Gonzalez-Martinez v. Nooth

Filing 50

ORDER - Respondent's Motion to Dismiss (Dkt. 18 ) is granted and the Petition for Writ of Habeas Corpus (Dkt. 2 ) is dismissed without prejudice to Petitioner's right to refile it after he exhausts his remedies in state court. Th e Court declines to issue a Certificate of Appealability on the basis that Petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). Signed on 2/5/2016 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

CHRIS GONZALEZ-MARTINEZ,
Petitioner,

Case No. 2:14-cv-01556-ST
OPINION AND ORDER ADOPTING
FINDINGS AND RECOMMENDATION

v.
MARK NOOTH,
Respondent.
Michael H. Simon, District Judge.
United States Magistrate Judge Janice M. Stewart issued Findings and Recommendation
(“F&R”) in this case on December 14, 2015. Dkt. 41. Judge Stewart recommended that the Court
grant Respondent’s Motion to Dismiss (Dkt. 18) and dismiss without prejudice Petitioner’s
Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Dkt. 2). Respondent argues
that the Court should adopt the F&R because it correctly concludes that Petitioner has failed to
exhaust his remedies in state court. Petitioner argues that the Court should not require him to
exhaust his remedies in state court because “circumstances exist that render such process
ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(a)(B)(ii). According to
Petitioner, these circumstances include “unreasonable and excessive delays” in Oregon appellate

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courts and Petitioner’s denial of “adequate medical care” during the litigation of his multiple
state habeas cases. Dkt. 34 at 4.
Under the Federal Magistrates Act (“Act”), the Court may “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C.
§ 636(b)(1). If a party files objections to a magistrate’s findings and recommendations, “the court
shall make a de novo determination of those portions of the report or specified proposed findings
or recommendations to which objection is made.” Id.; Fed. R. Civ. P. 72(b)(3).
For those portions of a magistrate’s findings and recommendations to which neither party
has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474
U.S. 140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to
require a district judge to review a magistrate’s report to which no objections are filed.”); United
States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court
must review de novo magistrate’s findings and recommendations if objection is made, “but not
otherwise”). Although in the absence of objections no review is required, the Act “does not
preclude further review by the district judge[] sua sponte . . . under a de novo or any other
standard.” Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed. R. Civ.
P. 72(b) recommend that “[w]hen no timely objection is filed,” the Court review the magistrate’s
recommendations for “clear error on the face of the record.”
Petitioner timely filed objections to the F&R (Dkt. 41) and attached an exhibit
(Exhibit 107, purportedly the ruling of the Oregon Court of Appeals in Petitioner’s case), to
which Respondent responded (Dkt. 43). On January 8, 2016, Petitioner filed a supplemental
exhibit (Exhibit 108, Dkt. 47) with the Court, and on January 13, 2016, Respondent objected to
the Court considering Exhibit 108 in the Court’s review of the F&R and the rest of the record

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(Dkt. 48). Petitioner then filed a correction to his objections, noting that Exhibit 107 related to a
post-conviction appeal from other charges. As of January 29, 2016, his appeal in the case before
this Court was still pending before the Oregon Court of Appeals.
Petitioner objects to the F&R in its entirety, arguing that the F&R improperly looked only
to the length of the delay arising from the post-conviction process and not to the delays that
occurred during the direct appeal process. Petitioner further argues that the F&R improperly
concludes that any denial of medical care is irrelevant to determining whether Oregon’s delay in
adjudicating Petitioner’s claim satisfies the § 2254(b)(1)(B)(ii) exception to the exhaustion
requirement. In its response to Petitioner’s objections, Respondent argues that none of the
circumstances described by Petitioner render the state process “ineffective to protect”
Petitioner’s rights. The Court reviews de novo the F&R and adopts it as supplemented below.
DISCUSSION
The Ninth Circuit has followed the First and Fifth Circuits in “conclud[ing] that a district
court has discretion, but is not required, to consider evidence presented for the first time in a
party’s objection to a magistrate judge’s recommendation.” United States v. Howell, 231
F.3d 615, 621 (9th Cir. 2000). The Ninth Circuit has emphasized, however, that when a court
decides “whether to consider newly offered evidence, the district court must actually exercise its
discretion, rather than summarily accepting or denying the motion.” Id. at 622.
Here, Exhibit 107, originally attached to Petitioner’s objections, does not relate to the
case. The Court therefore does not consider it. The other supplemental exhibit, Exhibit 108, is a
thorough, 55-page forensic psychiatric evaluation of Petitioner. Dr. Soroush Mohandessi, M.D.,
performed the evaluation and concluded that Snake River Correctional Institution and the mental
health staff involved in Petitioner’s case have failed to provide Petitioner with appropriate
medical treatment for his psychiatric condition. The report is dated February 20, 2014, and
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Petitioner could have filed the report at an earlier stage of these proceedings. Respondent,
however, did not expressly challenge Petitioner’s description of his mental health condition until
Respondent’s sur-reply. Dkt 38 at 4 (“[T]here is nothing in the record to indicate that
[Petitioner’s] health conditions are worsening because of the duration of his state-court
litigation.”). Petitioner offers Dr. Mohandessi’s report in response to Respondent’s argument that
his mental health condition is stable and irrelevant. Dr. Mohandessi’s report contains serious
allegations and a detailed assessment of Petitioner, and the Court exercises its discretion to
consider the newly offered evidence in Exhibit 108.
As Judge Stewart noted, a claim of excessive delay can excuse the exhaustion
requirement. Courts examine four factors when evaluating claims of excessive delay: “Length of
delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the
defendant.” Coe v. Thurman, 922 F.2d 528, 531 (9th Cir. 1990) (quoting Barker v. Wingo,
407 U.S. 514, 530 (1972)) (quotation marks omitted). “[N]one of the four factors” is regarded
“as either a necessary or sufficient condition to the finding of a deprivation of the right of a
speedy trial [or appellate review]. Rather, they are related factors and must be considered
together with such other circumstances as may be relevant.” Id. at 532 (quoting Barker, 407 U.S.
at 533).
Petitioner argues that Exhibit 108 shows that deprivation of medical care has significantly
impaired his ability to litigate his post-conviction case in a competent manner. According to
Petitioner, without treatment for his mental health disorders, he has been unable fully to
cooperate with his counsel and the courts. To determine prejudice in appellate delay cases, courts
look “to the following: 1) oppressive incarceration pending appeal; 2) anxiety and concern of the
convicted party awaiting the outcome of the appeal; and 3) impairment of the convicted person’s

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grounds for appeal or of the viability of his defense in case of retrial.” Id. at 532. Incarceration is
not oppressive if the “appeal is meritless.” United States v. Tucker, 8 F.3d 673, 676
(9th Cir. 1993). The anxiety and concern must be “greater than any other prisoner appealing his
or her conviction.” United States v. Mohawk, 20 F.3d 1480, 1486 (9th Cir. 1994). Finally, in
assessing impairment of the convicted person’s grounds for appeal, the Ninth Circuit looks to
whether the passage of time “will make it more difficult for petitioner to refresh the memory of
witnesses or locate new exculpatory evidence.” Coe, 922 F.2d at 532 (quoting Wheeler v. Kelly,
639 F. Supp. 1374, 1381 (E.D.N.Y. 1986), aff’d, 811 F.2d 133 (2d Cir. 1987)). Any impairment
to a petitioner’s defense is the “most important interest” to consider in assessing prejudice.
Wheeler, 639 F. Supp. at 1381.
Prolonged denial of mental health treatment could impair Petitioner’s ability to locate
exculpatory evidence, particularly in light of Dr. Mohandessi’s conclusion that Petitioner suffers
from Schizoaffective Disorder, Anxiety Disorder Not Otherwise Specified, Borderline
Intellectual Functioning, and Personality Disorder Not Otherwise Specified. Dkt. 47 at 55-56.
Additionally, inadequate medical treatment of the kind alleged by Petitioner1 could result in
anxiety and concern that exceed what other prisoners might experience while awaiting the
outcome of an appeal. The record does not, at this time, contain enough evidence for the Court to
determine whether Petitioner’s appeal is meritless. Weighing these considerations, the Court
finds that Exhibit 108 presents evidence that Petitioner is uniquely predisposed to suffer
prejudice during incarceration and has “distinguish[ed] himself” from other prisoners awaiting
appeals. Mohawk, 20 F.3d at 1486. Without deciding whether Petitioner has in fact suffered a

1

Dr. Mohandessi states that Petitioner has had his access to mental health prescribers and
medications restricted since October 2010. Dkt. 47 at 52.
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denial of his Eighth Amendment rights, the Court concludes that Petitioner has shown at least
some prejudice caused by delay of state court proceedings.
The Court thus turns to the first three factors: length of delay, the reason for the delay,
and the defendant’s assertion of his right. The Court looks first to the length of delay. Unlike in
Coe, Petitioner has already completed the direct appeal process in state court. This took two and
a half years, not the almost four years that the Ninth Circuit estimated the direct appeal in Coe
would take, 922 F.2d at 531, nor the fifteen years after conviction that the Ninth Circuit deemed
unreasonable in Phillips v. Vasquez, 56 F.3d 1030, 1035 (9th Cir. 1995). Petitioner estimates that
his post-conviction appeal will take at least two and half years. An appeal process that takes a
total of five years might, in some circumstances, constitute undue delay, but turning to the
second factor, the Court finds that Petitioner is responsible for much of this delay.
A court in this district already considered Petitioner’s habeas challenge to the convictions
at issue here and noted that “it appears the delays in the PCR proceeding are directly attributable
to Petitioner’s own actions; the premature filing of his pro se [post-conviction relief (“PCR”)]
petition and the filing of multiple PCR petitions in multiple courts.” Gonzalez-Aguilera v.
Franke, 2013 WL 2149620, at *3 (D. Or. May 14, 2013).2 During Petitioner’s PCR appeal,
Petitioner sought multiple extensions of time to file his opening brief. Petitioner filed the first
request for an extension on June 10, 2014. Petitioner did not file his opening brief until
January 27, 2015. He then withdrew the brief and filed an amended brief on June 17, 2015,
almost a year after his first request for an extension. The State filed its answering brief about ten
weeks later. Dkt. 38-1 at 2. The second factor weighs against Petitioner, although Petitioner has
satisfied the third factor by asserting his right to a timely appeal.
2

Petitioner has used the name “Christopher Michael Gonzalez-Aguilera” in other
proceedings. See Dkt. 2 at 1.
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Affirmative actions of Petitioner caused too much of the delay here. On this record, any
undue delay cannot be attributed to ineffective state process. The Court therefore cannot
conclude, as it must in order to excuse the exhaustion requirement, that the state “corrective
process is so clearly deficient as to render futile any effort to obtain relief.” Duckworth v.
Serrano, 454 U.S. 1, 3 (1981). As in Westfall v. Lampert, despite a showing of prejudice, “the
balance of these four factors does not support [Petitioner’s] claim of unconstitutionally excessive
delay.” 42 F. App’x 19, 21 (9th Cir. 2002).
Further, Petitioner has another remedy for any possible violations of his Eighth
Amendment rights: he may bring a civil rights case against those allegedly responsible. Any
inadequate-medical-care claims are more appropriately brought in a 42 U.S.C. § 1983 action
rather than a habeas action. See Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (“Habeas
corpus proceedings are the proper mechanism for a prisoner to challenge the ‘legality or
duration’ of confinement. A civil rights action, in contrast, is the proper method of challenging
‘conditions of . . . confinement.’” (citation omitted) (alteration in original)).
CONCLUSION
Respondent’s Motion to Dismiss (Dkt. 18) is granted and the Petition for Writ of Habeas
Corpus (Dkt. 2) is dismissed without prejudice to Petitioner’s right to refile it after he exhausts
his remedies in state court. The Court declines to issue a Certificate of Appealability on the basis
that Petitioner has not made a substantial showing of the denial of a constitutional right pursuant
to 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
DATED this 5th day of February, 2016.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
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