Gonzalez-Aguilera v. Nooth

Filing 62

OPINION AND ORDER: The Petition for Writ of Habeas Corpus 1 is dismissed. The court does, however, issue a Certificate of Appealability as to whether petitioner is entitled to equitable tolling of the AEDPA's statute of limitations on the basis of his mental impairment. Signed on 12/19/2016 by Judge Michael H. Simon. (kms)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON CRISTOBAL MIGUEL GONZALEZAGUILERA, Case No. 2:14-cv-00325-SI Petitioner, OPINION AND ORDER v. MARK NOOTH, Respondent. Michelle A. Ryan Law Office of Michelle A. Ryan, LLC 3050 SE Division Street, Suite 225 Portland, OR 97202 Attorney for Petitioner Ellen F. Rosenblum, Attorney General Samuel A. Kubernick, Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent 1 - OPINION AND ORDER SIMON, District Judge. Petitioner brings U.S.C. 2254 § convictions this habeas challenging for the Assaulting a corpus case pursuant legality Public of Safety his to 28 state-court Officer. Because petition failed to timely file his Pe ti ti on for Writ of Habeas Corpus (#2), the Petition is dismissed. BACKGROUND In 2008, Assaulting a result, petitioner pleaded no contest to two counts of Public Safety Officer in Multnomah County. the Multnomah County Circuit Court sentenced petitioner to consecutive prison sentences totaling 60 months. Exhibit 101. 5, Marion 2010, he County assistance Respondent's Petitioner's judgment is dated September 23, 2008. Petitioner did not June As a petitioner's filed where of take for he direct appeal, post-conviction raised action two claims Exhibit was timely under and instead, relief Respondent's counsel. PCR a of ("PCR") on in ineffective 104. Although Oregon's two-year statute of limitations, by the time he filed his PCR action, the one-year statute of limitations applicable to federal habeas corpus cases had already expired. Petitioner appeared by telephone for two hearings with the PCR court and hung up on the judge during each hearing. court dismissed petitioner's the case "'rudeness for to disconnect when the Court 2 - OPINION AND ORDER failure the rules to Court, The PCR prosecute based upon and desire his to against him after hearing his legal argument." 1 487 (2015). decision, opinion, Gonzalez-Aguilera v. 274 Or. App. Premo, 484, Upon reconsideration, the PCR court adhered to its and petitioner appealed. the Oregon Court Id at of Appeals 489. In a written affirmed the PCR court's dismissal for failure to prosecute, and the Oregon Supreme Court denied review. Id, rev. denied, 358 Or. 611, 369 P.3d 386 (2016). Petitioner filed this federal habeas corpus case on February 26, 2014. within Petitioner concedes that he did not file this action the ("AEDPA's") Anti-terrorism one-year and statute Effective of Death limitations, Penalty but Act's claims that equitable tolling is appropriate given the unique facts of this case. DISCUSSION Equitable tolling is available to toll the one-year statute of limitations cases. applicable to 28 U.S.C. § 2254 habeas Holland v. Florida, 560 U.S. 631, 645 (2010). seeking to invoke equitable tolling must establish: has been pursuing his rights diligently; and (2) corpus A litigant ( 1) that he that some extraordinary circumstance prevented him from timely filing his petition. Pace v. petitioner who fails DiGuglielmo, 544 U.S. 408, 418 (2005). A to file a timely petition due to his own lack of diligence is not entitled to equitable tolling. v. Long, 253 F.3d 494, 504 (9th Cir. 2001). Tillema Petitioner bears the 1 The PCR court also provided an alternative basis for dismissal as to one of petitioner's two ineffective assistance of counsel claims, namely that petitioner failed to satisfy the attachment requirements of ORS 138.580. Gonzalez-Aguilera, 274 Or. App. at 489. 3 - OPINION AND ORDER burden of showing that this apply to him. Miranda v. "extraordinary Castro, exclusion" 292 F.3d 1063, 1065 should (9th Cir. 2002). Petitioner's primary contention is that mental justifies equitable tolling in this case. incompetence his Mental incompetence can support equitable tolling if the incompetence in fact caused him to fail to meet the AEDPA filing deadline. v. Lamarque, 351 F.3d 919, 923 (9th Cir. 2003). Laws The court must assess petitioner's ability to "do by himself the two functions involved in complying with the AEDPA filing deadlines--i.e., understand the need to file within the limitations period, submit a minimally adequate habeas petition. Clark, 628 F.3d 1092, 1100 (9th Cir. 2010). fl Bills and v. The court must also "evaluate the petitioner's diligence in seeking assistance with what he could not do alone." Id. Accordingly, before the court invokes equitable tolling, it should: (1) find the petitioner has made a nonfrivolous 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 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. Id at 1100-01. Petitioner claims that he was suffering from severe mental illness and intellectual 4 - OPINION AND ORDER disability between the time his Multnomah County judgment issued, and the date on which he filed this habeas contention, corpus case. petitioner To support provides the sealed documents for its review. limitations rendered understand the him need to court mental with a impairment variety of He maintains that his cognitive unable timely his to file rationally his or petition. factually He submits documentary evidence that he was suffering from schizoaffective disorder and acute psychosis, and that he has a full scale IQ of 67 placing him in the range of the intellectually disabled. Petitioner's Exhibit 101. The court has reviewed petitioner's sealed submissions and finds that plaintiff does, impairment. in fact, The court must next totality of the circumstances, suffer from a severe mental determine whether, under the petitioner's severe intellectual impairment made it impossible for him to timely file this case. According to the psychologist petitioner retained to perform a competency evaluation for purposes of this case, petitioner was acutely psychotic in 2009 and he had a diagnosis of schizoaffective disorder "by 2009 that at times went untreated." Petitioner's Exhibit 101, p. 11. The psychologist opines that petitioner's level of competence generally "waxed and waned" from October 2008 through February 2014. As respondent notes, Id. despite petitioner's documented mental impairments, he was able to file four habeas corpus petitions in state court, and one federal civil rights action during the time the AEDPA's one-year statute of limitations Response (#21), pp. 5-6 (listing cases). 5 - OPINION AND ORDER was running. Petitioner asserts that while his litigation history clearly shows he is able to file documents with the were either not court, timely "the vast majority of these or not Memo in Support (#50), p. 8. properly filed and filings dismissed." It does not appear that any of the cases filed in the year following his convictions in Multnomah County were dismissed as untimely. The court can only tell that petitioner moved to voluntarily dismiss one of his state habeas actions, Judge Owen M. Panner entered a Motion for Judgment against him in his federal civil rights case, the State prevailed on motions state habeas actions. to dismiss in the Summary and that other See Respondent's Exhibits 114-117, three 120. The record also reveals that petitioner was able to file a timely state PCR challenge to the convictions he challenges here. Respondent's Exhibit 104. Where petitioner was able to file a timely PCR case, and where he filed five state and federal cases while the AEDPA's statute of limitations was running, his mental illness did not make it impossible for him to timely file this case. See Gaston v. (litigant's Palmer, 417 F.3d 1030, 1035 ability to prepare and file state (9th Cir. court 2005) petitions illustrates his ability to file a federal habeas petition during the same time) ; Cir. 2015) Sanford v. Soto, 617 F. 3d. Appx. 7 67, 7 68 (9th (filing of three state habeas cases shows petitioner's ability to file a federal habeas action). In addition, challenge, during petitioner filed the his pendency first of the federal timely habeas corpus action arising from the convictions at issue in this case. Gonzalez-Aguilera v. Premo, 6 - OPINION AND ORDER Case No. 6: ll-cv-01058-SI. PCR See At the same time, he filed a proper, complete Application for Leave to Proceed In Forma Pauperis as well as a Motion for Appointment of Counsel. The represent petitioner court appointed in the that Federal action Public (later Def ender substituting to CJA counsel). A review of the filings shows that they were much more than "minimally adequate." While the court would later determine petitioner's case to be premature, 2 the filing of these documents is further evidence of his ability Specifically, to timely petitioner file federal a habeas case. filed these documents while under the same mental impairment he claims made it impossible for him to file such documents earlier. the forensic mental health Although petitioner requested that evaluation he commissioned for purposes of this case specifically exclude the period of time in which he filed his first federal habeas corpus case, Petitioner's Exhibit 101, p. 10, it is mental impairment is not new, apparent that petitioner's nor did it exist only while the As he outlines in AEDPA's statute of limitations was running. his supporting impairment was memorandum, recognizable severe evidence of early his in his severe life when mental he was diagnosed during his youth with childhood schizophrenia and "dull normal or borderline "'borderline mentally damage" in 1987. intellectual retarded' abilities," with and possible found to be organic brain Reply (#50), p. 2. 2 Although not a basis for the dismissal, the case would also have been untimely. 7 - OPINION AND ORDER Despite these obstacles, four state habeas case during running; corpus the time actions the and one AEDPA' s federal statute request counsel and file his (2) case corpus petitioner was able to: in 2011, a filing that was of ( 1) civil rights limitations first more file was federal habeas than "minimally adequate;" and (3) timely file for state collateral relief in the form of a PCR action challenging his underlying convictions on the basis of ineffective assistance of counsel. F.3d at 1090 (relevant inquiry into the See Bills, totality of 628 the circumstances includes whether the mental impairment "interferes with the ability to understand the need for assistance, the ability to secure it, or the ability to cooperate with or monitor assistance the petitioner does secure"). of this filing history, Based upon the totality including petitioner's repeated ability to ask for and receive counsel in federal court, it is difficult for him to assert that his longtime severe mental impairment made it impossible manner. for him to Instead, file petitioner this case in a more expeditious failed to timely file this case because he did not diligently pursue his claims when he waited more than one year to begin pursuit of his state PCR remedy, thereby forfeiting his ability to seek federal habeas relief. Petitioner also asserts that equitable tolling is appropriate because he was without access to his legal materials for approximately one month in 2010 while he was housed at the Oregon State Correctional Institution, use the and that he was unable to law library at the Oregon State placed in segregated housing. 8 - OPINION AND ORDER Prison because was in It is not clear that petitioner's brief prison transfer and his placement in segregated housing constitute "extraordinary circumstances" in the prison setting. See Soto v. Lopez, 575 Fed. Appx. 740 (9th Cir. 2014) lack of access administrative to legal materials segregation (9th Cir. 2009) a prison law library due trans fer see also Ramirez v. prison limitations"); 998 and and the (describing Yates, as to "ordinary 571 F.3d 993, (limitation on access to legal materials for prisoners in segregated housing does not constitute extraordinary circumstance) . Even assuming they do, petitioner fails to establish how these circumstances made it impossible for him to timely file this case, especially where he was able to file five other lawsuits equitable in tolling state is not and federal appropriate court. to excuse Accordingly, petitioner's untimely filing.3 Ill Ill Ill Ill Ill Ill Ill Ill Ill 3 Even if petitioner had timely filed this case, where the PCR court dismissed his case for failure to prosecute, the ineffective assistance of counsel claims he seeks to litigate here would be procedurally defaulted. See Rose v. Lundy, 455 U.S. 509, 519 (1982) (requiring fair presentation of claims in state court). 9 - OPINION AND ORDER CONCLUSION For the reasons identified above, Habeas Corpus a (#1) Certificate entitled to of the Petition for Writ of is dismissed. The court does, however, Appealability as equitable tolling of to whether the issue petitioner AEDPA's statute limitations on the basis of his mental impairment. IT IS SO ORDERED. DATED this /1fV day of December, 2016. Mi Simon United States District Judge 10 - OPINION AND ORDER is of

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