Opinion
No. C 02-1824 SI (pr)
February 21, 2003
ORDER OF DISMISSAL
INTRODUCTION
George Howell, a California prisoner at the California State Prison in Lancaster, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 1998 conviction in the Del Norte County Superior Court. This matter is now before the court for consideration of respondent's motion to dismiss the petition as untimely. The court finds that the petition was not filed by the deadline in 28 U.S.C. § 2244(d) and therefore will dismiss the petition as untimely.
BACKGROUND
George Howell pled guilty and was convicted in 1998 of 28 counts of lewd and lascivious conduct with a child and unlawful sexual intercourse with a person under 16 years of age. He was sentenced by the Del Norte County Superior Court to a 25-year prison term.
He appealed. On June 22, 1999, the California Court of Appeal dismissed Howell's appeal on procedural grounds. Howell did not seek direct review in the California Supreme Court.
Howell filed several petitions for writ of habeas corpus in state court. His first habeas petition in the California Court of Appeal was filed on July 15, 1999 and denied on July 22, 1999. He then filed a habeas petition in the Del Norte County Superior Court on February 1, 2000, which was denied on July 28, 2000. His second habeas petition in the California Court of Appeal was filed on October 30, 2000 and denied on November 9, 2000. Finally, he filed a habeas petition in the California Supreme Court; the petition was filed on March 14, 2001 and denied on July 25, 2001.
Howell's petition in this court was stamped "filed" on April 16, 2002. The petition was mailed in an envelope bearing an April 9, 2002 postmark.
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which became law on April 24, 1996, imposed for the first time a statute of limitations on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging non-capital state convictions or sentences must be filed within one year of the latest of the date on which: (1) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (2) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (3) the constitutional right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) the factual predicate of the claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1).
Ordinarily, the starting date of the limitations period is the date on which the judgment becomes final after the conclusion of direct review or the time passed for seeking direct review. See 28 U.S.C. § 2244(d)(1)(A). Howell argues that the ordinary starting date should not be used because his case fits within 28 U.S.C. § 2244(d)(1)(B), which provides that the limitation period runs from "the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such action." Howell asserts that the county jail withheld "medical record[s] needed by Petitioner to perfect his petition which is in violation of Brady v. Maryland, 373 U.S. 83 (1963)." Traverse, p. 3. Howell's argument is unpersuasive. He has not identified any documents withheld that were necessary for him to file his federal habeas petition. He also has not come close to showing aBrady violation in this case in which he pled guilty and there was no trial. In short, he has not shown that his filing of a federal habeas petition was impeded by unconstitutional state action, which is necessary for his case to be covered by § 2244(d)(1)(B). And to the extent Howell's argument can be recast to be an argument that he is entitled to a delayed start of the limitations period until "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence," 28 U.S.C. § 2244(d)(1)(D), his argument also is unpersuasive because he has not shown that he did not know of the factual predicate of his claims. Howell was asserting his incompetency and ineffectiveness claims before his conviction even became final. For example, he stated in his federal habeas petition that his petition for writ of error coram nobis — denied in March 1999, four months before his conviction became final — asserted that he had received ineffective assistance of counsel, that he was incompetent throughout trial, and that his Fifth, Sixth and Fourteenth Amendment rights had been violated. See Petition, p. 4.
The appropriate starting date for the limitations period in Howell's case is the ordinary starting date, i.e., "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Because Howell did not seek direct review after the dismissal of his appeal by the California Court of Appeal, the one-year limitation period started at the expiration of the time for seeking direct review, i.e., on August 1, 1999 — forty days after his appeal was dismissed. See Smith v. Duncan. 297 F.3d 809, 812-13 (9th Cir. 2002) (limitation period began running day after time to seek discretionary review of California Court of Appeal's decision in the Supreme Court of California expired, which was 40 days after the Court of Appeal filed its opinion) (citing Cal. Rules of Court 24(a), 28(b), 45(a); Cal. Civ. Proc. Code § 12a). Absent any tolling, the federal petition had to be filed by August 1, 2000, to be timely. The federal petition was not deemed filed until April 9, 2002, about eighteen months after the deadline.See Saffold v. Newland, 250 F.3d 1262, 1268 (9th Cir. 2001) (pro se prisoner's federal habeas petition is deemed filed when prisoner delivers petition to prison authorities for mailing), vacated and remanded on other grounds, Carey v. Saffold, 536 U.S. 214, 122 So. Ct. 2134 (2002).
The one-year statute of limitations will be tolled under § 2244(d)(2) for the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). Howell receives no statutory tolling for his first state habeas petition filed in the California Court of Appeal because it was dismissed on June 22, 1999, before his limitations period began on August 1, 1999. He is entitled to tolling for the second round of state habeas petitions — from February 1, 2000, when he filed his habeas petition in the Del Norte County Superior Court, until July 25, 2001, when the California Supreme Court denied his last state habeas petition. An application for collateral review is "pending" in state court "as long as the ordinary state collateral review process is `in continuance,' — i.e., `until the completion of that process." Carey v. Saffold, 122 S.Ct. at 2138. In other words, until the application has achieved final resolution through the State's post-conviction procedures, by definition it remains "pending." Id In California, this means that the statute of limitations is tolled from the time the first state habeas petition is filed until the California Supreme Court rejects the petitioner's final collateral challenge, as long as the petitioner did not "unreasonably delay" in seeking review. Id. at 2139-40;accord Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) (an application for collateral review is "pending" in state court for "all of the time during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies with regard to a particular post-conviction application.") (citation omitted),cert. denied, 529 U.S. 1104 (2000). Howell cannot, however, reach back and have continuous tolling from the time of the first habeas petition in the California Court of Appeal in June 1999 because the second round of state habeas petitions (commencing with the filing of a habeas petition in the Superior Court on February 1, 2000) was not a continuation of the first habeas petition filed in the intermediate court. Nino concluded that the limitation period "remains tolled during the intervals between the state court's disposition of a state habeas petition and the filing of a petition at the next state appellate level." Nino, 183 F.3d at 1005 (emphasis added). Nino's reasoning does not extend to where successive petitions were filed at the same appellate level in the state's highest court,see Oils v. Small 260 F.3d 984, 986 (9th Cir. 2001) (not tolling limitation period during gap between successive state habeas petitions filed in the state's highest court), and therefore not between petitions where the second petition is filed at a lower level court than the first. See also Smith v. Duncan, 297 F.3d at 814-15 (when calculating tolling period, excluding gap between first set of state habeas petitions (superior court, court of appeal and supreme court) and second set of state habeas petitions (superior court, court of appeal and supreme court)). By the time Howell filed his habeas petition in the Del Norte County Superior Court, 184 days of the one-year limitations period had passed and when the California Supreme Court denied his last habeas petition on July 25, 2001, Howell had 181 days remaining in his one-year period. He had to file by January 22, 2002 to meet the deadline. He did not file until almost three months later.
The final step is to determine whether equitable tolling applies. Equitable tolling of the limitation period is available upon a showing of extraordinary circumstances beyond a petitioner's control which prevented him from timely filing the petition. See, e.g., Calderon v. United States District Court (Beeler). 128 F.3d 1283, 1288 (9th Cir. 1997) (equitable tolling will not be available in most cases because extensions of time should only be granted if extraordinary circumstances beyond prisoner's control make it impossible for him to file petition on time),cert. denied, 523 U.S. 1, and cert. denied, 523 U.S. 1061 (1998), overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc), cert. denied, 526 U.S. 1060 (1999). Mental incompetency may equitably toll the AEDPA's limitation period because mental incompetency is an extraordinary circumstance beyond a prisoner's control. See Calderon v. United States District Court (Kelly), 163 F.3d 530, 541 (9th Cir. 1998) (en bane), cert. denied, 526 U.S. 1060 (1999). But a showing of mental illness alone will not toll the limitation period. Under federal common law, mental illness tolls a limitation period only if "the illness in fact prevents the sufferer from managing his affairs and thus from understanding his legal rights and acting upon them." Miller v. Runyon, 77 F.3d 189, 191 (7th Cir.), cert. denied, 519 U.S. 937 (1996).
Howell has not established that he was mentally incompetent or was prevented from managing his legal affairs. Most mental illnesses are treatable, and with proper treatment many, if not most, sufferers are capable of managing their own affairs. See id. at 192. In order to overcome the limitation barrier, Howell must show that mental illness rendered him incapable of filing a habeas petition before the limitation period expired. Accord Rhodes v. Senkowski, 82 F. Supp.2d 160, 169-70 (S.D.N.Y. 2000) (prisoner must show that medical/mental problems rendered him unable to pursue his legal rights during relevant time period). Howell has not even approached the substantial showing of mental illness made by the petitioner in Kelly; there, the petitioner's serious mental problems were documented in a report listing extensive behavioral manifestations of the petitioner's mental illnesses and psychiatrist's conclusion that the severity of the petitioner's mental disorder precluded his capacity to appreciate his current legal position and make rational choices with respect to court proceedings.See Kelly, 163 F.3d at 541. By contrast to the detailed showing of how the mental illness affected the petitioner in Kelly, Howell has not provided persuasive evidence in support of his point; indeed, the evidence presented is so lacking that further development of it is not warranted. Attached to Howell's petition are many medical records. A significant portion of the medical records are for his ex-wife and/or his daughter, but their medical conditions do not provide any basis for tolling the limitations period for Howell. The medical records that actually concern Howell are from 1998 (mostly in the period immediately following his arrest), and do not establish anything about Howell's mental health condition in later years. The only relevant period for purposes of the present motion is the period from August 1, 1999 through April 9, 2002. In other words, the fact that Howell might have been suicidal in May 1998 does not excuse his failure to timely file his federal habeas petition a few years later. Moreover, Howell has not provided evidence that he was incompetent during the relevant time period — being suicidal and/or depressed does not make an inmate incompetent. The transcript he argues shows his incompetency shows the opposite: that the trial court and his counsel considered the assertion and thought he was competent. See Petition, Exh. F (July 16, 1998 partial transcript of proceedings).
The fact that Howell took medications to treat his mental illness also does not justify equitable tolling because he has not shown that the consumption of these medicines made him mentally incompetent so that he was unable to file his petition on time. See Petition, Exh. H (Sept. 26, 2001 Deposition Transcript, ¶. 30-31 (Howell states he takes Prozac and Neurontin and "they don't" affect his ability to recall events; Howell states that he is evaluated by psychiatric services every three months). Even if Howell suffered from, and was treated for, mental illness — even if it continues today — that is not sufficient to show that mental illness rendered him unable to pursue his legal rights during the relevant time period. Howell has not set forth any evidence, such as medical records or affidavits signed by physicians who have examined or treated him in prison, which would support a finding that he was actually prevented from filing a petition on time due to his mental illness. Even if the court could accept Howell's assertion that he has a mental illness and received treatment for it in 2001, the court will not accept Howell's implicit invitation for the court to stereotype all mentally ill — especially those who take medication to treat their mental illness — as inherently and endlessly incompetent. Against Howell's extremely weak showing, there is ample evidence that he was well enough to be a busy litigator. Howell was well enough to file state habeas petitions in July 1999, February 2000, October 2000, and March 2001; he was well enough to file his federal habeas petition in April 2002; and he was well enough to file documents in this court in an unrelated civil rights action on April 4, 2001, April 23, 2001, July 26, 2001, August 10, 2001, September 7, 2001, October 26, 2001, November 14, 2001, November 14, 2001, and January 15, 2002. See Howell v. Luis, N. D. Cal. No. C 01-1335 SI (pr). Howell simply has not shown that he had a mental illness that made him unable to file his federal habeas petition by the deadline.
Howell's federal petition was filed on April 9, 2002, over three months after the deadline for filing. The petition must be dismissed because it was not timely filed under 28 U.S.C. § 2244(d)(1).
CONCLUSION
For the foregoing reasons, respondent's motion to dismiss is GRANTED. (Docket #9.) The petition is dismissed because it was not timely filed. Petitioner's motion for demand for trial by jury is DENIED. (Docket #11.) The clerk shall close the file.IT IS SO ORDERED.
JUDGMENT
The petition for writ of habeas corpus is dismissed because it was not timely filed.IT IS SO ORDERED AND ADJUDGED.