(HC) Hayden v. Fox

• Court: District Court, E.D. California
• Decided: January 14, 2021
• Docket: 2:14-cv-01004
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 ALPHONSO HAYDEN, JR., No. 2:14-cv-1004 WBS DB P 13 Petitioner, 14 v. ORDER RE: RESPONDENT’S MOTION TO DISMISS 15 ROBERT W. FOX, Warden, 16 Respondent. 17 18 19 ----oo0oo---- 20 Petitioner, a state prisoner proceeding through 21 appointed counsel, filed an application for a writ of habeas 22 corpus pursuant to 28 U.S.C. § 2254. The matter was referred to 23 a United States Magistrate Judge pursuant to 28 U.S.C. 24 § 636(b)(1)(B) and Local Rule 302. 25 Respondent has moved to dismiss petitioner’s 26 application as time barred. (See Docket No. 22.) Petitioner 27 argues that he is entitled to equitable tolling of the applicable 28 statute of limitations because he suffers from a mental 1 impairment that rendered him unable to understand the need to 2 file a timely habeas petition before the limitations period 3 expired. (See Docket No. 28.) 4 On November 12, 2019, the magistrate judge held an 5 evidentiary hearing. At the hearing, petitioner’s expert, Dr. 6 Deserie Barragan, Psy.D., and respondent’s expert, Dr. Cheryl 7 Paizis, D.O., presented testimony regarding petitioner’s mental 8 health records from 2001 to 2013 and the California Department of 9 Corrections and Rehabilitation’s (“CDCR”) diagnostic and 10 treatment processes during the same period. (See Docket No. 69.) 11 Following the hearing, the parties submitted supplemental 12 briefing (Docket Nos. 83, 84), and the magistrate judge filed 13 findings and recommendations herein which were served on all 14 parties and which contained notice to all parties that any 15 objections to the findings and recommendations were to be filed 16 within fourteen days. (See Magistrate Judge’s Findings & 17 Recommendations (“Findings & Recommendations”) (Docket No. 86).) 18 Petitioner has filed objections to the findings and 19 recommendations. (See Objs.to Magistrate Judge’s Findings and 20 Recommendations (“Pet’r’s Objs.”) (Docket No. 91).) 21 In accordance with the provisions of 28 U.S.C. § 22 636(b)(1)(C) and Local Rule 304, this court has conducted a de 23 novo review of this case and carefully reviewed the entire file.1 24 1 Where, as here, the magistrate judge has issued 25 findings and recommendations based in part on testimony presented at an evidentiary hearing, “the district court is entitled to 26 rely upon [the magistrate’s] recommendations when making its 27 decision on the motion.” See United States v. Bergera, 512 F.2d 391, 394 (9th Cir. 1975); United States v. Raddatz, 447 U.S. 667, 28 676 (1980) (“[I]n providing for a ‘de novo determination’ rather 1

2 than de novo hearing [in 28 U.S.C. § 636(b)(1)], Congress intended to permit whatever reliance a district judge, in the 3 exercise of sound judicial discretion, chose to place on a magistrate’s proposed findings and recommendations.”) Where 4 parties have objected to portions of the magistrate’s report, 5 however, the court must “arrive at its own independent conclusion about those portions of the . . . report.” United States v. 6 Remsing, 874 F.2d 614, 618 (9th Cir. 1989). At a minimum, this requires that the district court review “a tape recording or a 7 transcript of the relevant portions of the proceedings before the magistrate.” See id. 8 When the magistrate judge’s findings concern a credibility determination of a witness, however, additional 9 review may be required. If the magistrate’s findings are based 10 on a credibility determination favorable to the defendant, the court may not reject those findings without first conducting an 11 additional evidentiary hearing to hear and see the testimony of the witness. See Johnson v. Finn, 665 F.3d 1063, 1069 (9th Cir. 12 2011). If the magistrate’s credibility determination is favorable to the government, the court need not necessarily 13 conduct an additional evidentiary hearing (though the Ninth 14 Circuit has indicated that it “counsels strongly” in favor of one), unless “the district judge finds that the magistrate 15 judge's credibility determinations had no legally sufficient evidentiary basis, so that, were they jury determinations, 16 judgment as a matter of law would issue for the defendant.” United States v. Thoms, 684 F.3d 893, 896 (9th Cir. 2012). 17 Here, the court is not required to assess any 18 credibility findings made by the magistrate judge. None of petitioner’s objections to the magistrate judge’s findings & 19 recommendations concern the magistrate’s assessment of Dr. Barragan’s credibility, and neither party has requested that the 20 court conduct an additional evidentiary hearing. (See Pet’r’s Supplemental Brief at 3 (Docket No. 95); Resp’t’s Supplemental 21 Brief (Docket No. 94).) Rather, petitioner states that his 22 “objections seek to correct the Magistrate Court’s inaccurate restatement of Dr. Barragan’s testimony; he argues simply that 23 certain statement of facts in the Findings and Recommendations were inconsistent with the testimony.” (Pet’r’s Supplemental 24 Brief at 3); see also Crittenden v. Chappell, 804 F.3d 998, 1011 (9th Cir. 2015) (holding that additional evidentiary hearing not 25 required because magistrate judge had not made, and the district court had not rejected, any credibility determinations of 26 prosecutor). 27 The court has reviewed the transcript of the evidentiary hearing before the magistrate judge as well as the 28 evidence relied upon in the findings and recommendations. See 1 For the reasons that follow, the court finds the magistrate 2 judge’s findings and recommendations to be supported by the 3 record and by proper analysis. 4 First, the magistrate judge’s factual findings 5 regarding petitioner’s “Global Assessment of Functioning” (“GAF”) 6 scores are supported by the record. A GAF score is a measure 7 that was developed for clinicians to provide a judgment about 8 symptom severity and level of functioning on a scale of 1-100 for 9 clients suffering from mental illness. (Evid. Hr’g Tr. (“Hr’g 10 Tr.”), Ex. 1, 22:22-25:10 (Docket No. 80).) Though GAF scores 11 were not created with the prison population in mind, the 12 California Department of Corrections and Rehabilitation (“CDCR”) 13 has adapted them to indicate an inmate’s level of functioning 14 within the prison setting. (Id. at 85:25-86:10.) 15 Petitioner objects to several statements made by the 16 magistrate judge in the findings and recommendations regarding 17 GAF scores, arguing that the magistrate judge’s description 18 provides an inaccurate and incomplete picture of GAF scores and 19 their use by CDCR staff. (See Pet’r’s Objs. at 3-5.) 20 Specifically, petitioner argues that the magistrate judge’s 21 findings fail to account for testimony by Dr. Barragan stating 22 that CDCR clinicians often do not abide by “standards of 23

24 Remsing, 874 F.2d at 618. Because the court need not reject any credibility findings of the magistrate judge to decide 25 respondent’s motion, an additional evidentiary hearing is not required to satisfy § 636(b)(1)(C)’s requirement that the court 26 conduct a de novo review of the case. See Finn, 665 F.3d at 27 1069; Crittenden, 804 F.3d at 1011.

28 1 construction” provided in the Diagnostic and Statistical Manual 2 of Mental Disorders (“DSM”) when assigning GAF scores and, 3 therefore, that the GAF system is not a reliable or consistent 4 measurement of symptoms or functioning, particularly as utilized 5 by CDCR. (See id.; Hr’g Tr. at 85:20-22, 88:18-23, 91:7-16.) 6 Contrary to petitioner’s assertions, the court finds 7 that the magistrate judge’s factual findings regarding GAF scores 8 and their use by CDCR accurately reflect Dr. Barragan’s 9 testimony.2 The magistrate judge found that the DSM standards of 10 construction require clinicians to “assign a GAF score that 11 reflects the worse of” an inmate’s severity of symptoms or level 12 of functioning in the prison setting, while also acknowledging 13 that “[n]otwithstanding the [DSM] standard of construction, a 14 clinician may also assign a GAF score that is an amalgamation of 15 the functioning v. symptoms scores (e.g., an average of the two 16 numbers)” and “[s]ometimes, a clinician may assign a GAF score 17 based on the level of care that the clinician thinks an inmate 18 need[s].” (See Findings & Recommendations at 15-16.) 19 These statements accurately characterize testimony by 20 Dr. Barragan to the same effect. (See Hr’g Tr. at 87:10-24, 21 89:4-91:16.) The findings and recommendations even explicitly 22 “credit Dr. Barragan’s testimony that petitioner’s assigned GAF 23 scores were likely too high in some records” because “the GAF 24 scores were likely assigned based on the wrong measure . . . the 25 clinicians’ motivation to retain petitioner” at a lower level of 26 2 Although respondent’s expert, Dr. Cheryl Paizis, D.O., 27 also testified at the evidentiary hearing, the magistrate judge’s findings and recommendations did not rely on her testimony to 28 come to any of its conclusions. 1 outpatient care in the prison. (See id. at 30; Hr’g Tr. at 2 47:14-51:8, 95:17-99:25.) 3 Second, the court finds the magistrate judge’s findings 4 and recommendations to be supported by proper legal analysis. To 5 be entitled to equitable tolling based on a mental impairment, 6 the petitioner must meet a two part test:

7 (1) First, a petitioner must show his mental impairment was an “extraordinary 8 circumstance” beyond his control by 9 demonstrating the impairment was so severe that either 10 (a) petitioner was unable rationally or 11 factually to personally understand the need to timely file, or 12

13 (b) petitioner’s mental state rendered him unable personally to prepare a 14 habeas petition and effectuate its filing. 15 (2) Second, the petitioner must show 16 diligence in pursuing the claims to the 17 extent he could understand them, but that the mental impairment made it impossible to 18 meet the filing deadline under the totality of the circumstances, including reasonably 19 available access to assistance. 20 Bills v. Clark, 628 F.3d 1092, 1099–1100 (9th Cir. 2010) (citing 21 Holland v. Florida, 560 U.S. 631 (2010)). Under this test, the 22 petitioner has the burden of showing that he suffered from a 23 mental impairment during the filing period that was the “but-for” 24 cause of any delay in filing, a burden which the Ninth Circuit 25 has described is a “high threshold.” See id. at 1097, 1100-1101. 26 The magistrate judge concluded that petitioner failed 27 to meet his burden because “unequivocal evidence” showed that 28 1 petitioner was sufficiently functional to challenge his 2 conviction throughout the relevant limitations period. (See 3 Findings & Recommendations at 32-34.) Specifically, the 4 magistrate judge relied on the fact that, for much of the 5 limitations period, petitioner was functional enough to pursue 6 collateral attacks on his underlying conviction via habeas 7 petitions in state court. (See id. at 32-33.) The magistrate 8 judge also reviewed petitioner’s medical records and concluded 9 that his symptoms appeared “noticeably less pronounced” during 10 the limitations period. (See id. at 33.) 11 Petitioner objects by arguing that the magistrate 12 judge’s reliance on evidence of petitioner’s ability to pursue 13 attacks on his underlying conviction state habeas petitions, as 14 well as evidence from petitioner’s medical records, is improper 15 because these sources of evidence merely provide snapshots into 16 petitioner’s functionality at discrete moments in time. (See 17 Pet’r’s Objs. at 9-12.) While petitioner may have appeared 18 functional at the time of his challenges to his underlying 19 conviction or during certain periods reflected in his medical 20 records, petitioner argues that he “experienced a range of severe 21 symptoms over the year and a half period during the pendency of 22 his habeas relief appeal” and that the evidence relied upon “does 23 not provide sufficient information to conclude that his severe 24 mental illness did not prevent him from filing a later pro se 25 habeas petition.” (See id. at 13 (emphasis in original).) 26 However, this objection misconceives the nature of 27 petitioner’s burden under Bills. To be entitled to equitable 28 tolling, the petitioner must show that his mental impairment 1 prevented him from filing a timely habeas petition--not that 2 there is insufficient information to conclude that his impairment 3 did not prevent him from timely filing. See Bills, 628 F.3d at 4 1099–1100. The court agrees with the magistrate judge’s 5 conclusion that petitioner has not demonstrated that his mental 6 illness during the running of the statute of limitations 7 prevented him from understanding the need to timely file a 8 federal habeas petition or from taking steps to effectuate its 9 filing, given his ability to file challenges to his conviction in 10 state court during that time period. 11 Due to statutory tolling, the relevant limitations 12 period during which petitioner had to file his federal habeas 13 petition began on November 4, 2003, and concluded on October 5, 14 2005. See 28 U.S.C. § 2244(d)(2); Biggs v. Duncan, 339 F.3d 15 1045, 1046 (9th Cir. 2003). Throughout this time period, 16 petitioner was undoubtedly suffering from symptoms arising from 17 his mental impairment. (See Medical Records of Alphonso Hayden, 18 Volume II (“Medical Records Vol. II”) at 69-82 (Docket No. 32-2) 19 (noting, e.g., that petitioner suffered from “command” auditory 20 hallucinations that directed him to hurt himself or others, that 21 “voices” were telling petitioner that he was God, and finding 22 petitioner to be “dissociative unstable”).) 23 Those symptoms, however, do not appear to have been 24 noticeably more severe than in previous years, when petitioner 25 was able to challenge his conviction on direct appeal. (See 26 Medical Records of Alphonso Hayden, Volume I at 3-63 (Docket No. 27 32-1) (noting, e.g., that petitioner had recurring delusions that 28 he was God and that voices in his head were teasing him and 1 “trying to humiliate” him).) Indeed, petitioner was sufficiently 2 functional during the limitations period to file and pursue two 3 habeas petitions in California state court: one in the California 4 Supreme Court on October 23, 2003, and one in Sacramento County 5 Superior Court on November 23, 2004. (See Resp’t’s Notice of 6 Lodging Documents at 2 (Docket No. 24).) 7 Petitioner was also sufficiently functional to consult 8 with a friend in prison, who drafted one of the writs for him. 9 (See Medical Records Vol. II at 2); see also Bills, 628 F.3d at 10 1099–1100 (instructing that “[t]he court should examine whether 11 the petitioner’s mental impairment prevented him from locating 12 assistance or communicating with or sufficiently supervising any 13 assistance actually found”). Because there is no indication that 14 any significant increases in the severity of petitioner’s 15 symptoms occurred until after the limitations period had already 16 run, the court will adopt the magistrate judge’s finding that 17 petitioner has not met his burden of showing that his mental 18 impairment prevented him from understanding the need to timely 19 file his federal habeas petition or prevented him from 20 effectuating such timely filing. See id.; (Findings & 21 Recommendations at 34). 22 Petitioner raises an additional objection that the 23 magistrate judge did not permit his counsel the opportunity to 24 supplement his pro se opposition to respondent’s motion to 25 dismiss or to present certain testimony at the evidentiary 26 hearing that would have shown that petitioner acted diligently 27 under Bills. (See Pet’r’s Objs. at 13-15.) However, the 28 magistrate judge’s recommendation did not rely upon a finding eee RE ON IEE I ENE IIE II IE IE OSE ESE OD Oe

1 that petitioner failed to act diligently. A finding that 2 | petitioner failed to establish that his mental impairment 3 | prevented him from timely filing his federal habeas petition is 4 itself sufficient to deny petitioner’s request for equitable 5 tolling, and therefore the magistrate judge was not required to 6 | opine on petitioner’s diligence. See Bills, 628 F.3d at 1100. 7 The court therefore finds this objection to be without merit. 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. The findings and recommendations filed June 24, 2020, 10 are adopted in full; 11 2. Respondent’s motion to dismiss (ECF No. 22) is GRANTED; 12 and 13 3. The court declines to issue the certificate of 14 appealability referenced in 28 U.S.C. § 2253. 15 | Dated: January 13, 2021 he bloom HK Ad. bE 16 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 10