Opinion
No. 99 C 6067.
April 3, 2000.
MEMORANDUM OPINION AND ORDER
Petitioner Larry Darnell Kennedy filed this petition for habeas corpus under 28 U.S.C. § 2254 challenging his conviction for murder entered August 10, 1978, in the Circuit Court of Cook County, Illinois. His conviction was affirmed by the Illinois Appellate Court and petitioner did not seek leave to appeal to the Illinois Supreme Court. According to the petition, Kennedy filed a post-conviction petition in September of 1979 which was dismissed in June of 1981, and the dismissal was affirmed by the Illinois Appellate Court in May of 1984. Again, Kennedy did not seek leave to appeal. He states he filed another unspecified post-conviction or habeas petition in May of 1990 but did not pursue it. This court's records show an earlier petition for habeas corpus in 1980, No. 80 C 1545, which was summarily dismissed without prejudice for failure to exhaust state remedies.
Kennedy was a minor at the time of the crime. He asserts that he received ineffective assistance of counsel because his attorney convinced him to waive the protections of the Juvenile Court Act and agree to be tried as an adult, and that his attorney advised him to waive the presentence investigation interview.
Petitions for habeas corpus challenging convictions more than twenty years old are very rare, and even more rarely granted. In the court's prior memorandum opinion and order of November 15, 1999, the court explained that Kennedy had two procedural obstacles to overcome before the court could even reach the merits of his constitutional claims. First, under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), there is a one-year limitation period for filing a petition for habeas corpus. As Kennedy had exhausted both direct and collateral review of his conviction long before the effective date of the AEDPA, April 24, 1996, the one-year period began to run on that date, more than three years before the petition was filed. Second, Kennedy failed to seek leave to appeal to the Illinois Supreme Court with respect to both his direct appeal and his post-conviction petition. Under the rule of O'Sullivan v. Boerckel, 119 S.Ct. 1728 (June 7, 1999), this resulted in a procedural default.
The court did not summarily dismiss the petition at this point, because Kennedy alleged that he had suffered from mental illness for many years and had "lost touch with self, my environment, freedom and reality." Under principles of federal common law, mental illness could be a basis for equitable tolling of the AEDPA limitations period, and mental illness could also constitute "cause," potentially excusing the procedural default.
Nevertheless, Kennedy faced a heavy burden. Serious mental illness is not enough. The illness must be incapacitating, not merely in a general sense, but with respect to the petitioner's ability to comply with the procedural requirements at the time they arose. In Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996), the Seventh Circuit stated that mental illness tolls a statute of limitations only if "the illness in fact prevents the sufferer from managing his affairs and thus from understanding his legal rights and acting upon them." And although this court found no Seventh Circuit opinions discussing mental illness as an excuse for a procedural default, the Eighth Circuit had applied a similarly strict standard in such cases: the petitioner must suffer from "a mental disorder so severe that it was impossible for him to understand the papers filed on his behalf or to make rational decisions about what claims to include in them." Garrett v. Groose, 99 F.3d 283, 285 (8th Cir. 1996); see also Holt v. Bowersox, 190 F.3d 970, 974 (8th Cir. 1999) ("in order for mental illness to constitute cause and prejudice to excuse procedural default, there must be a conclusive showing that mental illness interfered with a petitioner's ability to appreciate his or her position and make rational decisions regarding his or her case at the time during which he or she should have pursued post-conviction relief"). The court also noted in a footnote that court records showed that during his incarceration Kennedy had participated in civil suits in this court, indicating that he had not been continuously incapacitated.
Using the discretion granted by Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the court directed Kennedy to make a prima facie showing that he was incapacitated between April 23, 1996 and April 23, 1997 (the one-year period for filing a petition for habeas corpus), and that he was incapacitated at the time he would have had to file one or both petitions for leave to appeal. This showing was to be in the form of medical records or affidavits signed by physicians who had examined or treated the petitioner, explaining the nature of Kennedy's disability and stating the period in which Kennedy was so disabled. The court's order set forth the legal standard repeated above, and made clear that a showing that Kennedy received psychotropic medication would not establish that he was mentally incapacitated. Kennedy was given ninety days to respond, and correctional officials were directed to cooperate with Kennedy in obtaining medical records and affidavits.
Kennedy initially asked the court to appoint counsel for him. The court denied the motion without prejudice because the court wanted some assurance that there was evidence to back up Kennedy's claim of mental disability. On November 26, 1999, Kennedy filed a letter with the court withdrawing his request for an attorney.
In a letter filed December 1, 1999, Kennedy corrected this court's misapprehension that he had previously filed civil suits in this court, pointing out that the prisoner named as a plaintiff in these suits was another Larry Kennedy. The court now accepts that these suits were not filed by petitioner. On February 14, 2000, Kennedy filed a package of exhibits with the court. The exhibits are medical records, partially organized, unlabeled, duplicative, and almost certainly incomplete. While these exhibits do establish that Kennedy suffers from chronic paranoid schizophrenia, which from time to time has required medication, they do not come close to a showing of mental incapacity at the relevant times. Nor does the court believe that the exhibits warrant the appointment of counsel to obtain more complete records.
The court does not mean to imply that Kennedy has withheld documents, although he may have, and in any case was free to do so. The court had only asked that he provide evidence supporting his claim of disability. But it is unlikely that in the relevant period, April 1996-April 1997, Kennedy did not have regular psychiatric visits before October of 1996, and that there are not additional records relating to Kennedy's condition in the early 1980's.
A psychiatric evaluation dated June 24, 1999, by psychologist (M.A.) Irfan Sufi at Stateville Correctional Center, prepared for an upcoming parole hearing before the Illinois Prisoner Review Board, gives Kennedy's clinical history. Kennedy, who was born in 1960, has been incarcerated in the Illinois Department of Corrections (IDOC) since 1978. At the time of the evaluation, he had been admitted at least nine times to IDOC psychiatric treatment facilities at Menard Correctional Center and Dixon Correctional Center for a total of approximately 72 months. Kennedy has been diagnosed as having paranoid schizophrenia and has been treated with psychotropic medications in the past, but as of the date of the evaluation Kennedy stated that he had managed to do well without psychotropic medication for the past five years, i.e., since 1994. According to the evaluation, Kennedy assaulted a physician in 1981 at Stateville. (This may be the incident reported in medical progress notes from July of 1981 recounting an episode of irrational and delusional behavior involving a trip to the hospital.) In 1983 Kennedy had threatened to kill the psychologist and psychiatrist at Stateville. At the time of the evaluation Kennedy was doing well, mentally. Sufi noted "paranoid processing, but no active delusions," and reported Kennedy's judgment was intact.
Kennedy's relatively good condition in 1999 does not establish that he was not disabled before. In the light of other exhibits, Kennedy's reported assertion in the interview that he had done well without medication for five years is, to put it mildly, an exaggeration. The exhibits have virtually nothing to say concerning the time in which Kennedy would have had to seek leave to appeal to the Illinois Supreme Court. But the exhibits do include relevant "mental health evaluations" (better described as treatment notes) by psychiatrist Andrew Kowalkowski from 1996 and 1997 that establish that Kennedy was not incapacitated — in the sense required here — for a significant part of the AEDPA limitations period. Since it is now clear that Kennedy cannot clear the hurdle of the AEDPA time limit, it is unnecessary to ask whether, with better research or assistance, he could show that he was unable to petition the Illinois Supreme Court for leave to appeal.
The evaluations falling within the relevant period of April 24, 1996 — April 24, 1997 are dated October 19, 1996, November 16, 1996, December 15, 1996, March 2, 1997, March 9, 1997 and April 5, 1997.
The evaluations from October of 1996 to April of 1997 show that Kennedy showed paranoid thinking at times, but had no hallucinations and no overt delusions. Kennedy had not been receiving psychotropic medication; he had refused medication and it was not considered necessary to force him to take it. After the evaluation on March 9, 1997, Kennedy agreed to begin taking medication, and on April 5, 1997, Dr. Kowalkowski reported that Kennedy was doing "extremely well" and that his judgment and insight, though "fair," were slowly improving. On May 4, just outside the period, Kowalkowski stated that Kennedy "has done tremendously well." Kennedy then asked to discontinue medication. Dr. Kowalkowski stated in his evaluation that "[i]t has been noted that this patient responds nicely to medications and then wants to go off of them. So I agreed with the patient that we would discontinue the medications, however, if his symptoms were to decompensate, he should notify someone and we would reinstitute the medications as soon as possible."
While these evaluations do not show that Kennedy was mentally normal, they do negate the kind of disconnection from reality that would be required to toll the limitations period. It appears that Kennedy's condition varied, that there were times when Kennedy was unable to concentrate and think, and other times when his mental functioning was virtually normal. As long as there were periods in which he could have prepared a habeas petition — and there appears to have been ample time just in the period from October of 1996 to April of 1997 — equitable tolling should not apply. Furthermore, it appears that Kennedy responded to medication and probably could have maintained a higher functional level more of the time had he not withheld his consent to medication. As long as Kennedy's condition did not make him a threat to himself or others, he had the right to refuse medication. Nevertheless, it would be inequitable to put the state to the burden of justifying his conviction many years later if Kennedy's own refusal to take responsibility for maintaining his mental health kept him from asserting his claims at the proper time.
It appears that Kennedy's condition improved after April of 1997. Evaluations dated January 23, 1998 and February 17, 1998, state that he was doing well and not taking medication. Even if Kennedy's not filing his petition before April of 1997 can be excused, there is no excuse for his not filing it it within a reasonable time thereafter.
Accordingly, the court finds that the petition for habeas corpus is untimely and barred by 28 U.S.C. § 2244(d), and dismisses the petition with prejudice.
Although the court does not decide the merits of the petition, it is probably meritless. In 1978 a 14-year-old juvenile did not have a right to choose to be tried as a juvenile rather than an adult. Under Ill. Rev. Stat. ch. 37 § 702-7(3) (1977), the State's Attorney could petition the Juvenile Court for an order permitting prosecution of the juvenile as an adult. To establish ineffective assistance of counsel, Kennedy would have to show that (1) his counsel's actions fell below a reasonable standard of competence, and (2) if his counsel bad fought for it there would have been a reasonable probability that he would have been tried as a juvenile. Strickland v. Washington, 466 U.S. 668 (1984); Ashford v. Gilmore, 167 F.3d 1130, 1134 (7th Cir. 1999). Further, it appears that Kennedy is not challenging the reliability of his trial, only claiming that being tried as an adult resulted in a more severe punishment. Errors that do not deprive the petitioner of a fair trial are not considered constitutionally objectionable. See Ashford, 167 F.3d at 1134-35 (citing Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)).