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Hawes v. Asuncion

United States District Court, N.D. California

July 11, 2019

TERRY R. HAWES, Petitioner,
v.
DEBBIE ASUNCION, Warden, Respondent.

          ORDER GRANTING MOTION TO DISMISS

          WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         In this habeas case brought by a state prisoner under 28 U.S.C. § 2254, respondent has filed a motion to dismiss on the ground that the petition is barred by the statute of limitations. Petitioner opposes. For the reasons stated below, the motion is Granted.

         STATEMENT

         On several occasions during the underlying criminal proceedings, the state trial court found petitioner Terry Hawes incompetent to stand trial and committed him to a state hospital to be involuntarily medicated. The saga began in 2005, three or cooperate with counsel. In early 2006, the trial court ordered petitioner moved to Atascadero State Hospital for the involuntary administration of antipsychotic medications. After approximately six weeks, in June 2006, the trial court found petitioner competent as long as he continued to take his medications (Pet. Exh. 1, 3 at 8-16).

         In September 2006, petitioner discontinued his medications. The trial court again suspended proceedings based on concerns regarding petitioner's competency. Later that year, in December 2006, a jury found petitioner incompetent to stand trial and the trial court ordered petitioner committed to Atascadero State Hospital for the involuntary administration of psychiatric medications. Throughout 2007 and 2008, the trial court reinstated and suspended criminal proceedings multiple times based on findings regarding petitioner's competency (or lack thereof) to stand trial (Pet. Exh. 3 at 23-44).

         A month after the reinstatement of criminal proceedings in April 2009, the trial court learned that petitioner again refused to take his medications and was decompensating. A May 2009 order directed petitioner's return to Atascadero and, in June 2009, the trial court had petitioner housed at Napa State Hospital to permit the involuntary administration of medication throughout his trial (Pet. Exh. 3 at 48-50; Pet. Exh. 21 at 573; Pet. Exh. 24).

         Also in June 2009, a jury found petitioner guilty of rape by foreign object, in violation of Section 289(a)(1) of the California Penal Code, attempted forcible rape, in violation of Sections 261(a)(2) and 664) of the California Penal Code, criminal threats, in violation of Section 422 of the California Penal Code, and assault with intent to commit rape, in violation of Section 220 of the California Penal Code. That jury could not reach a verdict on a second count of rape by a foreign object (Resp. Exh. 1 at 1-3).

         After a retrial in August 2009, a second jury found petitioner guilty of rape by a foreign object and found that he had inflicted great bodily injury in the commission of the crime. Although the trial court had acknowledged in the month prior to the second trial that petitioner was behaving differently than at the first trial, the judge found petitioner competent based on information received from Napa State Hospital. The trial court sentenced petitioner to 33 years and eight months to life in state prison (Resp. Exh. 1 at 1-3; Pet. Exh. 3 at 62-63; Pet. Exh. 28 at 1024-94).

         In May 2010, petitioner began refusing to take medications and he was placed in the psychiatric hospital at Corcoran State Prison. He continued to refuse to take medications after being transferred to the psychiatric hospital at High Desert State Prison in June 2010. By July 2010, petitioner appeared acutely psychotic and delusional and involuntary medication was again initiated. An interim order for involuntary medication was issued later that month. In August 2010, an order was issued authorizing petitioner's involuntary medication for one year pursuant to Keyhea v. Rushen, 178 Cal.App.3d 526 (1986) (Pet. Exh. 4 at 251-73).

         In September 2011, the California Court of Appeal rejected all of petitioner's claims of trial error but found error in the sentencing on the counts of attempted forcible rape, criminal threats, and attempted forcible rape. The state appellate court also noted that the abstract of judgment erroneously reflected that two offenses were committed in 2006 instead of 2005, reversing the judgment and remanding for resentencing on the three counts. The California Supreme Court denied petitioner's state petition for a writ of habeas corpus in November 2011 and denied review of his direct appeal in December 2011 (Resp. Exh. 1 at 39-40; Resp. Exhs. 2-4).

         In January 2012, the trial court resentenced petitioner to 27 years and eight months to life in state prison. Petitioner appealed the new sentence on the ground that the trial court failed to calculate and credit him for time served between the dates of his original sentencing and his resentencing. In July 2012, the trial court recalculated petitioner's custody credits and issued amended abstracts of judgment the same day. Petitioner did not appeal from the trial court's order recalculating his credits (Pet. Exh. 3 at 78-80; Pet. Exhs. 6-7).[1]

         In March 2017, petitioner wrote a letter to Judge Thelton Henderson, which the court clerk construed as an effort to seek habeas relief pursuant to 28 U.S.C. § 2254. The clerk opened the instant action, notified petitioner that he needed to file a habeas petition to challenge his conviction and sentence, and enclosed a form habeas petition and application to proceed in forma pauperis. Later that year, an order dismissed the partially-completed petition with leave to amend, noting that petitioner had failed to set forth any claims in his most recent letter. Following the appointment of counsel to assist in presenting and pursuing his claims, petitioner filed an amended habeas petition in May 2018. Respondent timely filed the instant motion to dismiss (Dkt. Nos. 1-7). This order follows full briefing.[2]

         ANALYSIS

         The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a statute of limitations on petitions for writ of habeas corpus filed by state prisoners. Ordinarily, petitions filed by prisoners challenging non-capital state convictions or sentences must be filed within one year of the date on which the judgment became final after the ...


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