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)

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