Taylor v. McDaniel et al

Filing 76

ORDER granting 66 Motion to Dismiss. Petition dismissed as untimely. Certificate of appealability is GRANTED on the issue of whether petitioner is entitled to equitable tolling of the statute of limitations. Clerk shall enter judgment accordingly and close case. Signed by Judge Robert C. Jones on 3/9/16. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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OMAR TERRELL TAYLOR,

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Case No. 3:08-cv-00401-RCJ-VPC
Petitioner,

ORDER

v.
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E.K. MCDANIEL, et al.,
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Respondents.
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This habeas matter under 28 U.S.C. § 2254 comes before the court on

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respondents’ motion to dismiss petitioner Omar Terrell Taylor’s counseled first amended

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petition as untimely (ECF No. 66). Taylor opposed (ECF No. 71), and respondents

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replied (ECF No. 73). As discussed below, this petition must be dismissed as untimely.
I.

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Background

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On June 17, 1997, Taylor pleaded guilty pursuant to North Carolina v. Alford, 400

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U.S. 25 (1970) in a written plea agreement to count I: first-degree murder and count II:

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manslaughter (first amended petition, exhibit 9).1 The state district court sentenced him

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to a term of life with the possibility of parole and a concurrent term of twenty-six to one

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hundred twenty months, and judgment of conviction was entered on September 2,

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1997. Exh. 10.

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Taylor did not file a direct appeal. Over six years later, on November 3, 2003, he

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filed his first state postconviction petition. Exh. 15. On August 19, 2004, the Nevada

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Unless otherwise noted, exhibits referenced in this order are exhibits to petitioner’s first amended
petition (ECF No. 12) and opposition to first motion to dismiss (ECF No. 32) and are found at ECF Nos.
13, 33-41, and 61.

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Supreme Court affirmed the denial of the petition, and remittitur issued on September
14, 2004. Exhs. 21, 23. On July 18, 2007, Taylor filed his second state postconviction
petition. Exh. 25. On April 18, 2008, the Nevada Supreme Court affirmed the denial of
the petition, and remittitur issued on May 13, 2008. Exhs. 34, 36.
Taylor dispatched his federal habeas petition for mailing on July 14, 2008 (ECF No.
6). This court appointed counsel, and counsel filed a first amended petition on July 31,
2009 (ECF No. 12). Respondents have moved to dismiss the petition as time-barred
(ECF No. 66).
II.

Legal Standards

The Antiterrorism and Effective Death Penalty Act (AEDPA) went into effect on April
24, 1996 and imposes a one-year statute of limitations on the filing of federal habeas
corpus petitions. 28 U.S.C. § 2244(d). The one-year time limitation can run from the
date on which a petitioner’s judgment became final by conclusion of direct review, or the
expiration of the time for seeking direct review. 28 U.S.C. § 2244(d)(1)(A). Further, a
properly filed petition for state postconviction relief can toll the period of limitations. 28
U.S.C. § 2244(d)(2).
A petitioner may be entitled to equitable tolling if he can show “‘(1) that he has been
pursuing his right diligently, and that (2) some extraordinary circumstance stood in his
way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2009)(quoting
prior authority). Equitable tolling is “unavailable in most cases,” Miles v. Prunty, 187
F.3d 1104, 1107 (9th Cir. 1999) and “the threshold necessary to trigger equitable tolling
is very high, lest the exceptions swallow the rule,” Miranda v. Castro, 292 F.3d 1063,
1066 (9th Cir. 2002) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.
2000)).

The petitioner ultimately has the burden of proof on this “extraordinary

exclusion.” 292 F.3d at 1065. He accordingly must demonstrate a causal relationship
between the extraordinary circumstance and the lateness of his filing. E.g., Spitsyn v.
Moore, 345 F.3d 796, 799 (9th Cir. 2003).

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Ignorance of the one-year statute of limitations does not constitute an extraordinary
circumstance that prevents a prisoner from making a timely filing. See Rasberry v.
Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“a pro se petitioner’s lack of legal
sophistication is not, by itself, an extraordinary circumstance warranting equitable
tolling”).
With respect to equitable tolling due to mental impairment, the Ninth Circuit has set
forth a two-part test:

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

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(b) petitioner’s mental state rendered him unable to personally
prepare a habeas petition and effectuate its filing.
(2) Second, the petitioner must show diligence in pursuing the claims
to the extent that 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 v. Clark, 628 F.3d at 1099-1100 (9th Cir. 2010) (emphasis in original)(footnotes
omitted); see also id. at 1100-01.
In Forbess v. Franke, the Ninth Circuit concluded that a petitioner had demonstrated
that his severe and unique mental illness made it impossible for him to timely file his
federal petition. 749 F.3d 837, 841-842 (9th Cir. 2014). There, the court agreed with the
district court that Forbess satisfied the first Bills prong because he showed that his
mental illness was “so severe that [he was] unable . . . to understand the need to timely
file.” Bills, 628 F.3d at 1093. The Ninth Circuit observed that the record demonstrated
Forbess’s extensive history of severe mental illness and recounted the following
findings of fact:
Petitioner believed he was working undercover for the FBI, and his trial
was a “sham” orchestrated to lure his ex-wife out of hiding and arrest her
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for being part of an extensive drug distribution operation. Petitioner's claim
that his delusions persisted from the time of his trial to the expiration of the
limitations period is supported by the psychological evaluations of Dr.
Fickle, Dr. McDonald, and Dr. Melnick, and by the mental health records.
During the relevant time period, Petitioner genuinely believed the FBI
would release him once they arrested his ex-wife. As such, he was
incapable of rationally understanding the necessity of filing a timely
habeas petition.

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Forbess, 749 F.3d at 840. Compare Orthel v. Yates, 795 F.3d 935, 939 (9th Cir.

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2015) (“Although Orthel grappled periodically with significant mental health issues

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during his incarceration, the voluminous medical and prison records show it was not

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unreasonable for the district court to determine that Orthel was capable of

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understanding the need to timely file and effectuating a filing . . . . the entire eleven-year

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period (between the date on which the statute of limitations began to run and the date

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on which Orthel filed his petition) contained significant spans of time in which Orthel

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participated productively in [correspondence courses and prison programming]”).

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III.

Instant Petition

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Taylor sets forth three grounds for relief in the amended petition. He contends that

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(1) his trial counsel rendered ineffective assistance in violation of his Sixth and

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Fourteenth Amendment rights because they failed to adequately investigate his case

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and prepare a defense; (2) he did not enter his Alford plea knowingly, intelligently, or

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voluntarily in violation of his Fifth and Fourteenth Amendment rights to due process

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because he did not understand the consequences of his plea and he was under the

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influence of medication; and (3) trial counsel rendered ineffective assistance in violation

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of his Sixth and Fourteenth rights when they induced Taylor to enter a plea that was not

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knowing, voluntary and intelligent (ECF No. 12, pp. 5-10).

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The parties do not dispute that the AEDPA one-year statute of limitations expired

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nearly six years before Taylor filed his first state postconviction petition, which was the

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first action he took in his case after the entry of the judgment of conviction (ECF Nos.

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12, 66, 71).2 Taylor did not submit his federal petition for filing until July 14, 2008 (ECF
No. 6).

equitable tolling of the statute of limitations.

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Taylor argues that he is entitled to equitable tolling of all of the time from his
judgment of conviction up until he filed his initial federal petition in this case (ECF No.
71, pp. 4-17; see also ECF No. 32). Thus, the time period at issue is from about
October 1997 to July 2008. Taylor relies heavily on a neuropsychological assessment
that Dr. David Schmidt completed in February 2010. Exh. 41. Schmidt concluded that
Taylor’s chronic schizophrenia and cognitive impairments have negatively affected his
functioning and problem-solving abilities. Schmidt stated that the two disorders “have
made and continue to make it very difficult for [Taylor] to understand or weigh the
importance of any deadlines or legal factors in his case.” Id. at 17. Schmidt also stated
that “Had [Taylor’s] symptoms been better controlled, his thinking would have been
clearer and more logical. The failure to recognize and appropriately treat his continuing
psychological problems made it all but impossible for him to take the appropriate steps
to file and follow through with his appeal.” Id.

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This federal petition is, therefore, time-barred, unless Taylor is entitled to

Taylor provides over one thousand pages of his Nevada Department of Corrections
medical records. Exh. 40. 3 They reflect that he suffers from schizophrenia, auditory
hallucinations, depression and serious mood swings. On several occasions he was
placed in the mental health unit (MHU), and in some instances he was placed in MHU
seclusion (Exh. 40, ECF No. 33-2, p. 4-5: 9/19/97 placed in MHU seclusion for suicidal
thoughts; p. 11: 11/21/97 placed in MHU for protection of self/other inmates/staff; p. 16:
01/08/98 placed in MHU for suicide plans; p. 20: 02/10/98 placed in MHU seclusion

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Taylor filed a motion to discharge attorney of record on March 30, 2001 and a motion for transcripts at
state expense on May 5, 2003 before he filed his first state postconviction petition on November 3, 2003.
Exhs. 11, 12, 15.
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The court notes that the manner in which Exhibit 40 was filed and cited to by petitioner made it onerous
and time-consuming to locate the citations within already difficult to decipher medical records.
Voluminous records should be divided into separate exhibits, each with its own distinct exhibit number
and pagination in order to facilitate review. The court includes both the exhibit number and ECF number
in this order.

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because he reported hearing voices telling him to kill himself; Exh. 40-1, ECF No. 34, p.
4: 09/04/98 admitted to MHU as a threat to self; p. 21 07/20/99 placed in MHU as
suicide risk; Exh. 40-C, ECF No. 34-2, p. 10: 06/2000 moved back to MHU for chronic
mood swings; Exh 40, Pt. 1-D, ECF No. 35, pp. 132, 136: 09/02 placed in MHU strip cell
for reported overdose; Exh. 40, Pt. 1-F, ECF NO. 36, p. 181: 11/06 placed in MHU for
suicide attempt). He attempted suicide on three occasions, in 2001, 2002 and 2006
(ECF No. 32, p. 5; see, e.g., Exh. 40, Pt. 1-D, ECF No. 35, p. 110, 132, 136; Exh. 40,
Pt. 1-F, ECF No. 36, p. 181).
NDOC medical personnel have treated Taylor with many different medications and
in different combinations and dosages. See generally Exh. 40; see also Exh. 41, pp. 710. He has had difficulty with medication compliance. See, e.g., Exh. 40-1, ECF No.
34, p. 39; Exh. 40, Pt. C, ECF No. 34-2, p. 6; Exh. 40-1E, ECF No. 35-2, p.158.
The records also reflect that Taylor took the GED exam and failed by one point (Exh.
40-1, ECF No. 34, pp. 7-9), he worked as a porter (id. at 3), as a yard laborer (id. at 5;
Exh. 40, Pt. 1-E, p. 151-155), and in culinary (Exh. 40, Pt. 1-E, p. 166). Particularly
after the first couple of years of his incarceration, the records suggest that Taylor
became more stable overall. Throughout his incarceration, he has reported some mood
swings and occasions where he heard voices. At the same time, Taylor was regularly
oriented to time and place.

He discussed with medical staff fairly sophisticated

treatment plans, such as the fact that he used physical exercise including lifting weights
and playing handball to help deal with his anger, that he was learning to identify the
feelings leading up to outbursts of anger and to identify outside stressors, avoiding yard
drugs and gang activity, and nutrition strategies to aid weight loss. Exh. 40-1, ECF No.
34, pp. 13-16. See also Exh. 40, ECF No. 33-2, pp. 8-10, 12, 22; Exh. 40-1, ECF No.
34, pp. 6-7, 42; Exh. 40-1E, ECF No. 35-2, pp. 151-155. One medical provider opined
that Taylor has a great sense of humor and should use it more. Exh. 40-1E, ECF No.
35-2, p. 169. Taylor has told medical staff of his plans for when he is released and has

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discussed rehearsing appropriate ways to respond if he is provoked by another inmate
or staff. Id. Taylor has indicated that he does not know how to express his feelings and
shared his fear that doing so would make him appear weak and easy to take advantage
of.

Exh. 40-1, ECF No. 34, p. 13.
A recurrent theme in his NDOC records is that medical staff observes that Taylor

suffers from real mental illness, but is also manipulative and attention-seeking and
frequently seems much more depressed around health professionals than with his
peers. Exh. 40, ECF No. 33-2, pp. 4-5, 13-15; Exh. 40-1, ECF No. 34, pp. 9, 12, 29;
Exh. 40, Pt. C, ECF No. 34-2, p. 11; Exh. 40-1E, ECF No. 35-2, pp. 147, 165. Taylor
also told medical providers after one purported suicide attempt that he was “just pissed
that he [had been] moved.” Exh. 40, p. 11. He told medical personnel at times that he
wanted to be placed in MHU or the extended care unit (ECU) not for mental health
considerations but to avoid gang activity. Exh. 40-1E, ECF No. 35-2, p. 146; see also
Exh. 40, ECF No. 33-2, pp. 4-5; Exh. 40-1, ECF No. 34, p. 21.
Taylor indicated that he refused his medication at times because of the attendant
weight gain. Other times he explained that he is a “shot caller” on the yard and did not
take his medications on days he went out on the yard out of concern about the stigma of
being on psychiatric medications. Exh. 40-1E, ECF No. 35—2, pp. 166, 179.
Finally, his medical records also indicate that Taylor at times referenced the status of
his own legal proceedings or reflected an awareness of legal remedies in general. Exh.
40, ECF No. 33-2, pp. 10, 29, 33, 35, 41; Exh. 40-1, ECF No. 34, pp. 9, 31, 41, 42; Exh.
40-1E, pp. 151-155, 169.
The court has carefully reviewed all the briefing as well as the medical records in this
case. The record reflects that petitioner has significant mental health issues and has
been on extensive regimens of medications throughout his incarceration with the
NDOC. However, nothing in the records provided—aside from Schmidt’s conclusions
when he assessed Taylor in 2010--demonstrates that Taylor’s mental impairment was

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so severe that he was unable to rationally or factually understand the need to timely file,
or unable to personally prepare and file a habeas petition and that it caused it to be
impossible for him to meet the filing deadline. And, in fact, Taylor’s progress notes tend
to reflect that, while suffering mental illness, he was generally not incapacitated or
incapable of functioning in daily life.4 The balance of the record indicates that Taylor’s
situation more closely resembles that of the petitioner in Orthel and differs significantly
from Forbess, where that petitioner labored under severe and persistent delusions that
he was working undercover for the FBI.

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The court further notes that Taylor filed two state postconviction habeas petitions. In
the first state petition, he did ask that counsel be appointed because he was on
psychotropic medications and had trouble concentrating. Exh. 15. While the petition
was untimely and not a model of clarity, Taylor set forth discernible claims—mainly that
his sentence is illegal because he did not commit premeditated murder and that his plea
counsel was ineffective for failing to move to withdraw the guilty plea. Id. The Nevada
Supreme Court denied the petition, and remittitur issued on September 14, 2004. Exhs.
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postconviction petition claiming ineffective assistance of plea counsel.

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Exh. 25.

Thereafter, he initiated these federal proceedings in July 2008.

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Nearly three years later, on July 18, 2007, Taylor filed his second state

The court concludes that petitioner has not met his burden to demonstrate that
extraordinary circumstances beyond his control–that either he was unable rationally or
factually to personally understand the need to timely file, or his mental state rendered
him unable to personally prepare a habeas petition and effectuate its filing–and that he
diligently pursued the claims to the extent that he could understand them, but that the
mental impairment made it impossible to meet the filing deadline under the totality of the

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Additionally, while not dispositive, the court notes that two defense experts evaluated Taylor prior to the
entry of his plea and determined that he was competent to stand trial and aid in his own defense. Exhs.
38, 39.

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circumstances. Accordingly, petitioner has not met his burden under the two-part test
laid out in Bills. Taylor’s petition shall be dismissed as time-barred.
IV.

Certificate of Appealability

In order to proceed with an appeal, petitioner must receive a certificate of
appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v.
Ornoski, 435 F.3d 946, 950-51 (9th Cir. 2006); see also United States v. Mikels, 236
F.3d 550, 551-52 (9th Cir. 2001). Generally, a petitioner must make “a substantial
showing of the denial of a constitutional right” to warrant a certificate of appealability.
Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). “The
petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Id. (quoting Slack, 529
U.S. at 484). In order to meet this threshold inquiry, the petitioner has the burden of
demonstrating that the issues are debatable among jurists of reason; that a court could
resolve the issues differently; or that the questions are adequate to deserve
encouragement to proceed further. Id. Pursuant to Rule 11(a) of the Rules Governing
Section 2254 and 2255 Cases, district courts are required to rule on the certificate of
appealability in the order disposing of a proceeding adversely to the petitioner or
movant, rather than waiting for a notice of appeal and request for certificate of
appealability to be filed. This court has considered the issues raised by petitioner, with
respect to whether they satisfy the standard for issuance of a certificate of appealability,
and determines that the question of whether petitioner is entitled to equitable tolling of
the statute of limitations due to petitioner’s mental health issues meets the standard.
The court will therefore grant petitioner a certificate of appealability on that issue.

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IT IS THEREFORE ORDERED that respondents’ motion to dismiss the first
amended petition (ECF No. 66) is GRANTED. The petition is DISMISSED as untimely.
IT IS FURTHER ORDERED that a certificate of appealability is GRANTED on
the issue of whether petitioner is entitled to equitable tolling of the statute of limitations.
IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and
close this case.

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DATED: 9 March 2016.

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ROBERT C. JONES
UNITED STATES DISTRICT JUDGE

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