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Dorian D. Bailey v. Greg Lewis

August 17, 2012

DORIAN D. BAILEY,
PETITIONER,
v.
GREG LEWIS, RESPONDENT.



ORDER ADOPTING IN PART AND REJECTING IN PART THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS

Petitioner, Dorian D. Bailey ("Petitioner"), a state prisoner represented by counsel, has filed this application for a writ of habeas corpus pursuant to 28 U.S.C. Section 2254. The matter was referred to United States Judge Carolyn Delaney pursuant to 28 U.S.C. Section 636(b)(1)(B) and Local Rule 302.

On March 16, 2012, Magistrate Judge Delaney issued Findings and Recommendations (Doc. #51) recommending the Court grant Respondent Greg Lewis's ("Respondent") Motion to Dismiss (Doc. #20). Petitioner filed Objections to Magistrate Judge's Findings and Recommendations (Doc. #57). In accordance with the provisions of 28 U.S.C. Section 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2004, a jury convicted Petitioner of thirteen counts 4 charging various sex offenses and one count of first degree 5 robbery. On July 9, 2004, the Sacramento County Superior Court 6 imposed an aggregate unstayed sentence of two consecutive terms of 25 years to life plus 54 years. 8

Since his 2004 conviction, Petitioner has sought review 9 through the California appellate courts, in addition to the United States Supreme Court. After seeking and being denied review in the California Supreme Court on October 31, 2007, Petitioner subsequently filed one state post-conviction collateral challenge. On January 29, 2009, he filed an application for writ of habeas corpus in the Sacramento County Superior Court. On March 6, 2009, the Superior Court denied the petition as untimely.

Petitioner filed the instant federal writ of habeas corpus petition (Doc. #1) on January 11, 2010.*fn1 Applying the mailbox rule, the Magistrate Judge found that because petitioner signed the petition on November 16, 2009, the petition was constructively filed on November 16, 2009. See Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001) (holding that a pro se habeas petition is "deemed filed when [the petitioner] hands it over to prison authorities for mailing to the district court.").

Respondent moves to dismiss the pending habeas petition (Doc. #20). Respondent argues that the petition is time-barred under the 2 Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 3 U.S.C. § 2244. Under AEDPA, Petitioner had one year to file a writ 4 of habeas corpus running from the date on which the judgment became 5 final by conclusion of direct review. 8 U.S.C. § 2244(d)(1)(A). 6 7

In the Findings and Recommendations, the Magistrate Judge 8 finds that Petitioner's direct review concluded when his second 9 petition for review was denied by the California Supreme Court and that the limitations period began to run on January 30, 2008 and concluded one year later on January 29, 2009. Thus, because the petition in the instant case was not constructively filed until November 16, 2009, the Magistrate Judge finds that absent tolling, the petition is time-barred.

Petitioner does not challenge the Respondent's or the Magistrate Judge's AEDPA analysis, but instead argues that the limitations period should be equitably tolled due to his lifelong mental illness and the strong medications he was taking during the relevant time period. The limitations period is subject to equitable tolling if the petitioner demonstrates: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010) (applying the Pace standard to petitioners with mental impairments). Petitioner argues that his mental illness rendered him unable to prepare his federal habeas petition or to timely assist in its preparation and filing.

The Magistrate Judge conducted an evidentiary hearing on February 21, 2012 to resolve the issue of whether the statute of 2 limitations should be equitably tolled. Both parties lodged 3 documents containing Petitioner's mental health records in advance 4 of the hearing and Petitioner produced his mother, J. Yvonne 5

Heriveaux, as a witness. Ms. Heriveaux testified that she prepared 6 the habeas petition "because he wasn't able to." Tr. of 7 Proceedings Before the Honorable Carolyn K. Delaney U.S. Mag. J 8 (Doc. #56) at 25 [hereinafter "Tr."]. Ms. Heriveaux testified that 9

Petitioner "wasn't talking right, he wasn't remembering anything, he was just like in another space in another world." Id. Ms. Heriveaux stated that in about May 2008, she sent Petitioner the petition to sign and return to her for filing, but Petitioner repeatedly denied receiving it. Ms. Heriveaux stated that when she reminded him about signing the petition, he would reply "[w]hat paper, mom? What paper are you talking about? That sort of thing. He just could not remember what I was talking about." Id. at 27, 28. Ms. Heriveaux testified that she sent the petition to him a second time in about November or December 2008, and reminded him to sign and return it every time she talked to him. Id. at 27-29, 38. In sum, Ms. Heriveaux testified that Petitioner was unable to sign the petition because his mental state was "just horrific." Id. at 37.

Respondent presented evidence to cast doubt on Petitioner's claim that he was incapable of functioning during the relevant period. For example, progress notes from February 2008 indicate that Petitioner "had legal questions" and was directed to the law library, and that he "reported he has reviewed his medical records and they are to be mailed to his mother." Tr. at 45.

The Magistrate Judge recommends that this Court grant 2 Respondent's Motion to Dismiss. The Magistrate Judge makes no 3 finding as to whether ...


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