Opinion
CR No. 92-173-FR, Civil No. 99-1093-FR
September 18, 2000
Kristine Olson, United States Attorney and Kent S. Robinson, Assistant United States Attorney, Portland, Oregon, Attorneys for Plaintiff.
Noel Grefenson, Storkel Grefenson, P.C., Salem, Oregon, Attorneys for Defendant.
OPINION AND ORDER
The matter before the court is the petition of the defendant, Ernest J. Hill, III, under 28 U.S.C. § 2255 to vacate, set aside or correct the sentence imposed by this court (#157).
BACKGROUND
On October 21, 1994, this court sentenced defendant Hill to serve a term of 70 months in prison. No appeal was filed from the judgment of conviction.
On July 30, 1999, defendant Hill filed a motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence on the following grounds: 1) that his right to adequate and effective assistance of counsel was violated when trial counsel failed to move the district court for dismissal of the charge against him for violation of his right to a speedy trial; 2) that his right to adequate and effective assistance of counsel was violated when trial counsel failed to adequately prepare a defense through analysis of discovery materials and the interview of witnesses; 3) that his right to adequate and effective assistance of counsel was violated when trial counsel failed to adequately assess whether he was suffering from a mental disease or defect which precluded him from appreciating the criminality of his conduct; 4) that his plea of guilty was neither knowing nor voluntary by virtue of his mental disease or defect or his severe personality disorders; and 5) that his right to adequate and effective assistance of counsel was violated when trial counsel failed to move the court for a downward departure on the basis of his diminished mental capacity.
The government opposes defendant Hill's petition under 28 U.S.C. § 2255 on the grounds that the petition is barred by the statute of limitation pertaining to Section 2255. In the alternative, the government contends that there is no merit to defendant Hill's claims of inadequate assistance of counsel or diminished mental capacity.
ANALYSIS
The Antiterrorism and Effective Death Penalty Act of 1966, which amended the provision of 28 U.S.C. § 2255, provides, in part, that "[a] 1-year period of limitation shall apply to a motion under this section." The petition before this court was filed more than two and one-half years after the judgment of conviction and more than one year after the effective date of the applicable provision of law cited above. However, in Calderon v. United States Dist. Court for Cent. Dist. of Cal., 163 F.3d 530 (9th Cir. 1998), the United States Court of Appeals for the Ninth Circuit stated: "When a putative habeas petitioner's mental competency is at issue, and the record discloses a genuine basis for concern, it is appropriate to toll the AEDPA's time bar until a reasonable period after the district court makes a competency determination." Id. at 541.
In an opinion and order filed on November 29, 1999, this court found that the record of the guilty plea submitted by the government disclosed a genuine basis for concern about defendant Hill's mental competency and declined to dismiss the petition under section 2255 at that stage as time-barred. Both defendant Hill and the government have submitted further evidence and argument addressing the claim by defendant Hill of diminished mental capacity.
Upon review of the record in this case, the court concludes that there is no evidence to support the claim by defendant Hill of diminished mental capacity and no grounds upon which to toll the time bar under the AEDPA.
Defendant Hill was examined by Dr. Art Norman in April and May of 1993, and a report was provided to the court at the time defendant Hill entered a plea of guilty in 1994. Dr. Norman clearly stated that defendant Hill was competent to proceed. Dr. Norman's conclusion was unrebutted at that time and has remained unrebutted.
The record further discloses that after this court sentenced defendant Hill, he once again committed crimes identical to those committed in the State of Oregon and was prosecuted further in the Southern District of Illinois for bank fraud and money laundering.United States v. Hill, Cr. No. 98-40125-02-GPM (Southern District of Illinois). Defendant Hill raised issues regarding his mental health in the Illinois prosecution. Defendant Hill was evaluated at the Federal Medical Center at Springfield, Illinois in August of 1999 and found to be suffering from no mental illness or psychotic disorder. After this evaluation, defendant Hill stipulated when he was prosecuted in the State of Illinois that he was competent.
This court has thoroughly examined any "genuine basis for concern" over defendant Hill's competency." See _Calderon, 163 F.3d at 541. The court finds that no evidentiary hearing is required, and that defendant Hill has always been and remains competent to proceed.
CONCLUSION
The petition before this court was not filed within the time limits provided by the AEDPA. Even if this action were not barred by the time limits set by the AEDPA, this court would dismiss the petition on the grounds that there is no merit to defendant Hill's claims of ineffective assistance of counsel, violation of any aspect of the Speedy Trial Act, or diminished mental capacity. The record fully establishes that defendant Hill has had the assistance of competent counsel and has had his claims of mental disorders competently examined.
IT IS HEREBY ORDERED that the petition of the defendant, Ernest J. Hill, III, under 28 U.S.C. § 2255 to vacate, set aside or correct the sentence imposed by this court (#157) is DENIED.