Bills v. Clark
| Decision Date | 08 December 2010 |
| Docket Number | No. 08-17517,08-17517 |
| Citation | 628 F.3d 1092 |
| Parties | Jimmy Lee BILLS, Petitioner-Appellant, v. Ken CLARK, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Marylou Hillberg, Sebastopol, CA, for the petitioner-appellant.
Robert Gezi, Deputy Attorney General, Edmund G. Brown, Jr., Attorney General of California, Michael P. Farrell, Senior Assistant Attorney General, and Julie A. Hokans, Supervising Deputy Attorney General, Office of the California Attorney General, Sacramento, CA, for the respondent-appellee.
Appeal from the United States District Court for the Eastern District of California, Morrison C. England, District Judge, Presiding. D.C. No. 2:06-cv-02223-MCE-GGH.
Before: MICHAEL DALY HAWKINS and RAYMOND C. FISHER, and TIMOTHY M. TYMKOVICH, Circuit Judges.*
This case requires us to consider when a petitioner's mental condition may constitute an extraordinary circumstance justifying equitable tolling of the untimely filing of a habeas petition. We conclude equitable tolling is permissible when a petitioner can show a mental impairment so severe that the petitioner was unable personally either to understand the need to timely file or prepare a habeas petition, and that impairment made it impossible under the totality of the circumstances to meet the filing deadline despite petitioner's diligence.
The petitioner in this case is Jimmy Lee Bills, a California state prisoner. Bills filed his habeas petition outside of the one-year limitations period contained in the Antiterrorism and Effective Death Penalty Act of 1996 § 101, 28 U.S.C. § 2244 (2006) (AEDPA), but argues he is entitled to equitable tolling due to his low IQ and writing deficiencies during the limitations period. The district court found Bills's mental deficiencies were not so severe as to constitute an extraordinary circumstance that prevented him from filing his petition on time.
Because we conclude the district court should in the first instance review Bills's claims under the legal standard we discuss below, we REVERSE the dismissal of Bills's habeas petition and REMAND the case for application of the facts to the correct standard.
While serving time in California state prison on other charges, Bills was convicted of possession of a sharp instrument by a state prisoner and sentenced to 25 years to life in prison. He proceeded with a direct appeal through the California appellate courts. The California Supreme Court denied review on October 29, 2003. Bills's state court judgment became final 90 days later, on January 28, 2004, when the time expired for an appeal to the United States Supreme Court. Under AEDPA, Bills had one year from that date to file a federal habeas petition. See 28 U.S.C. § 2244(d)(1)(A) (2006).
On November 15, 2004, during the one-year AEDPA limitations period, Bills filed a state habeas petition. The filing of this petition tolled the limitations period. His state petition was denied on October 12, 2005. At that time, the AEDPA limitations period began to run again, expiring on December 25, 2005. Bills filed a pro se federal habeas petition nearly 10 months later, on October 10, 2006.
In his federal habeas petition, Bills alleges various trial errors and ineffective assistance of counsel. The district court appointed counsel for Bills "[i]n light of the length of petitioner's sentence...." Because the petition was untimely filed, Bills's counsel urged the district court to equitably toll the AEDPA limitations period "due to his inability to read and write, his neurological deficits, borderline to mildly retarded level of intelligence, concurrent psychosis and lack of assistance available to him."
The magistrate judge ordered an evidentiary hearing concerning Bills's mental capacity and his right to equitable tolling. At the hearing, Bills submitted evidence in support of his tolling claim, and both Bills and a mental health expert testified.
Bills testified he did not write his federal habeas petition, instead relying on another prisoner for assistance. But Bills acknowledged that while in jail he prepared a number of administrative and judicial filings, including a pro se federal habeas petition in 2000, an administrative complaint regarding medical care in 2001, a 42 U.S.C. § 1983 complaint in 2001, and the state habeas petition that preceded this action in 2004. Bills also represented himself pro se during the prisoner in possession of a sharp instrument trial—including examining witnesses and making opening and closing arguments. Nonetheless, Bills testified he had difficulty understanding some of the language used in his trial court briefs.
An expert witness, clinical psychologist Dr. John S. Miller, attested to Bills's capabilities both by affidavit and at the hearing. Miller's affidavit reflected his observations and testing of Bills while in prison and an examination of related medical documents. In summary, the affidavit states Bills's "thoughts were linear and his associations were logical." Although "[t]here was no overt evidence of hallucinations or delusions," Bills told Miller he suffered from them constantly. Additionally, Miller found Bills "was not able to name the current president, was not able to subtract serial 7s or 3s, and was not able to spell the word 'world' " forwards or backwards. Miller surveyed Bills's mental health file, which showed a history of substance abuse and behavioral disorders, for which he was prescribed a variety of medications.
Miller also reported on several cognition tests he performed. An intelligence scale test showed Bills was in the lowest percentile for verbal IQ, verbal comprehension, and working memory. On other tests, Bills fared better. He tested borderline and low average for memory, and prison-administered tests showed him to have normal cognitive functioning. In the end, Miller diagnosed Bills as bipolar with a variety of behavioral and cognitive disorders, and concluded Bills "could [not] understand his legal rights sufficiently to make rational choices with respect to acting upon them."
At the evidentiary hearing, Miller was the only witness other than Bills who testified. His direct examination generally confirmed the observations set forth in his affidavit. But on cross-examination, Miller agreed that "central features" of one of Bills's personality disorders was "deceit and manipulation," and it was "typified by ... disregard for the law." Miller also testified a set of Bills's test results had to be discarded because Bills "exaggerated his symptoms," although on redirect Miller contended "[i]t's easy to exaggerate, but it's easy to be caught."
When asked whether Bills had the "reasonable degree of rational understanding" needed to consult with an attorney, Miller responded, Later, Miller testified that in his opinion Bills was incapable of the inferential thinking necessary to complete a federal habeas form. Miller was unable to say for certain whether the cognitive functioning he observed was present during the AEDPA limitations period. Although he said the records showed Bills's abilities "stayed in the same ballpark," he also conceded there may have been "quite a bit of fluctuation."
Bills also presented two psychological evaluations performed on him in late 2000 while in prison. The first was performed by Dr. Shawn Adair Johnston, a psychologist the California superior court appointed to evaluate whether Bills was competent to stand trial for the prisoner in possession of a sharp instrument charge. Many of Johnston's observations were consistent with those of Miller: Bills had a below average or borderline intellectual functioning, he described an abusive childhood, and he said he heard voices. But Johnston concluded Bills was competent to stand trial because "[h]e obviously understands both the nature of the charges and proceedings being taken against him and is ... capable of working with his attorney in preparing a rational defense in his case."
Dr. John Alan Foster performed the second psychological evaluation. Foster concluded Bills had a low average to borderline intellectual ability. Bills told Foster about auditory hallucinations, and Bills's medical record showed he was prescribed a variety of medications for bipolar and psychotic disorders. In the end, like Johnston, Foster believed Bills was competent to stand trial.
Based on the testimony and affidavits presented, the magistrate judge recommended the district court deny equitable tolling. The magistrate judge concluded that Bills's repeated legal filings and his pro se representation in the state trial showed he was competent during the AEDPA limitations period. In addition, the discrepancies between the psychologists' submissions and testimony and Bills's demeanor when testifying at the hearing cut in favor of finding Bills competent. The magistrate judge observed, "petitioner on occasion appeared to undermine his own credibility in his effort to convince the court of his deficiencies." Finding that Bills failed to establish he "was unable by reason of mental defect to understand hisneed to timely file a habeas petition and unable to take steps to effectuate that filing" (citing Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam)), the magistrate judge rejected equitable tolling.
The district court adopted the magistrate judge's findings and recommendations in full. We granted a certificate of appealability (COA) on whether the district court applied the correct legal standard in denying equitable tolling. 1
Bills makes two arguments on appeal....
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