Opinion
No. C 00-2887 CRB (PR)
August 12, 2001
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS (Doc # 5)
Petitioner, a prisoner at Mule Creek State Prison in Ione, California, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on October 10, 2000, the court noted a possible statute of limitation problem and ordered respondent to address whether the petition for a writ of habeas corpus was time-barred under 28 U.S.C. § 2244(d). Respondent promptly filed a motion to dismiss the petition as untimely (doc # 5). Petitioner has filed an opposition and respondent has filed a reply.
BACKGROUND
On August 5, 1997, petitioner pleaded nolo contendere to second degree murder in the Superior Court of the State of California in and for the County of San Mateo pursuant to a negotiated plea agreement and was sentenced to state prison for an indeterminate term of 15 years life with the possibility of parole. He did not appeal. Two and a half years later, however, he sought collateral relief from the Supreme Court of California. The state high court denied his petition on June 28, 2000.
On August 11, 2000 petitioner filed the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the voluntary and intelligent character of his plea and the nature of the advice of counsel to plead.
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") became law on April 24, 1996 and imposed for the first time a statute of limitation 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). Time during which a properly filed application for state post- conviction or other collateral review is pending is excluded from the one-year time limit. Id. § 2244(d)(2).
A state prisoner with a conviction finalized after April 24, 1996, such as petitioner, ordinarily must file his federal habeas petition within one year of the date on which his process of direct review came to an end or the date on which the time passed for seeking direct review. Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1286 (9th Cir. 1997), 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). Under California Law, petitioner had 60 days after the rendition of judgment on August 5, 1997 to file a notice of appeal. See Cal. Rules of Ct. 31(a) (d). Because he did not appeal, his judgment of conviction "became final" on October 4, 1997, the date on which the time for seeking direct review expired. 28 U.S.C. § 2244(d)(1)(A). The one- year limitation period began running against petitioner the next day, October 5, 1997. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (one-year limitation period calculated according to Federal Rule of Civil Procedure 6(a)). Petitioner therefore had until October 5, 1998 to file his federal petition. The instant petition was not filed until August 11, 2000, however. And although petitioner sought state collateral relief which may toll the one-year time limit under § 2244(d)(2), he did not do so until after the limitation period expired in October 1998. See Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000) (state petition that is filed following expiration of limitation period cannot toll that period because there is no period remaining to be tolled).
Petitioner concedes that he filed his federal petition "well after the AEDPA time limitation," but claims that he is entitled to equitable tolling. He specifically claims that his mental illness prevented him from functioning "on a sufficiently normal level to determine his legal status," and that he was "unable to determine from the prison law library materials that he had a [one-year] deadline." Respondent argues that petitioner's claims lack merit.
In order to win equitable tolling, a prisoner must demonstrate that "extraordinary circumstances beyond [his] control" made it "impossible to file a petition on time." Beeler, 128 F.3d at 1288. The prisoner "must show that the 'extraordinary circumstances' were the but-for and proximate cause of his untimeliness." Allen v. Lewis, No. 01-15503, 2001 WL 717021, at *1 (9th Cir. June 27, 2001) (citations omitted).
Petitioner first claims that he is entitled to equitable tolling because his mental illness prevented him from functioning "on a sufficiently normal level to determine his legal status." He declares, under penalty of perjury, that "[b]efore, during, and after the [state] lower-court proceedings, [he] was suffering from, and continue[s] to suffer from, diminished capacity, mental and physical." He also declares that he has been "continuously enrolled in a mental health program in State prison, and [is] controlled by psychotropic medication."
Mental incompetency may equitably toll the AEDPA's limitation period because mental incompetency is an extraordinary circumstance beyond a prisoner's control. See Kelley, 163 F.3d at 541. 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. 1996).
Petitioner's alleged enrollment in a prison mental health program and receiving psychotropic medication does not in of itself establish that he was mentally incompetent. 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, petitioner must show that mental illness or other disability rendered him incapable of filing a habeas petition before the limitation period expired on October 5, 1998. Accord Allen, 2001 WL 717021, at * 1 (prisoner must show that extraordinary circumstance at issue was the but-for and proximate cause of his untimeliness); 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).
Petitioner sets forth no evidence showing that mental illness or other disability prevented him from filing a habeas petition on time. He does not allege what mental illness or disability he suffered from, or how the illness or disability rendered him incompetent to file a habeas petition on time. He simply argues that the exhibits attached to his petition show that he has a lengthy history of mental illness. The court has reviewed those exhibits carefully and finds that they do not show that mental illness or other disability prevented petitioner from filing a habeas petition on time.
The exhibits show that petitioner checked himself into a Veteran's Admninistration ("VA") hospital on August 3, 1993 seeking treatment for schizophrenia and substance abuse. His medication had ran out and he was experiencing depression and hallucinations. He was treated and discharged several days later with a prescription for Mellaril, which had worked for him in the past and proved effective while he was hospitalized. The discharging physician noted that petitioner "appears competent to handle VA funds and continue previous activity prior to admission." Next, the exhibits show that petitioner again checked himself into a VA hospital on June 5, 1995 seeking treatment for schizophrenia and substance abuse. He was experiencing flashbacks and hallucinations. Staff noted that petitioner was "courteous, very intelligent, [and] very easy going." He obtained his GED when he was 29 years of age (and already suffering from schizophrenia) and attended school for electronics. Petitioner was helped by medication and several treatment groups at the hospital, including the thought disorder and depression groups. Again, he was discharged several weeks later with medication and prescriptions (including Desipramine and Thioridazine), and instructions "to follow-up whenever he feels necessary or in need of treatment by going to the nearest VA hospital." Finally, the exhibits show that petitioner received psychotropic drugs (including Mellaril and Lithium) while he was detained on the instant murder charge at the San Mateo County Jail during the period of March 1996 to August 1997.
The court agrees with petitioner that the exhibits show that he has a history of mental illness. Unfortunately for him, that is all they show. They do not show (contrary to petitioner's assertion) that he was mentally incompetent "before, during and after the commission of the crime and during court proceedings," and, importantly, they do not show that mental illness or other disability rendered him incapable of filing a habeas petition before the limitation period expired on October 5, 1998. That petitioner suffered from, and was treated for, mental illness and substance abuse before the entry of his plea, and possibly thereafter, is not sufficient to show that mental illness rendered him unable to pursue his legal rights (luring the relevant time period. Accord Hennington v. Johnson, No. 00-0292, 2001 WL 210405, at *4 (N.D. Tex. Feb. 28, 2001). Petitioner has not set forth any evidence, such as medical records or affidavits signed by physicians who have examined or treated him in prison, which might support his claim that mental illness or other disability prevented him from filing a petition on time. He is not entitled to equitable tolling because he has not met his burden of showing that mental illness or other disability was the "but-for and proximate cause of his untimeliness." Allen, 2001 WL 717021, at * 1 (citations omitted).
It certainly cannot be said that petitioner has not had sufficient time to substantiate his claim. This case has been pending for over a year now.
Petitioner next claims that he is entitled to equitable tolling because he was unable to determine from the prison law library materials that he had a [one-year] deadline." Petitioner declares, under penalty of perjury, that when he "attempted to obtain information and/or assistance from the prison law library, [he] met with negative results, and the legal materials were out-of-date." He cites Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir. 2000) (en banc), for support.
In Whalem/Hunt, the petitioner argued that his October 28, 1998 federal petition was not barred by the one-year limitation period because the unavailability of materials describing AEDPA in the prison law library until June 1998 was an "impediment" to his filing before June 1998, 28 U.S.C. § 2244(d)(1)(B), and proper grounds for equitable tolling. 233 F.3d at 1148. The Ninth Circuit held that it did not agree with the district court that there were no circumstances consistent with petitioner's argument "under which he would be entitled to a finding of an 'impediment' under § 2244(d)(1)(B) or to equitable tolling," and remanded for "appropriate development of the record." Id. It thus appears that the court at least suggested that lack of materials concerning AEDPA in the prison law library may constitute an impediment to the filing of an application under 28 U.S.C. § 2244(d)(1) or otherwise qualify as grounds for equitable tolling. Not surprisingly, virtually every State of California prisoner faced with a statute of limitation problem after Whalem/Hunt has argued that the limitation period did not start running against him until the California Department of Corrections ("CDC") updated its prison law libraries with AEDPA materials in 1998.
Under § 2244(d)(1)(B), the one-year limitation period starts on the date on which an 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 State action."
Respondent contends that petitioner is not entitled to equitable tolling under the rationale of Whalem/Hunt because, unlike the petitioner in Whalem/Hunt, petitioner does not claim that AEDPA materials were unavailable until after the limitation period had run in his case. Rather, petitioner claims "that because of the inadequacy . . . [of] the prison law library, he was unable to glean the necessary information to timely file a petition." According to respondent, petitioner's alleged "impediment" to filing a timely petition was his inability to understand the law.
The court finds that petitioner is not entitled to equitable tolling under the rationale of Whalem/Hunt because petitioner does not set forth any evidence that AEDPA materials were still unavailable on March 7, 1999, one year before he began seeking state collateral relief. Even if we assume that AEDPA materials were not available until late 1998, as other California state prisoners have shown, the petition here would still be untimely. Petitioner has not shown that AEDPA materials were unavailable and that their unavailability was the but-for and proximate cause of his untimeliness. Allen, 2001 WL 717021, at *1.
Nor has petitioner shown that some other "inadequacy" of the prison law library constituted an extraordinary circumstance that made it impossible for him to file on time. General shortcomings of prison law libraries (save the unavailability of AEDPA materials discussed above) do not constitute extraordinary circumstances warranting equitable tolling. Z Scott v. Johnson, 227 F.3d 260, 263 n. 3 (5th Cir. 2000). Simply alleging that the available materials and resources were not adequate cannot do. Even lack of access to library materials does not automatically qualify as grounds for equitable tolling. See Frye v. Hickman, No. 99-15935, 2001 WL 877022, at *1 (9th Cir. Aug. 6, 2001).
That petitioner apparently had difficulty ascertaining his rights and filing deadline from the prison law library materials because he is not a lawyer and/or the issues are complex does not compel a different result. Cf. Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (illiteracy of pro se petitioner not sufficient cause to avoid procedural bar); United States v. Flores, 981 F.2d 231, 236 (5th Cir. 1993) (pro se status, illiteracy, deafness and lack of legal training not external factors excusing abuse of the writ). Nor does his contention that he was able to secure evidence to support his underlying claims only recently. Under § 2244(d)(1)(D), the one-year limitation period starts on the date on which "the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." Petitioner confuses his knowledge of the factual predicate of his claims with the time permitted for gathering evidence in support of the claims: "Section 2244(d)(1)(D) does not convey a statutory right to an extended delay . . . while a habeas petitioner gathers every possible scrap of evidence that might . . . support his claim[s]." Flanagan v. Johnson, 154 F.3d 196, 198-99 (5th Cir. 1998).
CONCLUSION
The court is mindful that this is petitioner's first federal habeas petition and that the Supreme Court has cautioned lower courts that dismissal of a first petition "is a particularly serious matter." Lonchar v. Thomas, 517 U.S. 314, 324 (1996). But in order to win the equitable relief petitioner seeks and justify deviation from the express rules Congress has provided, petitioner must demonstrate that extraordinary circumstances beyond his control made it impossible for him to file on time by showing that the extraordinary circumstances were the but-for and proximate cause of his untimeliness. Allen, 2001 WL 717021, at *1. Petitioner has not met this high burden.
For the foregoing reasons, respondent's motion to dismiss the petition as untimely (doc # 5) is GRANTED.
The Clerk shall enter judgment in favor of respondent and close the file.