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Green v. Harrison

January 23, 2008

DENAIL SHANE GREEN, PETITIONER,
v.
CHARLES M. HARRISON, WARDEN, (4-1), RESPONDENT.



The opinion of the court was delivered by: Hon. Leo S. Papas U.S. Magistrate Judge

ORDER GRANTING PETITIONER'S REQUEST FOR EQUITABLE TOLLING OF THE STATUTE OF LIMITATIONS ORDER FOR FURTHER BRIEFING REGARDING PETITIONER'S REQUEST FOR STAY AND ABEYANCE (3-1)

On July 25, 2005, Petitioner, proceeding pro se,*fn1 filed a Request for Equitable Tolling Because of Mental Illness (hereafter "RET") and a Request for Stay and Abeyance of his Petition. Request for Equitable Tolling

In Petitioner's RET, Petitioner states that he did not file his Petition within AEDPA's one-year statute of limitations because extraordinary circumstances beyond his control made it impossible for him to file a timely petition. Specifically, Petitioner claims that he suffers from serious mental illnesses and is unfamiliar with the legal system, such that another inmate prepared and filed his Petition for Writ of Habeas Corpus. (RET at 2-3)

Direct review of Petitioner's conviction concluded on May 29, 2001, ninety days after the period in which to file a Petition for Writ of certiori with the United States Supreme Court expired. See 28 U.S.C. §2244(d)(1)(A); Bowen v. Roe 188 F.3d 1157, 1159 (9th Cir. 1999)

On July 15, 2005, Petitioner filed a Petition for Writ of Habeas Corpus with the San Diego Superior Court. (Respondent's Lodgment No. 4) On September 7, 2005, the Superior Court denied the Petition. (Respondent's Lodgment No. 5)*fn2

As previously noted in this Court's Order of June 7, 2006, the statute of limitations is not tolled from the time a final decision is issued on direct state appeal and the time the first state collateral challenge is filed because there is no case "pending" during that interval. Nino v. Galaza 183 F.3d 1003 (9th Cir. 1999) cert. denied 529 U.S. 1104 (2000)

Therefore, between May 30, 2001 (the day after direct review of Petitioner's conviction ended) and July 15, 2005 (the date Petitioner filed a Petition for Writ of Habeas Corpus with the San Diego Superior Court), the statute of limitations was not tolled because there was no case pending during that time period.

In order for Petitioner to show that he is entitled to equitable tolling of the statute of limitations due to his mental illnesses, Petitioner must present to the Court evidence of his mental illnesses during the time period that the statute of limitations was not tolled (May 30, 2001 to July 15, 2005).*fn3

After an attorney was appointed to represent Petitioner, the Court allowed Petitioner's counsel to file Supplemental Briefing regarding Petitioner's entitlement to equitable tolling of the statute of limitations on his Petition. The Court also allowed Respondent to reply to Petitioner's Supplemental Briefing. On November 21, 2006 and December 28, 2006 respectively, Petitioner and Respondent filed the Supplemental Briefing and Reply to the Supplemental Briefing.

From January 25, 2007 to May 24, 2007, the Court conducted numerous status conferences with counsel regarding obtaining further review of Petitioner's medical/psychiatric records for the time period from May 30, 2001 to July 15, 2005.

On August 3, 2007, Petitioner's counsel submitted to the Court a psychologist's report that analyzed Petitioner's medical/psychiatric records during the aforementioned time period.*fn4

On September 4, 2007, the Court conducted another status conference in which it allowed Petitioner and Respondent to file supplemental briefs regarding Plaintiff's entitlement to equitable tolling of the statute of limitations in light of the August 3, 2007 psychologist's report.

On November 1, and December 20, 2007, Respondent and Petitioner respectively filed Supplemental Briefs. On December 28, 2007, Respondent filed a Reply to Petitioner's Supplemental Brief.

Petitioner argues that due to his mental illnesses, his Petition is entitled to equitable tolling of the statute of limitations. Respondent argues that the Petition is not entitled to equitable tolling of the statute of limitations because Petitioner has failed to present sufficient evidence to show that his mental condition from ...


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