Dennis v. Franke
Filing
51
OPINION AND ORDER.The Court DENIES the Amended Petition for Writ of Habeas Corpus and DISMISSES this action. Because Petitioner has not made a substantial showing of the denial of a constitutional right, the Court DENIES a certificate of appealability. See 28 U.S.C. § 2253 (c) (2). Signed on 10/28/2014 by Judge Anna J. Brown. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
RONALD ALLEN DENNIS, SR.,
Civil No. 2:11-cv-01512-BR
Petitioner,
OPINION AND ORDER
v.
STEVE FRANKE,
Respondent.
THOMAS J. HESTER
Assistant Federal Public Defender
101 SW Main Street
Suite 1700
Portland, OR 97204
Attorney for Petitioner
ELLEN F. ROSENBLUM
Attorney General
NICHOLAS M. KALLSTROM
Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, OR 97301
Attorneys for Respondent
1 - OPINION AND ORDER -
BROWN, Judge.
Petitioner,
Institution,
an
inmate
brings
U.S.C. § 2254.
this
at
the
habeas
Two
corpus
Rivers
action
Correctional
pursuant
to
28
For the reasons that follow, the Court DENIES the
Amended Petition for Writ of Habeas Corpus (#12).
BACKGROUND
On January 5,
2006,
a Tillamook County grand jury indicted
Petitioner on five counts of Sodomy in the First Degree,
four
counts of Sodomy in the Second Degree, two counts of Sexual Abuse
in the First Degree, one count of Using a Child in a Display of
Sexually Explicit Conduct, and one count of Sexual Assault of an
Animal.
Pet.
Exh.
1.
represent Petitioner.
Attorney Alex Hamalian was appointed to
Resp. Exh. 102, p. 4.
At the request of Petitioner's trial attorney,
on February
28, 2006, Dr. John Cochran completed a psychological evaluation of
Petitioner.
two
of
the
Pet. Exh. 5.
Dr. Cochran noted that the results of
psychological
tests
he
administered
indicated
Petitioner was exaggerating his symptoms in order to get immediate
attention and pity.
Pet.
Exh.
5,
p.
11.
Dr.
Cochran diagnosed
Petitioner with an adjustment disorder, alcohol abuse, pedophilia,
and a personality disorder with avoidant,
centered features.
Pet. Exh. 5, p. 16.
2 - OPINION AND ORDER -
immature,
and self-
On June 25, 2006, Dr. George Suckow evaluated
Petitioner to
determine whether he could aid and assist at trial.
Pet. Exh. 6.
Dr. Suckow summarized the results of his evaluation:
In my opinion,
[Petitioner]
is competent to
participate in his own defense.
He can cooperate with
counsel, has the basic ability to understand the role of
the participants in a courtroom, and can discuss recent
and past events.
There is a tendency on his part to
demonstrate self-serving memory losses for the events of
the charges but he is able to 'aid and assist in his own
defense.
It is my further opinion that there is no
indication that he has a major mental disease or defect
which would have substantially impaired his ability to
appreciate the criminality of his conduct or to
understand the requirements of the law.
Pet. Exh. 6, p. 1.
On September 5, 2006, Dr. Suckow evaluated Petitioner for a
second time.
Dr. Suckow,
Pet. Exh. 7.
inter alia,
During his interview Petitioner told
that he believed the year was 1971, did
not know his girlfriend (the mother of his victim), did not know
what a court is,
judge,
because
he
and could not tell
had never
Dr.
seen one.
Suckow the role of a
Pet.
Exh.
7,
p.
2-3.
Petitioner also claimed that he had seen "little green men about
three feet tall" come into his cell and plant a bug in his chest.
Pet.
Exh.
7,
p.
3.
Dr.
Suckow
concluded
his
evaluation
follows:
In summary, this is a young man who may be
malingering some or all of his symptoms [or] who also
may actually have a dissociative reaction.
3 - OPINION AND ORDER -
as
It is my recommendation that he be placed at the
Oregon State Hospital under ORS 161.730 for evaluation
and treatment until such time as he has regained the
capacity to aid and assist in his own defense.
In a
hospital setting it will be much easier to sort out what
is in fact a dissociative disorder based upon anxiety or
a malingered situation.
Pet. Exh.
7, p.
4.
On September 8,
2006,
the trial judge found
Petitioner was not fit to proceed and committed him to the Oregon
State Hospital for evaluation and treatment.
On
October
17,
2006,
Dr.
Christopher
Petitioner at the Oregon State Hospital.
Pet. Exh. 9.
Corbett
evaluated
Dr. Corbett interviewed
Petitioner, reviewed his progress notes, and administered several
psychological tests,
in one of which "every subscale
indicative of malingering."
Pet.
Exh.
10,
p.
4.
.
. was
Dr.
Corbett
summarized his evaluation as follows:
[Petitioner] said that he was very depressed and
told this examiner that he is too depressed and
traumatized to eat or sleep. The Oregon State Hospital
progress notes describe him as eating well with
appetite, gaining more than 10 pounds since admission
and displaying a positive affect with peers on the unit.
Staff have observed him regularly sleeping throughout
the night with little incident.
* * *
There has been no evidence
dissociative incident while at
Hospital.
or indication of a
[the] Oregon State
During the evaluation the [Petitioner] was able to
discuss recent living arrangements, activities, and
employment while providing his tor [ ical] information with
little apparent difficulty. When the questions began to
touch on legal issues, his reported knowledge of his
charges became vague and evasive, often reporting that
4 - OPINION AND ORDER -
he could not remember large parts of the last few years.
He told this evaluator that his memory difficulties have
been consistent over the last few years and that he had
a complete lack of knowledge and memory of the
incidences regarding his legal charges.
The police
report presents him as remembering specific incidences
and being able to provide reasonable timeframes without
apparent memory problems. The results of [Petitioner's]
evaluation are not consistent with the presenting
complaint or of any diagnosis accepted as a mental
disease or defect .
Pet .
Exh.
10,
pp .
4- 5 .
Dr .
Corbett diagnosed Petitioner with
pedophilia, alcohol abuse, and malingering.
Pet . Exh . 10 , p . 5.
He concluded Petitioner was able to aid and assist in his defense ,
and explained t hat "there was no indication of a mental disease or
defect that would interfere with the
[Petitioner's]
ability to
understand the nature of the proceedings against him, the ability
to
assist
and
cooperate
with
participate in his own defense."
On October 26 ,
2006 ,
counsel,
or
ability
to
Pet. Ex h. 10, p. 5.
Petitioner appeared before the trial
judge and entered a not guilty plea.
Resp . Exh. 102, p . 8.
case was set for a jury trial in February 2007.
p. 8.
the
The
Resp . Exh. 102 ,
On December 8, 2006 , Petitioner changed his plea , pleading
guilty to one count of Sodomy in the First Degree, two counts of
Attempted Sodomy in the First Degree, one count of Using a Child
in a Display of Sexually Explicit Conduct, and one count of Sexual
Assault of an animal.
Resp. Exh. 101.
The trial judge sentenced
Petitioner to a total of 190 months of imprisonment.
101.
5 - OPINION AND ORDER -
Resp . Exh.
Petitioner did not file a direct appeal or a petition for
state post-conviction
relief
( "PCR") .
On
December
14,
2011,
Petitioner filed a pro se Petition for Writ of Habeas Corpus in
this Court.
The Court appointed counsel, and on April 5, 2012,
Petitioner filed an Amended Petition for Writ of Habeas Corpus
alleging four claims for relief.
Respondent contends habeas corpus relief should be denied
because this action was not timely filed and because Petitioner
procedurally defaulted all of the claims for relief alleged in his
Amended Petition.
petition
within
Petitioner concedes he did not file his habeas
the
limitations
period,
but
argues
tolling should be applied to excuse his untimeliness.
equitable
Petitioner
also concedes he procedurally defaulted all claims for relief, but
argues
his
procedural
default
should
be
excused
because
his
attorney abandoned him.
DISCUSSION
I.
Timeliness
The Anti-Terrorism and Effective Death Penalty Act ("AEDPA")
imposes a one-year statute of limitations for filing a petition
for writ of habeas corpus under 28 U.S.C.
§
2244.
§
2254.
28 U.S.C.
The limitations period begins to run on the date the
conviction becomes
appeal process.
final,
28 U.S.C.
6 - OPINION AND ORDER -
i.e.,
§
the
completion
2244 (d) (1).
of
the
direct
The limitations period is subject to statutory tolling during
the pendency of properly filed
state post-conviction or other
collateral
28
state
proceedings.
u.s.c.
§
2244(d)(2).
The
limitations period may also be equitably tolled in appropriate
circumstances.
560 U.S. 631, 647
Holland v. Florida,
(2010).
A habeas petitioner "is 'entitled to equitable tolling' only
if he show$ '(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way' and
\
prevented timely filing."
v.
DiGuglielmo,
whether
544
equitable
Holland, 560 U.S. at 649 (quoting Pace
U.S.
408,
tolling
418
should
(2005)).
apply
should be made on a case-by-case basis.
is
The determination
fact-dependent
and
Bills v. Clark, 628 F.3d
1092, 1097 (9th Cir. 2010).
The threshold upon which a petitioner may obtain equitable
tolling is very high, "lest the exceptions swallow the rule."
Id.
at 1097,
(citing Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.
2002)).
"A petitioner seeking equitable tolling bears the burden
of showing both that there were extraordinary circumstances, and
that
the
extraordinary
untimeliness."
2010)
circumstances
Roberts v. Marshall,
were
7 - OPINION AND ORDER -
cause
627 F.3d 768, 772
(internal quotation marks omitted,
cert. denied, 132 S.Ct. 2 86 (2011).
the
of
his
(9th Cir.
emphasis in original),
Mental illness can constitute an "extraordinary circumstance"
entitling a petitioner to equitable tolling.
351
F.3d
919,
922-23
(9th
Cir.
2003).
Laws v.
The
Lamarque,
Ninth
Circuit
articulated a two-part test a petitioner must meet to show that a
mental
impairment
qualifies
him
for
equitable
tolling
of
the
limitations period:
(1) First, a petitioner must show his mental impairment
was an "extraordinary circumstance" beyond his control,
see Holland, 130 S.Ct. at 2562, 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
(b) petitioner's mental state rendered him unable
personally to prepare a habeas petition and effectuate
its filing. [Footnote omitted]
(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.
See id.
Bills,
628
F.3d
at
The
1100.
Bills
test
"reiterates
stringency of the overall equitable tolling test:
the
the mental
impairment must be so debilitating that it is the but-for cause of
the
delay,
and
even
in
cases
of
debilitating
petitioner must still demonstrate diligence."
Martel,
751 F.3d 1075,
1078
F.3d at 1100).
8 - OPINION AND ORDER -
(9th Circ.
2014)
impairment
the
Yow Ming Yeh
v.
(citing Bills, 628
In
general,
the
level
of mental
impairment
necessary
to
justify equitable tolling is limited to cases of "profound mental
incapacity."
364 F.3d 507, 513 (4th Cir.
United States v. Sosa,
2004); see also Grant v. McDonnell Douglas Corp., 163 F.3d 1136,
1138
(9th Cir.
1998)
(finding equitable
tolling
for
a
mental
condition appropriate "only in e x ceptional circumstances, such as
institutionalization
or
adjudged
mental
incompetence") .
For
e x ample, the Ninth Circuit found equitable tolling appropriate in
a case where the prisoner had "serious mental problems for many
years, " and suffered from a psychotic disorder accompanied by
delusions,
hallucinations,
inappropriate
withdrawal,
bizarreness,
incoherence.
Calderon v. U.S. Dist. Ct.
(Kelly
V),
163
F. 3d
530,
fragmentation
541-42
of
(9th
Cir.
thinking,
1998)
Garceau,
(2003); see also Calderon v. U.S. Dist. Ct.
(en
case,
bane),
202
for Centr. Dist. of
(describing Kelly's mental illness).
several prison psychiatrists evaluated Kelly,
them could ascertain that he was sane .
and
538 U.S.
(Kelly III), 127 F. 3d 78 2 , 788 n. 1 (9th Cir. 1997)
J., dissenting)
social
for Centr. Dist. of Cal
overruled on other grnds by Woodford v.
Cal.
affect,
(Tashima,
In the Kelly
and none of
Kelly III, 127 F.3d at 788
n. 1.
More recently, in Forbess v . Franke, 749 F.3d 837 (9th Cir.
2014),
the
Ninth
Circuit
9 - OPINION AND ORDER -
found
the
petitioner
entitled
to
equitable
working
tolling.
undercover
"There,
for
the
the
FBI,
petitioner
and
his
'believed
trial
was
he
a
was
'sham'
orchestrated to lure his ex - wife out of hiding and arrest her for
being part of an extensive drug distribution operation,' and the
'magistrate
judge
explicitly
found
that
Forbess's
delusions
persisted throughout the relevant [ limitations] period. '" Yow Ming
Yeh, 751 F.3d at 1078 (quoting Forbess, 743 F.3d at 840) .
With respect to the necessary diligence, "the petitioner must
diligently
seek assistance
and exploit
whatever
Bills, 628 F.3d at 1101.
reasonably available."
assistance
is
A petitioner may
satisfy the diligence prong if "the petitioner's mental impairment
prevented him from locating assistance or communicating with or
sufficiently supervising
Stated otherwise,
"the
any assistance
due
diligence
actually
prong of
found."
the
Id.
Bills test
requires a petitioner whose mental impairment is so severe that he
is unable understand the need to timely file or to file a petition
on his own to demonstrate that due to his mental impairment, he
also lacked ' the ability to understand the need for assistance,
the ability to secure it,
monitor
assistance
the
or the ability to cooperate with or
petitioner
does
secure
[t]he
petitioner therefore always remains accountable for diligence in
pursuing
his
or
her
rights. '"
James
3585941, *20 (C. D. Cal., Mar. 9, 2011)
10 - OPINION AND ORDER -
v.
Harrington,
2011
WL
(quoting Bills, 628 F. 3d at
1100).
The court must review "the totality of the circumstances"
to determine if the mental impairment was the "but-for cause of
any delay."
Bills, 628 F.3d at 1100.
Here, Petitioner argues he is entitled to equitable tolling
because,
despite his diligence in attempting to timely file his
habeas petition, he was thwarted by his mental health issues and
the conditions of his confinement,
which resulted in his being
medicated and segregated for his own protection.
In support of
the
psychological
this
argument,
Petitioner
relies
upon
evaluations performed before he pleaded guilty and upon a record
of his institutional programming while incarcerated.
The mental
health records
submitted by Petitioner do not
establish that he had a mental impairment before he entered his
guilty plea.
Moreover, although the programming record indicates
Petitioner participated in mental health programming and was at
times housed in the special management unit, it also indicates he
participated in religious services and held prison jobs.
Petitioner argues he was medicated,
mental health evidence thereof.
While
he presents no medical or
Petitioner has not established
his mental state rendered him unable to personally prepare and
effectuate the filing of a habeas petition within the limitations
period.
Petitioner further argues that he diligently sought to obtain
his file from his trial attorney and that his untimely filing was
11 - OPINION AND ORDER -
due to the attorney's refusal to provide him with records from his
case.
Petitioner has not, however, presented any evidence that he
attempted to obtain his file prior to filing a motion with the
trial court in August 2011, well after the limitation period had
expired.
Moreover ,
claims
this
in
the
habeas
facts
action
upon which
Petitioner bases his
were
to
known
him;
there
is
no
indication that the lack of the attorney records somehow precluded
him from initiating a habeas action .
Petitioner has not demonstrated extraordinary circumstances
to equitably toll the AEDPA one-year statute of limitations.
As
such, the action is untimely.
I I.
Procedural Default
A
habeas
petitioner
must
exhaust
his
claims
presenting them to the state's highest court,
by
fairly
either through a
direct appeal or collateral proceedings,
before a federal court
will consider the merits of those claims .
Rose v . Lundy, 455 U. S .
509, 519 (1982) .
"As a general rule, a petitioner satisfies the
exhaustion requirement by fairly presenting the federal claim to
the appropriate state courts .
state courts ,
thereby
. in the manner required by the
'affording the state courts a meaningful
opportunity to consider allegations of legal error . '"
Moore,
386 F . 3d 896,
Hillery,
915-916
474 U.S . 254, 257
(9th Cir . 2004)
(1986)).
Casey v .
(quoting Vasquez v.
If a habeas litigant failed
to present his claims to the state courts in a procedural context
12 - OPINION AND ORDER -
in which the merits of the claims were actually considered,
the
claims have not been fairly presented to the state courts and are
Edwards
therefore not eligible for federal habeas corpus review.
v. Carpenter, 529 U.S. 446,
u.s.
453
(2000); Castille v. Peoples,
489
346, 351 (1989).
A petitioner is deemed to have "procedurally defaulted" his
claim if he failed to comply with a
state procedural rule,
or
Edwards, 529
failed to raise the claim at the state level at all.
U.S. at 451; Coleman v. Thompson, 501 U.S. 722, 750 (1991).
If a
petitioner has procedurally defaulted a claim in state court,
federal
shows
court will
"cause
constitutional
and
not
review the claim unless
prejudice"
issue to the
for
the
failure
state court,
showing of actual innocence.
Gray v.
a
the petitioner
to
present
or makes
Netherland,
a
the
colorable
518 U.S.
152,
162 (1996); Sawyer v. Whitley, 505 U.S. 333, 337 (1992); Murray v.
Carrier,
477 U.S. 478, 485
(1986).
To establish "cause," a petitioner must establish that some
objective factor external to the defense impeded his efforts to
comply with the state's procedural rules.
U.S. 288, 298
(1989).
(9th Cir. 1984).
petitioner bears
Lane,
489
"Prejudice" is actual harm resulting from
the constitutional violation or error.
F.2d 240, 244
Teague v.
Magby v. Wawrzaszek,
To establish prejudice, a habeas
the burden of demonstrating that
13 - OPINION AND ORDER -
741
the
alleged
constitutional violation "worked to his actual and substantial
disadvantage,
infecting
his
constitutional dimensions."
170
(1982);
1991).
see
Thomas
v.
entire
with
trial
error
of
United States v. Frady , 456 U.S. 152,
Lewis,
945 F.2d 1119,
1123
(9th Cir.
If petitioner fails to establish cause for his procedural
default, then the court need not consider whether petitioner has
shown actual prejudice resulting from the alleged constitutional
violations.
Smith v. Murray,
477 U.S . 527, 533 (1986) .
Petitioner argues there is "cause" to excuse his procedural
default because his trial attorney ceased acting as Petitioner's
agent and instead interposed his own decision-making and usurped
Petitioner's
choice
to
plead
guilty.
Petitioner
does
not,
however, present any evidence supporting this argument and, in any
event, does not explain how counsel's actions at the guilty plea
stage
were
an
external
subsequently exhausting his
event
state
preventing
remedies
Petitioner
by filing
a
from
direct
appeal or a PCR petition.
Petitioner also contends his trial counsel "abandoned" him
and then kept his records until the trial court intervened.
As
noted above, however, Petitioner presents no evidence he attempted
to obtain his trial attorney's file until August 2011 .
Moreover,
Petitioner fails to explain how a lack of access to his attorney's
records somehow prevented Petitioner from filing a direct appeal
or a state PCR petition.
14 - OPINION AND ORDER -
Petitioner failed to establish cause to excuse his procedural
default.
Accordingly, he cannot prevail on his habeas claims in
this Court.
CONCLUSION
For these reasons, the Court DENIES the Amended Petition for
Writ of Habeas Corpus and DISMISSES this action.
Because Petitioner has not made a substantial showing of the
denial of a constitutional right, the Court DENIES a certificate
of appealabil ity .
See 28 U.S . C . § 2253 (c) (2) .
IT IS SO ORDERED.
DATED this
~
day of October, 2014.
United States District Judge
15 - OPINION AND ORDER -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?