The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Petitioner, while serving a state prison sentence on other charges, was convicted of possession of a sharp instrument by a state prisoner in Sacramento County Superior Court and sentenced in 2002, pursuant to the three-strikes law, to a term of 25 years to life. Petitioner raised, under 28 U.S.C. § 2254 in his original pro se petition, primarily trial court error claims, which he filed in this court on October 10, 2006.*fn1 *fn2 There is no dispute that petitioner's federal habeas filing is untimely under the AEDPA statute of limitations. Docket # 24, p.2. The record demonstrates that petitioner's conviction became final on January 27, 2004, ninety days after the state supreme court denied petitioner's petition for review on direct appeal on October 29, 2003, the statute of limitations began to run the next day, on January 28, 2004, and petitioner had one year, until January 27, 2005, to file a timely federal petition, absent applicable tolling. Petitioner filed one state habeas petition on November 15, 2004, which was denied on October 12, 2005. At the time of filing his single state court habeas petition, 291 days of the statute had run, leaving 74 days to run after the October 12, 2005, denial for petitioner to file in federal court, or until December 25, 2005 (or the day after in view of the holiday). However, as noted, petitioner did not file the instant petition until October 10, 2006, after a lapse of 362 additional days, making it untimely under the statute by 288 days, or, as petitioner concedes, by some nine and one-half months. See Docket # 44, pp. 3-4.
On respondent's motion to dismiss the instant habeas corpus petition as barred by the AEDPA one-year statute of limitations, this court held an evidentiary hearing on July 16, 2008, to determine whether petitioner was entitled to equitable tolling due to mental deficiencies during the limitations period. The undersigned, in a detailed analysis which followed the initial evidentiary hearing on the question, determined that petitioner had not met his burden to show entitlement to equitable tolling for the belated filing of his federal habeas petition based on his mental deficiencies. When the petition was dismissed on the ground that petitioner had not demonstrated that his mental deficiencies amounted to an extraordinary circumstance rendering him incapable of filing a timely petition, petitioner appealed and the Ninth Circuit reversed and remanded the case, tasking this court with applying a newly articulated two-part test to determine eligibility for equitable tolling based on mental impairment. See Bills v. Clark, 628 F.3d 1092, 1099-1100 (9th Cir. 2010).
Following the remand, a second evidentiary hearing, to obtain supplemental information was held on the question of equitable tolling for petitioner, was held in this case on April 18, 2012, wherein petitioner remained represented by his appointed counsel, Marylou Hillberg, and Robert Gezi again appeared on behalf of respondent. In the published decision decision, supra, a Ninth Circuit panel set forth that "eligibility for equitable tolling due to mental impairment requires the petitioner to meet a two-part test:"
1) First, a petitioner must show his mental impairment was an "extraordinary circumstance" beyond his control, see Holland, 130 S.Ct. [2549 ]at 2562 [(2010)], 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 unable personally to prepare a habeas petition and effectuate its filing. [Footnote 2--see below]
2) Second, the petitioner must show diligence in pursuing the claims to the extent he 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.
Bills v. Clark, 628 F.3d 1092, 1099-1100 (9th Cir. 2010) [emphasis in original].
At footnote 2, the panel clarified that, under the first prong, the required elements are broader, that is, disjunctive rather than conjunctive, stating:
The magistrate judge stated a habeas petitioner must show "he was unable by reason of mental defect to understand his need to timely file a habeas petition and unable to take steps to effectuate that filing." ([E]mphasis added). Under our formulation, a petitioner would be entitled to equitable tolling if he could show either of those conditions were met: either he did not understand his need to timely file or his mental impairment made him unable to take steps to effectuate that filing. In either case, if the mental impairment is so severe that it causes the untimely filing, the petitioner is entitled to equitable tolling. [Emphasis in original.]
The Ninth Circuit stated that the record did not address whether petitioner had been diligent in seeking assistance or whether there was any assistance reasonably available to him. "The court should examine whether the petitioner's mental impairment prevented him from locating assistance or communicating with or sufficiently supervising any assistance actually found." Bills v. Clark, 628 F.3d at 1101.
Request for Judicial Notice
Petitioner has asked the court to take judicial notice of the following: 1) the Armstrong v. Davis court-ordered remedial plan implemented by the California Department of Corrections and Rehabilitation (CDCR) appended as Exhibit A (formerly Armstrong v. Brown and Armstrong v. Wilson, 942 F. Supp. 1252 (N.D. Cal. 1996); 2) Ex. B, the Clark v. [State of] California, 123 F.3d 1267 (9th Cir. 1997), remedial plan implemented by CDCR; 3) Ex. C, Findings of Fact and Conclusions of Law in Clark v. California, No. 3:96-cv-1486 CRB (N.D. Cal. Sept. 16, 2010), subsequently authored by Judge Breyer at docket # 500; 4) Ex. D, expert declaration of Nancy Cowardin,*fn3 referenced in preceding findings of fact; 5) Ex. E, as an accurate true copy of the Sacramento County Superior Court, charging petitioner with possession of a sharp weapon while incarcerated and alleging a prior child molestation conviction as one of petitioner's strike priors. See docket # 76.
Under Fed. R. Evid. 201(b), a court may take judicial notice of a fact not subject to reasonable dispute, either because the fact is generally known within the territorial jurisdiction of the trial court or because the fact is capable of accurate and ready determination from sources whose accuracy cannot be reasonably questioned. Pursuant to Fed. R. Evid. 201(c), a court may, on its own, take judicial notice of an adjudicative fact or "must take judicial notice if a party requests it and the court is supplied with the necessary information."
Except as to petitioner's Ex. E -- the information filed in Sacramento County Superior Court, respondent objects to judicial notice being taken of the petitioner's exhibits, i.e., those attached to the request as Exs. A-D. Docket # 78. Respondent argues that judicial notice is being sought for facts that are irrelevant to the question of equitable tolling at issue and is therefore inappropriate, citing Ruiz v. City of Santa Maria, 160 F.3d 543, 548 n. 13 (9th Cir. 1998) (denying request for judicial notice of election results in part because the results not relevant for appellate issue); Turnacliff v. Westly, 546 F.3d 1113, 1120 n. 4 (9th Cir. 2008) (judicial notice of irrelevant U.S. Treasury records denied; Flick v. Liberty Mut. Fire Ins. Co., 205 F.3d 386, 39 n. 7 (9th Cir. 2000) (denying request for judicial notice of historical statistics not relevant to an appeal issue). Respondent also contends that petitioner has not met his burden to show the facts are properly the subject of judicial notice, citing Hurd v. Garcia, 454 F. Supp.2d 1032, 1054-55 (S.D. Cal. 2006) (burden on party requesting judicial notice to persuade judge "that the fact is a proper matter for judicial notice" [internal citation omitted]). Respondent avers that petitioner has failed to establish that facts within the documents at Exhibits A through D are not subject to reasonable dispute, noting, e.g., that the report at Ex. D, was generated by an expert witness who was retained and paid by a party to a lawsuit and that petitioner has not demonstrated that the opinions and alleged facts therein are not reasonably disputable. Respondent also posits that judicial notice of the truth of a court's findings and conclusions in another case is not appropriate.
While documents that are public records may be judicially noticed for the purpose of showing the occurrence of a judicial proceeding that a particular document was filed in separate court case, but judicial notice for the truth of the findings of facts from another case is not appropriate. Wyatt v. Terhune, 315 F.3d 1108, 1114 n. 5 (9th Cir. 2003) ('[f]actual findings in one case ordinarily not admissible for their truth in another case through judicial notice"); Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (while court may take judicial notice of "matters of public record," it may not take judicial notice of any fact "subject to reasonable dispute"); United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) ("a court may take notice of another court's order only for the limited purpose of recognizing the 'judicial act' that the order represents or the subject matter of the litigation").
To the extent petitioner asks for judicial notice of Ex. A, Armstrong v. Davis court-ordered remedial plan and Ex. B, the Clark v. California, remedial plan, both implemented by CDCR, the court finds that petitioner has failed to meet his burden to show the relevance of these documents to the question before the court. In that regard, this court's review of the case docket shows a stipulation by counsel for both parties to the statement that, while incarcerated in CDCR, petitioner "does not have a history as being a designated person for services pursuant to Armstrong v. Wilson or Clark v. California." See docket # 72. This makes the relevance of these remedial plans even more obscure to the undersigned. In addition, respondent is correct that petitioner does not make clear the source of the copies of the plans and thus fails to authenticate them or to verify any official source. As to Ex. C, the court will take judicial notice of the Judge Breyer's Findings and Conclusions of Law in Clark v. California, No. 3:96-cv-1486 CRB (N.D. Cal. Sept. 16, 2010), but only on the basis that a court may take judicial notice of court records, Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994); MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980), and not for the truth of the matter therein asserted. As to Ex. D, the report of an expert witness retained by the plaintiff class in Clark v. California, No. 3:96-cv-1486 CRB, petitioner neither demonstrates the relevance of the report or that it contains facts that could not reasonably be disputed. The court does take judicial notice of Ex. E, which is part of the record of petitioner's criminal conviction at issue in this case.
The question before the court on remand is whether petitioner is entitled to equitable tolling for any of the time from the date of the denial of his state Supreme Court petition on October 12, 2005 (at which point there were still 74 days to run on the statute) until the filing of the instant petition on October 10, 2006. Petitioner claims entitlement to equitable tolling for that entire period. Docket # 24, p. 2. Therefore, the court must determine precisely whether petitioner is entitled to equitable tolling at any period between October 12, 2005, and October 10, 2006,*fn4 or for the entire period, being mindful that equitable tolling is only appropriate during the delay caused by circumstances beyond a petitioner's control. Corjasso v. Ayers, 278 F.3d 874, 879 (9th Cir. 2002).*fn5 Petitioner's claim to entitlement to equitable tolling is based on his contentions that he is unable to read and write, suffers from neurological deficits, has a borderline to mildly retarded level of intelligence and a concurrent psychosis, and because assistance was not available to him.*fn6 See Bills v. Clark, 628 F.3d at 1094.
On remand, as noted above, the Ninth Circuit set forth a two-part test as the standard for determining equitable tolling eligibility arising from mental impairment:
(1) First, a petitioner must show his mental impairment was an "extraordinary circumstance" beyond his control, see Holland, 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 unable personally to prepare a habeas petition and effectuate its filing. [Footnote 2 omitted]
(2) Second, the petitioner must show diligence in pursuing the claims to the extent he 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.
Bills v. Clark, 628 F.3d at 1099-1100 [emphasis in original].
The availability of assistance is an important element to a court's diligence analysis. For example, if prison officials or even other prisoners were readily available to assist Bills in filing his habeas petition but Bills refused to accept their assistance, a court could conclude Bills may not have been diligent in pursuing his claims such that he is entitled to equitable tolling. That is not to say a prisoner fails the diligence requirement for refusing jailhouse assistance. It is only part of the overall assessment of the totality of circumstances that goes into the equitable determination. Thus, in many circumstances, the existence of such help would be highly relevant to the question of whether a petitioner's mental condition made it impossible to file a timely petition. But the availability of jailhouse assistance could also cut the other way. If legal help is available only because a prisoner has to resort to bribery or succumb to extortion, and a prisoner does not do so, a court would not find a lack of diligence. Here it is unclear what assistance Bills had and how that assistance, if any, bore on his ability to meet the filing deadline.
Facts Determined at First Evidentiary Hearing
The undersigned repeats those facts which he found at the first evidentiary hearing, as such facts play a part in the ultimate decision here.
In testing and evaluation, two psychologists have found that petitioner has a below average intellectual capacity with very limited verbal skills, reading at a second grade level, as well as difficulty with math. Opp., Ex. B, Shawn Johnston, Ph.D., letter dated 12/03/01; Ex. E, Declaration of John S. Miller, Ph.D (petitioner's expert). A third psychologist found that petitioner's language usage and content was in the range of low average to borderline. Opp., Ex. B, Letter of John Alan Foster, Ph.D., dated 11/30/01. [FN 5]*fn7 Dr. Foster states that petitioner was able to
count backwards and do simple math calculations (addition/subtraction), although petitioner would or could neither count forward nor backward for Dr. Johnston. Both Drs. Johnston and Foster found petitioner oriented to person, place and time. Dr. Johnston found petitioner possessed some abstract thinking capacity when he was able to interpret two simple proverbs, but Dr. Foster found petitioner had difficulty in explaining the meaning of proverbs. To Dr. Johnston petitioner denied he was physically abused by his mother and her boyfriends, but petitioner told Dr. Miller that he and his siblings had been subjected to beatings as children. Dr. Johnston found, at the time of his evaluation, that the petitioner was suffering "from a crack cocaine dependency disorder, an underlying antisocial personality disorder, and a possible schizophrenic disorder," noting that petitioner told him that he heard voices, even though he was receiving psychiatric medication at that time. Opp., Ex. B, p. 4. There appeared to be some question for Dr. Johnston as to the genuineness of the auditory hallucinations to which petitioner attested (which hallucinations he also reported to Dr. Foster and which Dr. Foster noted were included as reported symptoms in his prison medical record), but even assuming that petitioner was experiencing such hallucinations, Dr. Johnston nevertheless found petitioner to be competent to proceed to trial, concluding, after determining, inter alia, that petitioner understood the roles of the "various judicial actors," that: "even though this defendant undoubtedly has a plethora of significant psychological problems, he most definitely appears to understand the nature of the charges and proceedings against him and is capable of working with his attorney in preparing a rational defense in his case. He is competent." Id., at 4-5. While at the evidentiary hearing, petitioner's expert, Dr. Miller, pronounced petitioner to be "severely disabled," he expressly did not dispute Dr. Johnston's report and findings, although he questioned some of Dr. Foster's evaluation. See [First] Evidentiary Hearing. Dr. Foster noted in his 2001 letter that prison medical [records] indicated that he had been treated for "a bipolar condition and psychotic disorder due to head trauma/alcohol dependence" and was prescribed Divalproex and Risperidone by a psychiatrist. Opp., Ex. B. Dr. Foster noted that the medical records also indicated that petitioner was in the CCCMS [FN 6]*fn8 program, was regularly seen by psychiatric staff, but was not participating in treatment groups. Petitioner evidently also told Dr. Foster that he had received a head injury in a vehicle accident at nineteen or twenty years of age, and that he had used alcohol, marijuana and cocaine for many years from his early youth. Dr. Miller reports that petitioner told him he had used alcohol since he was a kid, but was not able to say at what age he began, while Dr. Foster reported that petitioner told him that he began drinking at age ten. Opp. Ex. B, Ex. E., p. 5. [FN 7]*fn9 Dr. Miller reported that petitioner informed him that he had had numerous alcohol related blackouts; had used cocaine since the mid-eighties until his present incarceration and also had smoked it; and used methamphetamines even while in prison; had once tried heroin; and had taken many pills, including Valium and Qualudes. Opp., Ex. E, p. 5.
There is some confusion as to petitioner's educational background: Dr. Johnston reported that petitioner said he graduated from high school in the California Youth Authority (CYA) in 1988, and Dr. Miller also reports that his highest level of education was his CYA high school graduation, while Dr. Foster states that petitioner attended both public high school and school in CYA, but told him he graduated, June of 1988, from Castlemont High School, after which he completed one unidentified class at Los Modanos College. Opp., Ex. B; Ex. E, p. 5. Dr. Miller adds that petitioner told him that he attended special education classes throughout his education, but petitioner was apparently unable to submit records to clarify his educational background, an omission respondent has noted.
Dr. Miller rendered his evaluation of petitioner's mental/intellectual capabilities and limitations after meeting with him and giving him tests more recently and, evidently, for a significantly more extended period of time than Drs. Johnston and Foster. See [First] Evidentiary Hearing & Opp., Ex. E. Dr. Miller testified to spending 9-10 hours on each of two days with petitioner for the purpose of evaluating petitioner's cognitive capabilities, limits and disabilities, on November 15-16, 2007. Id. Whereas petitioner evidently did not report visual hallucinations in the earlier assessments referenced above, to Dr. Miller he reported both auditory and visual hallucinations. Opp., Ex. E, p. 3. Dr. Miller found petitioner oriented to person, place and situation but not well-oriented to time as to the day of the week and month. Petitioner was unable to subtract serially 7s or 3s and unable to spell "world" backwards or forwards. Petitioner reported to Dr. Miller that his mother had died in 1999 and also told him, in contrast to what he had reported to Dr. Johnston, that he and his siblings "used to get beat up all the time." Id. at 4.
In petitioner's medical history, in addition to noting petitioner's head trauma in his twenties from a motor vehicle accident, Dr. Miller also reports petitioner's psychiatric/mental health history from prison medical records dating back to 1997. In August of 1997, petitioner was evaluated as having perceptions "positive for auditory hallucinations," having "persecutory delusions" and poor judgment and insight. The "diagnostic impression offered" referenced "Psychotic Disorder NOS and Antisocial Personality Disorder" with a global assessment function (GAF) score of 55. Petitioner was found to be appropriate to receive the CCCMS level of care. Opp., Ex. E, p. 7. It was nevertheless noted that while his speech was observed to be rapid at times "his appearance, behavior, mood, intellectual functioning, and speech were all considered to be within normal limits...." Id.
On October 20, 1997, the mental health evaluation noted petitioner's admission to a psychiatric hospital in 1990 and 1993 (this contrasts with a mental health evaluation conducted on June 19, 2003, wherein petitioner was noted to have had no history of admission to a psychiatric hospital), found his perceptions to be positive for both visual and auditory hallucinations, noted a history of substance abuse and mental health problems. Opp., Ex. E, pp. 7, 9. Petitioner attributed the inception of his hallucinations to his use of cocaine. The diagnostic impression was that petitioner had Substance Induced Psychotic Disorder, this time with a GAF of 60. Petitioner was prescribed Mellaril. Id. Again during that evaluation, "his appearance, behavior, mood, intellectual functioning, and speech were all considered to be within normal limits." Id.
In August of 1999, in being assessed for a mental health treatment plan, according to Dr. Miller, petitioner's mental health records noted petitioner to have speech difficulties (pressured) and to be in an irritable mood; nevertheless, "his appearance, behavior, intellectual functioning, perceptions, thought content, sensorium, insight and judgment were all considered to be within normal limits"; the diagnostic ...