United States District Court, N.D. California
TERRY R. HAWES, Petitioner,
DEBBIE ASUNCION, Warden, Respondent.
AMENDED ORDER GRANTING MOTION TO DISMISS (CORRECTING
OMISSION IN SECOND SENTENCE OF STATEMENT)
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE.
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.
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 months after petitioner's arrest, when the
trial court first suspended criminal proceedings and found
petitioner incompetent to represent himself 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).
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
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).
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).
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).
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
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.
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).
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 ...