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Frazier v. Hedgepeth


September 11, 2008



Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In 1995, petitioner was convicted of first degree murder, and the jury found petitioner personally used a firearm in the commission of the murder. Petitioner was sentenced to twenty-nine years to life in prison, which included four years for the weapons enhancement. Respondent has moved to dismiss this action as barred by the one-year statute of limitations. See 28 U.S.C. § 2244(d).

Section 2244(d)(1) of Title 8 of the United States Code provides: 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.

28 U.S.C. § 2244(d)(1). Section 2244(d)(2) provides that "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" the limitations period. 28 U.S.C. § 2244(d)(2).

For purposes of the statute of limitations analysis, the relevant chronology of this case is as follows:

1. In January 1995, petitioner was sentenced to twenty-nine years to life in prison.

2. On May 22, 1995, petitioner appealed his conviction*fn1 and on September 11, 1996, the California Court of Appeal, Third Appellate District, affirmed the conviction. (Lodged Document 1.)*fn2

3. On May 12, 1996, petitioner filed a petition for writ of habeas corpus in the Court of Appeal, Third Appellate District.*fn3 Lodged Document 2. That petition was denied by order filed September 30, 1996. Lodged Document 2.

4. On October 21, 1996,*fn4 petitioner filed a petition for review*fn5 in the California Supreme Court. On November 26, 1996, that petition was denied without comment. Lodged Document 3.

5. On January 8, 2008, petitioner filed the instant federal habeas corpus petition.*fn6

A conviction is final for the purposes of the AEDPA statute of limitations at the expiration of the ninety day period for seeking certiorari to the United States Supreme Court. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). In the instant case, the California Supreme Court denied review on November 26, 1996. (Lodged Document 3.) The ninety day period for seeking certiorari ended on February 24, 1997. Thus, the statute of limitations began to run on February 25, 1997, and ran out on February 25, 1998, absent any tolling of the statute. Fed. R. Civ. P. 6(a) (excluding the day on which the period begins to run from the calculation of time).

Here, petitioner does not dispute the February 24, 1997 finality of direct review. Rather, petitioner contends he is entitled to equitable tolling. Petitioner filed his federal petition on January 8, 2008, almost ten years after the limitations period expired. Thus, the petition is time-barred absent equitable tolling for a substantial period of time.

The one-year limitation period "can be subject to equitable tolling" on an appropriate showing. Roy v. Lampert, 455 F.3d 945, 950 (9th Cir.2006) (citing (Beeler) at 1288). "Equitable tolling is applicable only 'if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.' Beeler, 128 F.3d at 1288(internal quotation marks omitted). These extraordinary circumstances must be 'the cause of [the] untimeliness.'

Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003)." Roy, at 950. Petitioner has the burden of demonstrating an entitlement to equitable tolling. See Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir.2005) (quoting Gaston v. Palmer, 417 F.3d 1030, 1034 (9th Cir.2005)). To meet this burden, petitioner must show that he pursued his " 'rights diligently . . . [and] that some extraordinary circumstance stood in [his] way.' " Roy, at 950 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807 (2005)). An inmate's denial of access to his legal materials can, in an appropriate circumstance, support equitable tolling of the limitation period. See Espinoza-Matthews, at 1072; see also Lott v. Mueller, 304 F.3d 918, 924 (9th Cir.2002).

Petitioner contends he is entitled to equitable tolling based on medical complications resulting from sickle cell anemia and the influence of pain medications on his mental faculties. Specifically, petitioner states he was sent to California Medical Facility in July of 1996 to undergo hip replacement surgery because he had developed aseptic necrosis of both hips. (Opp'n at 1.) Petitioner's right hip was replaced in late July, 1996. Petitioner was then confined to bed until his left hip was replaced in 1997. (Id.) However, during the left hip replacement surgery, his left sciatic nerve was damaged, which confined petitioner to a wheelchair until late 1998, when corrective surgery was performed. (Id.) Petitioner avers that during this time he was on high doses of narcotics because petitioner "stayed in severe pain." (Opp'n at 2.)

In 2004, petitioner was experiencing more pain in his left hip, and tests revealed petitioner had developed an infection in his prosthesis, requiring yet another surgery. (Opp'n at 2.) The old prosthesis was removed and an antibiotic spacer was put in to resolve the infection before the new appliance could be installed. (Id.) Petitioner went without a hip for about a year, until 2005, when the new prosthesis was put in. (Id.) Petitioner avers that after this surgery petitioner needed more narcotics and is presently on 120 mg of morphine every day, rendering him "disoriented and unable to argue the complexities of this case after [1996.]" (Id.)

Petitioner has provided 83 pages of medical records, most of which are medication administration records. (Docket No. 16.)

Respondent argues petitioner's contentions are belied by the record. On August 12, 2008, respondent lodged, inter alia, copies of social service histories from health record reports, docket sheets from United States District Court cases petitioner was prosecuting,*fn7 and a log of petitioner's inmate appeals. (Id.)*fn8 Respondent contends these records demonstrate petitioner has not suffered from mental incompetency or mental illness of any kind and that petitioner was well enough to diligently prosecute three federal lawsuits in this court in 2003, 2004 and 2005, and a steady stream of administrative appeals beginning in 2001 and continuing through 2008. (Lodged Documents F & G (36 administrative appeals).)

The records reflect that petitioner's avascular necrosis was diagnosed by x-ray on February 5, 1996. (Opp'n, Ex. 1 at 1.) Petitioner's history of present illness was described in Dr. Bozic's preoperative history and physical examination report:

[Petitioner] underwent bilateral staged total hip replacement in 1996 and 1997. His left hip did well until 2002 when he developed an abscess of the left hip. He was treated locally with irrigation and debridement and retention of the components. He has had severe pain in the left hip since that time. . . . [Petitioner] complains of severe pain in the left hip that limits his activities of daily living, as well as ambulation. [Petitioner] also states that at the time of his original hip replacement in the late 90s, his sciatic nerve was damaged, resulting in a foot drop on the left side. (Opp'n, Ex. 1 at 13.)

Petitioner's right hip was replaced in the 1996.*fn9 Petitioner's left hip was replaced on or about June 12, 1997, and he was discharged from the hospital on July 23, 1997. (Opp'n, Ex. 1 at 2.) Petitioner was prescribed Oxycodone for the pain. (Id. at 3.)

On December 13, 2002, petitioner was admitted to the hospital for his an infection to his left total hip replacement and was discharged on December 16, 2002. (Opp'n, Ex. 1 at 6.) On January 29, 2004, petitioner was admitted for post-left hip hardware removal and placement of antibiotic spacer. (Opp'n, Ex. 1 at 7.) On August 23, 2004, the spacer was removed and a new left hip appliance was put in. (Opp'n, Ex. 1 at 15.)

The records reflect that petitioner was prescribed various pain medications: Oxycodone, Demerol, Demerol with Vistaril, Demerol and Tylenol #3, and Morphine, throughout 1996 and 1998 and February 2002 through April 14, 2005. From February 7, 2007 through June 3, 2008 petitioner was prescribed primarily Morphine tablets by mouth. (Opp'n, Ex. 1 at 22-28, passim.)

However, petitioner has failed to demonstrate how these various procedures and pain medications prevented him from pursuing this case over the course of almost ten years. Indeed, the Licensed Clinical Social Worker who interviewed petitioner on February 3, 2004, noted petitioner "was feeling OK until 2002," when he developed the abscess in his left hip. (Lodged Document A.) Petitioner was not taking any psychiatric medications and denied depression or drug abuse. (Id.) He reported "his sleeping was not good due to pain." (Id.) The social worker described petitioner as alert, with no evidence of confusion, delusion or hallucinations, and ultimately concluded petitioner did not need a psychiatric consultation. (Id.)

On May 25, 2004, petitioner was interviewed by another social worker who reported petitioner had been hospitalized on May 20, 2004 due to severe left hip pain. (Lodged Document B.) Petitioner described his pain as very severe and they discussed ways to distract petitioner from the pain. (Id.) Petitioner reported he had been sleeping and eating well. (Id.) Petitioner "enjoys both reading and watching television." (Id.) The social worker concluded there was no need for a psychiatric consultation: it appears remarkable that [petitioner's] mental outlook is as good as it is. He has a great deal of psychological stamina and appears to be doing far better than many individuals would do under similar circumstances.

(Id.) Petitioner was screened for mental health issues in 2007 and none were found. (Lodged Document D.) On April 12, 2007, petitioner received a Comprehensive Accommodation Chrono noting that petitioner was medically unassigned (no job duties), walks with a cane and has wheelchair accommodations. (Lodged Document E.)

The court finds that petitioner has "made no factual showing of mental incapacity." Lawrence v. Florida, U.S. , 127 S.Ct. 1079 (2007).

It is clear that petitioner has suffered greatly from his sickle cell anemia, the osteonecrosis, a damaged sciatic nerve, and multiple operations required to address same. Petitioner's medical condition may have made it extraordinarily difficult to pursue his legal remedies in a timely fashion. See Calderon v. United States Dist. Court (Kelly), 163 F.3d 530, 540-41 (9th Cir.1998) (en banc), cert. denied, 526 U.S. 1060 (1999)*fn10 (applying equitable tolling where petitioner's mental incompetence rendered him unable to assist in his own defense); cf. Stoll v. Runyon, 165 F.3d 1238, 1242 (9th Cir.1999) (civil case applying equitable tolling where petitioner's condition hindered them from cooperating with counsel). Given the nature of petitioner's medical condition and the numerous operations required and the severe pain involved, the court would grant petitioner equitable tolling for the years 1996 through 1998, after repair of the damage to his sciatic nerve.

However, petitioner has made an insufficient showing for the periods 1999 through 2002, when the record reflects that he was doing well until 2002. Petitioner has not shown any efforts to request law library time or assistance in pursuing the instant claims during that time frame. The fact that he was capable of filing numerous inmate appeals during this time frame rebuts his claim that he was unable to address the instant claims.

While this court might also be inclined to grant equitable tolling for the period in 2004 when petitioner was having more operations, by 2004, the statute of limitations period had run. State habeas petitions filed after the one-year statute of limitations has expired do not revive the statute of limitations and have no tolling effect. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.2003); Jimenez v. Rice, 276 F.3d 478, 482 (9th Cir.2001). Thus, this court need not decide whether petitioner was entitled to equitable tolling for any period after 2002.*fn11

Because petitioner is not entitled to equitable tolling for the entire period, the instant petition is time-barred and must be dismissed.

In accordance with the above, IT IS HEREBY RECOMMENDED that respondent's April 11, 2008 motion to dismiss be granted. (Docket No. 11.)

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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