Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Margaret M. Morrow, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on March 5, 2012, bearing a signature and service date of February 16, 2012. Respondent filed an Answer on April 26, 2012, asserting that the Petition is untimely. Petitioner did not file a Reply within the allotted time. On May 23, 2012, the Magistrate Judge ordered Petitioner to file a Reply. Petitioner again failed to file a Reply within the allotted time. On June 21, 2012, the Magistrate Judge issued a Report and Recommendation recommending dismissal of the Petition without prejudice for failure to prosecute.
On June 25, 2012, the Magistrate Judge received in chambers Petitioner's request for an extension of time to file a Reply. Petitioner sought an extension on the ground that he had "less than a 6th grade education and need[ed] extra time." The Magistrate Judge granted Petitioner an extension of time until July 23, 2012. On July 24, 2012, Petitioner filed another request for an extension of time to file a Reply, stating that he was "having problems getting all of my mental health legal papers together." On July 25, 2012, the Magistrate Judge granted Petitioner an extension of time until August 23, 2012.
On August 23, 2012, Petitioner filed: (1) a Traverse; and (2) a "Motion to Appoint Counsel/For Evidentiary Hearing Due to Mental Illness/Inability to Reply/Traverse," to which was attached a "Declaration of Petitioner re: Appointment of Counsel/Equitable Tolling" ("Petitioner's Declaration").
Petitioner's Declaration stated that Petitioner could not obtain any psychiatric files from the California Department of Corrections and Rehabilitation aside from those attached to the Petition and to Petitioner's Declaration, purportedly because prison psychiatrists deemed the content of the files "too sensitive" to be given to Petitioner (Petitioner's Declaration, ¶ 4). Petitioner stated that the Department of Corrections and Rehabilitation would release the files only to an attorney or mental health providers, and would not release the files to any inmate assisting Petitioner (id.).
On August 31, 2012, the Magistrate Judge ordered Respondent to lodge, ex parte and under seal, copies of all documents in the possession, custody or control of the California Department of Corrections and Rehabilitation relating to Petitioner's mental health diagnosis and/or treatment from January 1, 1996 to the present. On September 11, 2012, Respondent lodged under seal the assertedly responsive documents. The Court has examined all of these documents in camera.
BACKGROUND
In 1985, a jury found Petitioner guilty of murder and robbery (Respondent's Lodgment 3, p. 2). Petitioner received a sentence of life without the possibility of parole (Respondent's Lodgment 1).
The Court of Appeal affirmed the judgment on March 19, 1987 (Respondent's Lodgment 1). The California Supreme Court denied Petitioner's petition for review on June 18, 1987 (Respondent's Lodgment 2).
On June 30, 1989, Petitioner filed a habeas corpus petition in the California Supreme Court (case number S010889), which that court denied with citations on November 1, 1989.
Respondent does not mention this petition. The Court takes judicial notice of the California Supreme Court's docket in case number S010889, available on the California courts' website at www.courts.ca.gov. (attached). Although the California Supreme Court's docket does not indicate whether the petition in case number S010889 concerned the conviction challenged in the present federal Petition, the Court assumes arguendo that the petition in case number S010889 concerned that conviction.
In 1998, Petitioner filed a request for transcripts in the Los Angeles County Superior Court, which that court denied by minute order dated September 2, 1998 (Respondent's Lodgment 3, Ex. A). On October 26, 1998, Petitioner filed a habeas corpus petition in the California Court of Appeal (case number B126577), bearing a signature and service date of October 20, 1998 (Respondent's Lodgment 3). The Court of Appeal denied the petition on October 30, 1998.
Over ten years later, on December 22, 2008, Petitioner filed another habeas corpus petition in the Court of Appeal (case number B212912), bearing a signature and service date of December 18, 2008 (Respondent's Lodgment 5). The Court of Appeal denied the petition on December 30, 2008 (Respondent's Lodgment 6).
On August 23, 2011, Petitioner filed a third habeas corpus petition in the Court of Appeal (case number B235329), bearing a signature date of August 14, 2011 (Respondent's Lodgment 7). The Court of Appeal denied the petition on August 26, 2011 (Respondent's Lodgment 8).
On September 12, 2011, Petitioner filed a habeas corpus petition in the California Supreme Court (case number S196395), bearing a signature date of September 7, 2011 (Respondent's Lodgment 9). The California Supreme Court denied the petition on January 18, 2012 with citations to In re Robbins 18 Cal.4th 770 , 77 Cal.Rptr.2d 153, 959 P.2d 311 (1998), and In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993), signifying that the court deemed the petition to be untimely (Respondent's Lodgment 10).
See Walker v. Martin, 131 S.Ct. 1120, 1124 (2011); Gaston v. Palmer, 417 F.3d 1030, 1036-37 (9th Cir. 2005), modified, 447 F.3d 1165 (9th Cir. 2006), cert. denied, 549 U.S. 1134 (2007); Bennett v. Mueller, 322 F.3d 573, 578-79 (9th Cir., cert. denied, 540 U.S. 938 (2003).
PETITIONER'S CONTENTIONS
Petitioner contends:
1. Petitioner's counsel failed to raise the grounds asserted in Ground Two through Five of the Petition (Ground One);
2. Petitioner's conviction allegedly was obtained by perjured testimony (Ground Two);
4. Petitioner allegedly received an illegal sentence; judicial and procedural bars assertedly do not apply to a challenge to an allegedly illegal sentence on habeas corpus (Ground Four);
5. "Petitioner is a greenhorn at law with mental illness constituting exception to Antiterrorist Act" (Ground Five);
Thus, Ground Five is not a claim for habeas relief, but rather an argument for equitable tolling of the statute of limitations.
6. The alleged retroactive application of California Penal Code section 190.25 to Petitioner's case assertedly facilitated an unauthorized and unconstitutional sentence (Ground Six);
7. Petitioner's second trial allegedly placed Petitioner twice in jeopardy (Ground Seven);
8. The evidence allegedly did not support Petitioner's first degree murder conviction (Ground Eight);
9. The trial court allegedly erred in denying Petitioner's motion for a new trial (Ground Nine);
11. The prosecutor allegedly committed misconduct by introducing evidence of motive and by assertedly suborning perjured testimony (Ground Eleven).
DISCUSSION
The "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), signed into law April 24, 1996, amended 28 U.S.C. section 2244 to provide a one-year statute of limitations governing habeas petitions filed by state prisoners:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) 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 State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) 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 shall not be counted toward any period of limitation under this subsection.
"AEDPA's one-year statute of limitations in § 2244(d)(1) applies to each claim in a habeas application on an individual basis." Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012).
Petitioner's conviction became final on September 16, 1987, upon the expiration of 90 days from the California Supreme Court's June 18, 1987 denial of Petitioner's petition for review. See Jimenez v. Quarterman, 555 U.S. 113, 119-20 (2009) ("direct review cannot conclude for purposes of § 2244(d)(1)(A) until the availability of direct appeal to the state courts, [citation], and to this Court, [citation] has been exhausted"); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) (period of "direct review" after which state conviction becomes final for purposes of section 2244(d)(1) includes the 90-day period for filing a petition for certiorari in the United States Supreme Court).
State habeas petitioners, such as Petitioner, whose convictions became final prior to AEDPA's effective date have a one-year "grace period" in which to file their petitions. See Rhoades v. Henry, 598 F.3d 511, 519 (9th Cir. 2010). Therefore, the statute of limitations began to run on April 25, 1996, unless subsections B, C, or D of 28 U.S.C. section 2244(d)(1) furnish a later accrual date. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 529 U.S. 1104 (2000) (AEDPA statute of limitations is not tolled between the conviction's finality and the filing of the first state collateral challenge).
Subsection B of section 2244(d)(1) is inapplicable. Petitioner does not allege, and the record does not show, that any illegal conduct by the state or those acting for the state "made it impossible for him to file a timely § 2254 petition in federal court." See Ramirez v. Yates, 571 F.3d 993, 1000-01 (9th Cir. 2009). To the extent Petitioner alleges that his counsel failed to raise certain claims on appeal, Petitioner has not shown that his attorney's alleged ineffectiveness in 1987 prevented Petitioner from filing a federal habeas petition during the one year following April 25, 1996. See Randle v. Crawford, 604 F.3d 1047, 1058 (9th Cir. 2010), cert. denied, 131 S.Ct. 474 (2010) (state-appointed counsel's alleged failure to perfect state court appeal did not merit delayed accrual under section 2244(d)(1)(B), where nothing prevented the petitioner from filing a federal habeas petition); Bryant v. Arizona Att'y General, 499 F.3d 1056, 1060 (9th Cir. 2007) (to show delayed accrual under section 2244(d)(1)(B), a petitioner must "show a causal connection between the unlawful impediment and his failure to file a timely habeas petition") (citations omitted).
Subsection C of section 2244(d)(1) is also inapplicable. Petitioner does not assert any claim based on a constitutional right "newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." See Dodd v. United States, 545 U.S. 353, 360 (2005) (construing identical language in section 2255 as expressing "clear" congressional intent that delayed accrual inapplicable unless the United States Supreme Court itself has made the new rule retroactive); Tyler v. Cain, 533 U.S. 656, 664-68 (2001) (for purposes of second or successive motions under 28 U.S.C. section 2255, a new rule is made retroactive to cases on collateral review only if the Supreme Court itself holds the new rule to be retroactive); Peterson v. Cain, 302 F.3d 508, 511-15 (5th Cir. 2002), cert. denied, 537 U.S. 1118 (2003) (applying anti-retroactivity principles of Teague v. Lane, 489 U.S. 288 (1989), to analysis of delayed accrual rule contained in 28 U.S.C. section 2244(d)(1)(C)).
Section 2244(d)(1)(D) does not furnish an accrual date later than April 25, 1996 for Petitioner's claims. Under section 2244(d)(1)(D), "[t]ime begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance." Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001) (citation and internal quotations omitted). "Due diligence does not require the maximum feasible diligence,' but it does require reasonable diligence in the circumstances." Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012) (quoting Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004), cert. denied, 544 U.S. 1037 (2005) (footnote omitted)). Section 2244(d)(1)(D) applies "only if vital facts could not have been known by the date the appellate process ended." Ford v. Gonzalez, 683 F.3d at 1235 (citations and internal quotations omitted). "The due diligence' clock starts ticking when a person knows or through diligence could discover the vital facts, regardless of when their legal significance is actually discovered." Id. (citations omitted). "Although section 2244(d)(1)(D)'s due diligence requirement is an objective standard, a court also considers the petitioner's particular circumstances." Id. (citations omitted).
Here, Petitioner knew or should have known, no later than April 25, 1996 (more than nine years after Petitioner's conviction became final), the "vital facts" underlying his claims that: (1) Petitioner's conviction assertedly was secured by perjured testimony and prosecutorial misconduct (Grounds Two and Eleven); (2) Petitioner allegedly received an illegal sentence (Grounds Four and Six); (3) Petitioner's second trial allegedly violated Double Jeopardy (Ground Seven); (4) the evidence allegedly did not support Petitioner's conviction (Ground Eight); (5) the trial court allegedly erred in denying Petitioner's motion for a new trial (Ground Nine); and (6) the trial court allegedly denied Petitioner a fair trial by assertedly refusing to allow Petitioner's counsel to call a coroner or deputy coroner as a defense witness (Ground Ten).
As indicated previously, Ground Five does not state a claim for relief, but simply argues an entitlement to equitable tolling.
Ground Three states in conclusory fashion that, in alleged violation of state law, Petitioner did not receive notice of the disposition of evidence. While the Petition alleges no supporting facts, Petitioner's California Supreme Court habeas petition contains an exhibit purporting to be a letter from the "California DNA Project" to Petitioner, dated May 11, 2011 (Respondent's Lodgment 9, first exhibit). This letter states, inter alia, that the agency's investigation reportedly had determined that, pursuant to court order, the Los Angeles County Sheriff had destroyed the knife used in the murder. Id. Assuming arguendo Ground Three concerns an alleged failure to provide notice of the destruction of the knife, Petitioner alleges no facts showing why the destruction of the knife was material to any claim, or why Petitioner reasonably could not have discovered the destruction of the knife many years earlier (e.g., within the first decade after his conviction became final). In any event, any claim that an alleged lack of notice of the destruction of evidence violated state law could not warrant federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (mere errors in the application of state law are not cognizable on federal habeas corpus).
Finally, Petitioner knew or should have known, no later than April 25, 1996, the "vital facts" on which Petitioner bases his claim of ineffective assistance of counsel in failing to raise Petitioner's other claims (Ground One). Therefore, the statute of limitations began running on April 25, 1996 and, absent tolling, expired on April 24, 1997. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir.), cert. denied, 534 U.S. 978 (2001). Petitioner constructively filed the present Petition on February 16, 2012, almost fifteen years after the limitations period expired. Absent tolling, the Petition is untimely.
The Court assumes arguendo that Petitioner filed the Petition on its signature and service date, February 16, 2012. See Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (prison mailbox rule applies to federal habeas petitions).
Section 2244(d)(2) tolls the statute of limitations during the pendency of "a properly filed application for State post-conviction or other collateral review." Petitioner apparently filed one state petition, his California Supreme Court petition in case number S010889, prior to the commencement of the limitations period. That petition was "pending" from June 30, 1989, through November 1, 1989, long before the limitations period began to run.
In certain circumstances a habeas petitioner may be entitled to "gap tolling" between the date a state habeas petition is denied and the date of filing of a "properly filed" habeas petition in a higher state court. See Carey v. Saffold, 536 U.S. 214, 219-221 (2002). However, an untimely state habeas petition is not a "properly filed" petition for purposes of statutory tolling under section 2244(d)(2). Pace v. DiGuglielmo, 544 U.S. 408, 412-13 (2005); see also Allen v. Siebert, 552 U.S. 3, 6-7 (2007); Carey v. Saffold, 536 U.S. at 225 (California state habeas petition filed after unreasonable delay not "pending" for purposes of section 2244(d)(2)); see also Evans v. Chavis, 546 U.S. 189, 191 (2006) ("The time that an application for state postconviction review is pending' includes the period between (1) a lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law") (citation omitted).
Here, following the California Supreme Court's denial of the petition in S010889 on November 1, 1989, Petitioner waited until October 20, 1998 to file constructively a habeas petition in the California Court of Appeal (case number B126577). The Court of Appeal denied that petition summarily.
See Porter v. Ollison, 620 F.3d at 958. Petitioner's 1998 motion for transcripts cannot be construed reasonably as a "properly filed application for State post-conviction or other collateral review." See May v. Workman, 339 F.3d 1236, 1237 (10th Cir. 2003) (motions for transcripts and petitions for mandamus relating to those motions did not constitute applications for state collateral review sufficient to invoke statutory tolling); Rosati v. Kernan, 417 F.Supp.2d 1128, 1131 (C.D. Cal. 2006) (filing of motions for transcripts insufficient to support statutory tolling); see also Cal. Penal Code § 1474 (application for writ of habeas corpus must be made by verified petition, signed by the party seeking relief or one on his or her behalf, and must identify the custodian and place of restraint, and the grounds whereby the petitioner's imprisonment is alleged to be illegal).
Where, as here, a state court denies a habeas petition without a "clear indication" that the petition was timely or untimely, a federal habeas court "must itself examine the delay in each case and determine what the state courts would have held in respect to timeliness." Evans v. Chavis, 546 U.S. at 198; see also Banjo v. Ayers, 614 F.3d 964, 969 (9th Cir. 2010), cert. denied, 131 S.Ct. 3023 (2011) ("We cannot infer from a decision on the merits, or a decision without explanation, that the California court concluded that the petition was timely.") (citation omitted).
In California, a petition is timely if filed within a "reasonable time" after the petitioner learns of the grounds for relief. Carey v. Saffold, 536 U.S. at 235 (citations omitted). In Evans v. Chavis, the petitioner delayed over three years before filing his California Supreme Court habeas petition, and failed to provide justification for six months of the delay. Evans v. Chavis, 546 U.S. at 192, 201. The Supreme Court deemed the petition untimely, finding "no authority suggesting,... [or] any convincing reason to believe, that California would consider an unjustified or unexplained 6-month filing delay reasonable.'" Id. at 201. Here, Petitioner's delay far exceeded the delay deemed unreasonable in Evans v. Chavis . Petitioner is not entitled to tolling between the California Supreme Court's denial in case number S010889 and the filing of the California Court of Appeal petition in case number B126577. See also Roberts v. Marshall, 627 F.3d 768, 771 n.4 (9th Cir. 2010), cert. denied, 132 S.Ct. 286 (2011) ("gap" of 19 months did not warrant gap tolling).
The statute of limitations expired long before Petitioner filed his next Court of Appeal petition on December 18, 2008 (case number B212912). Petitioner's subsequently-filed state court petition cannot revive the expired statute. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.), cert. denied, 540 U.S. 924 (2003) ("section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed"); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001), cert. denied, 538 U.S. 949 (2003) (filing of state habeas petition "well after the AEDPA statute of limitations ended" does not affect the limitations bar); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.), cert. denied, 531 U.S. 991 (2000) ("[a] state-court petition... that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled"); see also Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 529 U.S. 1104 (2000) (AEDPA statute of limitations is not tolled between the conviction's finality and the filing of the first state collateral challenge). Absent equitable tolling, the present Petition is untimely.
AEDPA's statute of limitations is subject to equitable tolling "in appropriate cases." Holland v. Florida, 130 S.Ct. 2549, 2560 (2010) (citations omitted). "[A] petitioner' is entitled to equitable tolling' only if he shows (1) that he has been pursuing his claims diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Id. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. at 418); see also Lawrence v. Florida, 549 U.S. 327, 336 (2007). The threshold necessary to trigger equitable tolling "is very high, lest the exceptions swallow the rule." Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.), cert. denied, 130 S.Ct. 244 (2009) (citations and internal quotations omitted). Petitioner bears the burden to show equitable tolling. See Zepeda v. Walker, 581 F.3d 1013, 1019 (9th Cir. 2009). Petitioner must show that the alleged "extraordinary circumstances" were the "cause of [the] untimeliness." Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006), cert. denied, 549 U.S. 1317 (2007) (brackets in original; quoting Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003)). Petitioner must show that an "external force" caused the untimeliness, rather than "oversight, miscalculation or negligence." Waldron-Ramsey v. Pacholke, 556 F.3d at 1011 (citation and internal quotations omitted).
Petitioner argues he is a "greenhorn at law." However, Petitioner's alleged ignorance of the law, lack of legal sophistication and lack of legal assistance cannot justify equitable tolling. See Waldron-Ramsey v. Pacholke, 556 F.3d at 1013 n.4 ("we have held that a pro se petitioner's confusion or ignorance of the law is not, itself, a circumstance warranting equitable tolling") (citation omitted); Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) ("we now join our sister circuits and hold that a pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling"); Jimenez v. Hartley, 2010 WL 5598521, at *5 (C.D. Cal. Dec. 6, 2010), adopted, 2011 WL 164536 (C.D. Cal. Jan. 13, 2011) (allegations that petitioner was uneducated, illiterate and indigent insufficient); Oetting v. Henry, 2005 WL 1555941 at *3 (E.D. Cal. June 24, 2005), adopted, 2005 WL 2000977 (E.D. Cal. Aug. 18, 2005) ("Neither an inmate's ignorance of the law nor pro se status are the sort of extraordinary events upon which a finding of equitable tolling may be based"; cf. Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (illiteracy and pro se status insufficient cause to avoid procedural default).
Petitioner also argues that his alleged mental illness entitles him to equitable tolling. Petitioner claims he has suffered and continues to suffer from "chronic mental illness" that purportedly prevented Petitioner from performing any legal research or timely preparing and filing the present Petition ("Motion to Appoint Counsel, etc.," p. 3).
In Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010), the Ninth Circuit held that eligibility for equitable tolling due to mental impairment requires a habeas petitioner to meet a two-part test:
(1) First, a petitioner must show his [or her] mental impairment was an "extraordinary circumstance" beyond his [or her] control, see Holland [v. Florida], 130 S.Ct. at 2562, by demonstrating the impairment was so severe that either
(a) petitioner was unable rationally or factually to personally understand the need to timely file, or
(b) petitioner's mental state rendered him [or her] unable personally to prepare a habeas petition and effectuate its filing.
(2) Second, the petitioner must show diligence in pursuing the claims to the extent he [or she] could understand them, but that the mental impairment made it impossible to meet the filing deadline under the totality of the circumstances, including reasonably available access to assistance. See id.
To reiterate: the "extraordinary circumstance" of mental impairment can cause an untimely habeas petition at different stages in the process of filing by preventing petitioner from understanding the need to file, effectuating a filing on his [or her] own, or finding and utilizing assistance to file. The "totality of the circumstances" inquiry in the second prong considers whether the petitioner's impairment was a but-for cause of any delay. Thus, a petitioner's mental impairment might justify equitable tolling if it 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. The petitioner therefore always remains accountable for diligence in pursuing his or her rights.
Bills v. Clark, 628 F.3d at 1099-1100 (footnote omitted).
Petitioner attaches to his declaration various alleged prison medical records from 2008, 2009 and 2010. The Court has reviewed those records, as well as the records lodged by Respondent in response to the Court's August 31, 2012 Minute Order. None of the documents supplied by Petitioner or lodged by Respondent predates 2000. The documents show that, from 2000 through the present, prison mental health professionals consistently diagnosed Petitioner as suffering from depression, mood disorder, post-traumatic stress syndrome and/or anti-social personality disorder. Petitioner periodically received counseling and medication, including Paxil and Prozac. The records also consistently show that, during encounters and interviews with prison mental health professionals, Petitioner generally was oriented, was able to communicate and understand, and did not exhibit impaired cognition. Petitioner often presented as friendly and ready to converse. Petitioner did not appear reluctant to request assistance; indeed one theme recurring over the years is Petitioner's frequently-expressed desire for a single cell. The earliest document, "Mental Health Interdisciplinary Progress Notes" dated August 9, 2000, records Petitioner's appearance, behavior, mood, speech, sleep, appetite, affect, cognition, insight and judgment as "WNL" (within normal limits). Many of the other documents also record Petitioner's behavior and cognition as "WNL."
Respondent has submitted a declaration of the custodian of records for the California Department of Corrections and Rehabilitation, Amalia Armenta, who states that the records lodged by Respondent are true copies of the records described in the Court's order. Thus, it appears that the Department of Corrections and Rehabilitation does not now have possession, custody or control of any mental health records of Petitioner predating 2000, if any such records ever existed.
Nothing in the documents submitted by Petitioner or lodged by Respondent suggests in any way that, at any time prior to the expiration of the limitations period on April 24, 1997, or thereafter, Petitioner suffered from any mental impairment rendering Petitioner unable rationally or factually to understand personally the need to file a timely federal petition. Nothing in the documents before the Court suggests in any way that, at any time prior to the expiration of the limitations period on April 24, 1997, or thereafter, Petitioner's mental state rendered him unable personally to prepare a federal habeas petition and to effectuate its filing. Indeed, records from 2003 suggest that Petitioner was doing legal research and intended to file a prison grievance (see "Mental Health Interdisciplinary Progress Notes," dated July 15, 2003, July 23, 2003, July 30, 2003, August 8, 2003 and August 12, 2003, contained in Respondent's Lodgment). Other records indicate that, in 2008, Petitioner feigned a suicidal ideation in order to secure a single cell, a rational, if dishonest, response to dissatisfaction with his cellmate (see "Mental Health Interdisciplinary Progress Notes," dated July 31, 2008; "Mental Health Treatment Plan," dated September 3, 2008).
Petitioner relies on "Psychiatrist's Patient Progress Notes," dated July 22, 2009, in which the doctor allegedly recorded Petitioner's Axis I diagnosis as "Mood Disorder NOS [not otherwise specified] (296.90) i R/O [rule out] Bipolar D/O NOS [disorder not otherwise specified]." At most this document shows that, in 2009, long after the statute of limitations had expired, a prison psychiatrist deemed it appropriate to "rule out" a bipolar diagnosis. The document does not suggest that any mental impairment, bipolar disorder or otherwise, prevented Petitioner from filing a timely federal petition prior to the expiration of the statute of limitations in April of 1997.
Additionally, and significantly, Petitioner's Court of Appeal habeas petitions filed in 1998 and 2008 did not cite any alleged mental impairment as a reason for delay. Rather, the 1998 petition stated that Petitioner was a layman and jailhouse lawyers recently had made Petitioner aware of the grounds for relief (see Respondent's Lodgment 3, p. 6). The 2008 Petition gave no explanation for the delay in filing (see Respondent's Lodgment 5, p. 6). It was not until Petitioner filed his third Court of Appeal petition in 2011 that Petitioner alleged that he suffered from a "severe mental illness," i.e., "bipolar" (see Respondent's Lodgment 7, p. & attachment).
Petitioner's 2008 Court of Appeal petition relied on the same exhibit on which Petitioner relies herein. As indicated above, the exhibit does not show Petitioner actually suffered from bipolar disorder, much less that any such alleged disorder prevented Petitioner from filing a timely petition.
Furthermore, Petitioner has not shown diligence, i.e., that his alleged mental impairment "made it impossible to meet the filing deadline under the totality of the circumstances, including reasonably available access to assistance." See Bills v. Clark, 628 F.3d at 1100 (citation omitted); see also Stancle v. Clay, ___ F.3d ___, 2012 WL 3667315, at *11-12 (9th Cir. Aug. 28, 2012). Petitioner states: "Ever since the expiration of my direct appeal process in the state courts, I have had other inmates research, prepare and assist me to file all post-conviction petitions, including the one currently at bar" (Petitioner's Declaration, ¶ 3). Petitioner evidently has been able to obtain inmate assistance, and provides no explanation why Petitioner could not have filed a timely federal petition with that assistance.
In sum, Petitioner has failed to show an entitlement to equitable tolling. The Petition is untimely.
RECOMMENDATION
For the reasons discussed above, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; (2) denying Petitioner's "Motion to Appoint Counsel/For Evidentiary Hearing Due to Mental Illness/Inability to Reply/Traverse"; and (3) denying and dismissing the Petition with prejudice.
3. Petitioner allegedly was not given notice of the disposition of evidence, as purportedly required by California Penal Code section 1417.7 (Ground Three);
10. The trial court allegedly violated the Constitution by assertedly preventing Petitioner's counsel from examining the coroner or calling a deputy coroner (Ground Ten); and