The opinion of the court was delivered by: Peter C. Lewis U.S. Magistrate Judge United States District Court
ORDER: GRANTING MOTION TO SEAL DOCUMENTS (Docs. 11 and 20); DENYING MOTION TO APPOINT GUARDIAN AD LITEM (Doc. 16); and SETTING BRIEFING SCHEDULE.
On January 1, 2009, Petitioner Joseph Hilton McDonald ("Petitioner"), a state prisoner proceeding pro se, filed a Second Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition"). (Docs. 15 and 16.) Through the assistance of a fellow prisoner, Petitioner also filed a renewed motion requesting a guardian ad litem. (Doc. 16.) Respondent filed a response requesting that the Court deny Petitioner's motion based on two exhibits, Exhibit A and Exhibit 1, containing Petitioner's medical history.*fn1 (Docs. 11 and 20.)
As set forth below, the Court DENIES the motion to appoint a guardian ad litem and SETS the briefing schedule for Petitioner's Second Amended Petition.
Petitioner was convicted of three counts of first degree burglary (Cal. Pen. Code, §§ 459, 460); attempted first degree burglary (§§ 459, 460, 664); petty theft with a prior (§§ 484, 666); possession of stolen property (§ 496(a)); and possession of a firearm by a felon (§12021(a)(1)). (Doc. 1-3, at 26.) Petitioner filed a direct appeal to the California Court of Appeal, arguing that reversal was required because the photographic lineup used to identify him was impermissibly suggestive; because the court erred in admitting impeachment evidence; because of ineffective assistance of counsel in failing to object to the impeachment evidence; because an enhancement should have been stricken; and because the abstract of judgment needs to be corrected. (Id. at 27.) The state appellate court found merit in the last two contentions but otherwise affirmed the judgment. (Id.) Petitioner then filed a Petition for Review in the California Supreme Court, which was summarily denied on March 28, 2007. (Doc. 1-3, at 49.) The judgment became final on June 27, 2007, and AEDPA's one-year statute of limitations expired on June 27, 2008.
Petitioner filed the Petition together with a request to proceed in forma pauperis ("IFP")in the United States District Court for the Central District of California on April 1, 2008. (Doc. 1.) Thereafter, the case was transferred to the United States District Court for the Southern District of California on April 9, 2008. In his Petition, Petitioner presented ten grounds for judicial review. This Court denied the IFP motion and dismissed the Petition with leave to amend. (Doc. 3.) On May 19, 2008, Petitioner filed his FAP, presenting two grounds for federal relief: 1) that the trial court erred in allowing an impermissibly suggestive lineup photograph used to identify the Petitioner; and 2) that the trial court erred in allowing use of letters to impeach his witness in violation of Brady v. Maryland, 373 U.S. 83 (1963), and Evidence Code section 352. (Doc. 4, at 6-7.) Petitioner filed an IFP, which was granted by this Court on May 21, 2008. (Doc. 7.) On July 7, 2008, Petitioner filed a motion to stay proceedings while Petitioner exhausted his remedies in state court and a motion to appoint a guardian ad litem. (Doc. 10.) The Court granted the motion to stay and denied the motion to appoint a guardian ad litem as untimely. (Doc. 13.)
Following exhaustion in the California Supreme Court, Plaintiff filed his Second Amended Petition on January 12, 2009. (Docs. 15 and 16.) In it, he makes a total of 11 claims: 1) that the trial court erred in allowing use of letters to impeach his witness in violation of Brady v. Maryland, 373 U.S. 83 (1963), and Evidence Code section 352; 2) that there was insufficient evidence to convict him re: the Havern burglary; 3) that there was insufficient evidence to convict him re: the Borrego burglary; 4) that his consecutive sentence for his ex-felon in possession of a firearm conviction was in error and in violation of Penal Code section 654; 5) that the admission of inflammatory gang evidence violated his due process rights; 6) that his right to due process was violated due to the prosecutor's cross examination of defense witnesses; 7) that his rights were violated due to the revelation of his incarceration status to the jury by the prosecutor and the trial judge; 8) ineffective assistance of counsel; 9) that errors resulting from ineffective assistance of defense counsel contributed to the cumulative effect of prosecutorial misconduct in the use of said errors; 10) that the trial court failed to provide sua sponte instruction regarding the lack of any substantial evidence connecting Petitioner with the crimes; and 11) that the trial court erred in not conducting a Marsden hearing and not reappointing Public Defender Stacy Gulley. (Docs. 16, 16-2, 16-3, 16-4.)
Petitioner also asked the Court to appoint a guardian ad litem because he contends that he is mentally incompetent, that he is unable to maintain the petition on his own without assistance due to having the intellectual capacity of a first grader, and that being on the antipsychotic drug Abilify to treat hearing voices inside his head renders him incapable of understanding his legal options. (Doc. 16, at 6-7.) In support of this motion, Petitioner submitted the declaration of fellow prison inmate M. Lindsey, a school-trained paralegal, who stated that Petitioner was incapable of litigating his own case. (Doc. 16, at 10-11.) Petitioner also submitted his own declaration stating that he is under the care of a psychiatrist and that he is mentally unstable and incapable of litigating his case. (Id. at 8.) Respondent argued that Petitioner failed to produce substantial evidence of incompetence sufficient to warrant an incompetency hearing and appointment of a guardian ad litem. (Doc. 20.) Respondent filed two large documents under seal that contain Petitioner's medical records received from California State Prison, Los Angeles County. (Doc. 11, Exhibit 1; Doc. 20, Exhibit A.)
Based on information residing in Exhibit 1 which was submitted in Petitioner's original motion for guardian ad litem, Respondent argued that although Petitioner claimed that he has a low reading level, the mental health interdisciplinary progress notes indicate otherwise. For example, on February 14, 2008, Petitioner was removed from Developmentally Disabled Placement (DDP) status because he had been observed reading, writing, typing, and working on legal papers and "revealed [to interviewer B. Betz, Ph.D] vocabulary, knowledge base, and verbal reasoning skills well in excess of DDP qualifying inmate." (Doc. 11, Exhibit 1, at 288.) In the decision, Dr. Betz noted that Petitioner received a high school diploma without special education classes, "worked culinary at RJDCF,  had a driver's license, and  occupied a 'position of leadership' in his controlling case." (Id. at 288, 289.) His psychologist noted that Petitioner, who had in the past at least one episode of schizophrenia, had appropriate effect, good insight and judgment, oriented, normal speech, no suicidal or homicidal ideation, and no evidence of acute psychosis. (Id. at 343.) Respondent also submitted as Exhibit A Petitioner's mental health records updated since the original motion for guardian ad litem was filed. (Doc. 20, Exhibit A.) The updated records indicated that Petitioner had been prescribed Abilify (an antipsychotic) on January 28, 2009 and subsequent times thereafter. (Id. at 1.) According to his psychologist following the start of treatment, Petitioner "appeared less sad and confused than prior meetings. His eyes and face were clear. He made appropriate eye contact. His speech was soft and conversation reciprocal." (Id. at 5.) However, the psychologist noted that he remained depressed and "appear[ed] to be suffering from the sequelae of trauma he reportedly experienced earlier in his life."
) Petitioner nonetheless assured the psychologist, "I'll be alright." (Id.) The following week, Petitioner was seen by a psychiatrist, Dr. Robert Elstad. (Id. at 5.) Petitioner asked him, "Can I get some Abilify for my depression?" (Id. at 6.) Petitioner also said that he feels depressed each day lasting until dinnertime. (Id.) Dr. Elstad explained to him that Abilify is not an antidepressant and noted that he was cooperative, rational, personable, well groomed, and more animated with no tremor. (Id.) His symptoms were described as "mild." (Id.) He diagnosed him with a psychosis not otherwise specified and continued his prescription of Abilify and added Prozac, an antidepressant. (Id.) The week after that, Petitioner attended a prison program activity on understanding behavior. (Id. at 3.) Traci Springs, a licensed psychologist, noted that he "attended and participated appropriately in group." (Id.)
The Ninth Circuit has held that where a petitioner submits "substantial evidence" of his incompetence, the District Court should hold a competency hearing to determine whether a petitioner is "competent under an appropriate standard for habeas petitioners." Allen v. Calderon, 408 F.3d 1150, 1153-54 (9th Cir. 2005). Although the Ninth Circuit did not specify what constitutes "substantial evidence" of incompetence, it did give some guidance. In Allen, the petitioner submitted his own sworn declaration and a declaration from a fellow inmate which stated that Allen was mentally impaired and did not understand the Court's orders. Id. at 1151. He also submitted a letter from a prison psychiatrist who stated that Allen was in the Enhanced Outpatient Program at the prison, had been "diagnosed with Chronic Undifferentiated Schizophrenia and [was] taking two psychotropic medications." Id. at 1151-52. In support of a motion for appointment of counsel filed approximately two weeks later, the petitioner explained that he suffers from a "'debilitating mental illness that requires a course of treatment that includes the use of various psychotropic medications'" and that "[h]is mental condition and the side-effects associated with the prescribed medications severely [hinder] his ability to comprehend or correctly respond to the determinations and Orders made by the Court.'" Id. at 1152. The Ninth Circuit concluded that this was sufficient to require the District Court to make a determination as to Allen's competency by appointing counsel and conducting a competency ...