s Report and Recommendation dated May 6, 2014 (Docket #3) that the petitioner failed to
meet the one-year deadline is APPROVED AND ADOPTED as the Opinion of this Court.
IT IS ORDERED that the habeas corpus petition be DENIED because it is barred by the
one-year statute of limitations and does not toll the one-year time limit. (Docket #1.)
IT IS FURTHER ORDERED that a certificate of appealability is GRANTED.
A judgment consistent with this Order will be entered.
SO ORDERED.

Dated:

8/1/2014

/s/ R. Allan Edgar
R. Allan Edgar
United States District Court Judge
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