Opinion
No. 2:14-cv-1004 WBS DB P
06-24-2020
ALPHONSO HAYDEN, JR., Petitioner, v. ROBERT W. FOX, Warden, Respondent.
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges his 2001 conviction on five counts of robbery, which ultimately resulted in a sentence of forty-six years to life. Respondent moves to dismiss the habeas petition as time-barred. Petitioner argues that he is entitled to equitable tolling on grounds of mental illness. On November 12, 2019, the Court held an evidentiary hearing at which petitioner's appointed counsel and respondent's counsel each presented evidence regarding petitioner's mental health. Following the hearing, the parties were granted one final opportunity to submit any further arguments related to respondent's motion to dismiss. After carefully reviewing the record and for the reasons set forth below, the undersigned will recommend that respondent's motion be granted.
I. Procedural History
The procedural history of this case derives from the operative first amended petition for writ of habeas corpus ("FAP," ECF No. 9), and documents lodged with the Court by respondent (see ECF No. 24).
On May 22, 2001, a Sacramento County Superior Court jury found petitioner guilty of five counts of first-degree robbery, in violation of California Penal Code § 211. In a bifurcated trial, the jury then found true allegations that, in 1988, petitioner had received two federal bank robbery convictions. Based on the conviction and findings, petitioner was sentenced to state prison for a term of 130 years to life, consisting of five consecutive terms of 25 years to life, with an additional five years in sentencing enhancements based on the 1988 convictions. (Lod. Doc. No. 2; People v. Hayden, No. C038685, 2002 WL 31105409, 2002 Cal. App. Unpub. LEXIS 8862 (Cal. Ct. App. Sep. 23, 2002)). Petitioner appealed his conviction.
On September 23, 2002, the California Court of Appeal for the Third Appellate District issued an unpublished opinion affirming the judgment of conviction but vacating the sentence and remanding the matter for resentencing. Id. On January 8, 2003, upon remand, the Sacramento County Superior Court resentenced petitioner to 25 years to life on count one, 10 years on count two, 2 years each on counts three, four, and five, and a five-year sentencing enhancement, for a total sentence of 46 years to life. (Lod. Doc. No. 4, People v. Hayden, No. C043054, 2002 WL 22205940 (Cal. Ct. App. Sep. 24, 2003).) Petitioner appealed his resentencing.
On September 24, 2003, the California Court of Appeal for the Third Appellate District issued an unpublished opinion directing the trial court to correct petitioner's offenses from first to second degree robbery, modifying the judgment to include certain fines and penalty assessments, and affirming the judgment in its modified form. Id.
Petitioner subsequently filed four petitions for writs of habeas corpus: on October 23, 2003, with the California Supreme Court; on November 23, 2004, with the Sacramento County Superior Court; on April 13, 2013, with the California Supreme Court; and on June 1, 2013, with the Sacramento County Superior Court. (Lod. Doc. Nos. 5, 7, 9, 11.) Each of these petitions was denied. (Lod. Doc. Nos. 6, 8, 10, 12.) On October 19, 2013, petitioner filed a petition for writ of habeas corpus with the California Court of Appeal for the Third Appellate District, which was denied on November 7, 2013. (Lod. Doc. Nos. 13, 14.) On December 7, 2013, petitioner filed a petition for writ of habeas corpus with the California Supreme Court, which was denied on February 26, 2014. (Lod. Doc. Nos. 15, 16.)
On April 19, 2014, petitioner filed a petition for writ of habeas corpus with this court, thereby commencing this action. On September 26, 2014, the court, after completing an initial screening, dismissed the petition, but granted petitioner leave to file an amended petition. On October 23, 2015, petitioner filed the operative FAP. (ECF No. 9.) Petitioner therein seeks federal habeas relief on the grounds that his rights under the U.S. Constitution were violated by the following: instructional errors, evidentiary errors, error related to the imposition of a five-year enhancement, error related to the restitution order, Batson error, insufficiency of evidence, error related to the failure to include a lesser-included offense, ineffective assistance of counsel, error regarding the denial of a competency hearing, and error when the trial court failed to consider mitigating evidence.
On February 26, 2015, respondent moved to dismiss the petition as time-barred. (ECF No. 22.) Petitioner opposes the motion. (ECF No. 28.) Respondent has filed a reply. (ECF No. 29.) Petitioner then filed a sur-reply. (ECF No. 42.)
Due to petitioner's claimed mental impairment, the undersigned appointed the Federal Defender to represent petitioner for the purpose of responding to the motion to dismiss. (ECF No. 47.) This appointment order directed counsel for petitioner to file a motion if she determined that evidence supporting petitioner's argument for equitable tolling can only be presented through an evidentiary hearing. Following multiple stipulations to extend the time for a response, petitioner filed a motion for an evidentiary hearing on May 14, 2018. (ECF No. 64.) On July 16, 2018, the undersigned granted the motion in part, and an evidentiary hearing was set to hear testimony only from a mental health expert regarding petitioner's mental health records from 2001 to 2013 and an expert on the California Department of Corrections and Rehabilitation's ("CDCR") diagnostic and treatment processes during that same period. (ECF No. 69.)
The evidentiary hearing was ultimately held on November 12, 2019. Federal Defender Hannah Labaree appeared for petitioner, and Deputy Attorney General Justin Riley appeared for respondent. Dr. Deserie Barragan, Psy.D., testified for petitioner, and Dr. Cheryl Paizis, D.O., testified for respondent. Upon conclusion of the evidentiary hearing, the parties were directed to file supplemental briefing limited to the relevance of any evidence and/or expert testimony offered by the parties at the evidentiary hearing. (ECF No. 82.) The parties' timely briefs followed. (ECF Nos. 83-84.)
Dr. Paizis's brief testimony had minimal value in support of respondent's motion to dismiss, and it was therefore not considered by the Court.
Respondent's motion to dismiss is now fully briefed and ready for disposition.
II. Standards
A. Standard re: Motion to Dismiss
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court. . . ." Id. The Court of Appeals for the Ninth Circuit construes a motion to dismiss a habeas petition as a request for the court to dismiss under Rule 4 of the Rules Governing § 2254 Cases. See O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1991). Accordingly, the court will review respondent's motion to dismiss pursuant to its authority under Rule 4.
In ruling on a motion to dismiss, the court "must accept factual allegations in the [petition] as true and construe the pleadings in the light most favorable to the non-moving party." Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (quoting Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1030 (9th Cir. 2008)). In general, exhibits attached to a pleading are "part of the pleading for all purposes . . . ." Hartmann v. Cal. Dept. of Corr. and Rehab., 707 F. 3d 1114, 1123 (9th Cir. 2013) (quoting Fed. R. Civ. P. 10(c)). //// //// ////
B. AEDPA Statute of Limitations and Tolling
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") was signed into law. AEDPA amended 28 U.S.C. § 2244 by adding the following provision:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
This one-year AEDPA statute of limitations applies to all federal habeas corpus petitions filed after the statute was enacted. See Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). However, state prisoners "whose convictions became final prior to AEDPA's enactment, had a one-year grace period in which to file their petitions." Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001) (citing Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1286 (9th Cir.1997). See also Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) ("Because Waldron-Ramsey's state conviction was finalized before AEDPA's enactment on April 24, 1996, his deadline to file a habeas petition under AEDPA was April 23, 1997."); Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999) ("Accordingly, a prisoner with a state conviction finalized before April 24, 1996, such as Miles, had until April 23, 1997 to file a federal habeas petition.")
A. Statutory Tolling
The limitations period is statutorily tolled during the time in which "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). A state petition is "properly filed," and thus qualifies for statutory tolling, if "its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennet, 531 U.S. 4, 8 (2000). Generally, this means that the statute of limitations is tolled during the time after a state habeas petition has been filed, but before a decision has been issued. Nedds, v. Calderon, 678 F.3d 777, 780-81 (9th Cir. 2012). However, "[a] petitioner who unreasonably delays in filing a state habeas petition would not be granted the benefit of statutory tolling because the petition would not be considered pending, or properly filed, within the meaning of § 2244(d)." Id. at 780 (internal quotations and citations omitted).
Additionally, the limitations period is not tolled for the period between finality of the appeal and the filing of an application for post-conviction or other collateral review in state court since no state court application is "pending." Nino v. Galaza, 183 F.3d 1003, 1006-07 (9th Cir. 1999) overruled on other grounds by Carey v. Saffold, 536 U.S. 214, 225-27 (2002) (holding a California habeas petitioner who unreasonably delays in filing a state habeas petition is not entitled to the benefit of statutory tolling during the gap or interval preceding the filing).
State habeas petitions filed after the one-year statute of limitations has expired do not revive the statute of limitations and have no tolling effect. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) ("section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed"). The filing of a federal habeas petition does not toll the statute of limitations. Duncan v. Walker, 533 U.S. 167, 181-82 (2001); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). Nor is there tolling between finality of a direct appeal and the filing of a federal petition. Nino, 183 F.3d at 1006-07.
B. Equitable Tolling
In addition to the statutory tolling provided for by § 2244(d)(2), the "AEDPA limitations period may be tolled" when it is "equitably required." Doe v. Busby, 661 F.3d 1001, 1011 (9th Cir. 2011) (citations omitted). The "threshold necessary to trigger equitable tolling [under AEDPA] is very high." Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (citation and internal quotation marks omitted).
The limitations period may be equitably tolled if a petitioner establishes "'(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented him from timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). An extraordinary circumstance must be more than merely "'oversight, miscalculation or negligence on [the petitioner's] part.'" Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (quoting Harris v. Carter, 515 F.3d 1051, 1055 (9th Cir. 2008)). Rather, petitioner must show that some "external force" "stood in his way." Waldron-Ramsey, 556 F.3d at 1011. "The high threshold of extraordinary circumstances is necessary lest the exceptions swallow the rule." Lakey v. Hickman, 633 F.3d 782 (9th Cir. 2011) (citations and internal quotation marks omitted). It is petitioner's burden to demonstrate that he is entitled to equitable tolling. Espinoza-Matthews v. People of the State of California, 432 F.3d 1021, 1026 (9th Cir. 2005).
The diligence prong in Pace requires the petitioner to show he engaged in reasonably diligent efforts to file his § 2254 petition throughout the time the limitations period was running. Mendoza v. Carey, 449 F.3d 1065, 1071 n.6 (9th Cir. 2006) (stating that equitable tolling "requires both the presence of an extraordinary circumstance and the inmate's exercise of diligence"). The petitioner must also show reasonable diligence in attempting to file his habeas petition after the extraordinary circumstances and the failure to file [is] broken." Spitsyn v. Moore, 345 F.3d 796, 802 (9th Cir. 2003). The "extraordinary circumstances" prong in Pace requires the petitioner to "additionally show that the extraordinary circumstances were the cause of his untimeliness, and that the extraordinary circumstances made it impossible to file a petition on time." Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (internal quotations and citations omitted).
Courts are expected to "take seriously Congress's desire to accelerate the federal habeas process." Calderon, 128 F.3d at 1289, overruled in part on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530 (9th Cir. 1998). See also Corjasso v. Ayers, 278 F.3d 874, 877 (9th Cir.2002) (describing the Ninth Circuit's standard as setting a "high hurdle" to the application of equitable tolling). To this end, "the circumstances of a case must be 'extraordinary' before equitable tolling can be applied[.]" Holland, 560 U.S. at 652. Whether a party is entitled to equitable tolling "turns on the facts and circumstances of a particular case." Spitsyn v. Moore, 345 F.3d 796, 801 (9th Cir. 2003) (quoting Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999)). See also Holland, 560 U.S. at 654 (leaving "to the Court of Appeals to determine whether the facts in this record entitle Holland to equitable tolling, or whether further proceedings, including an evidentiary hearing, might indicate that respondent should prevail"); Doe, 661 F.3d at 1012 ("[W]hether a prisoner is entitled to equitable tolling under AEDPA will depend on a fact specific inquiry by the habeas court which may be guided by 'decisions made in other similar cases.' ") (citing Holland, 560 U.S. at 650).
III. Analysis
There is no dispute that petitioner exceeded AEDPA's one-year statute of limitations for filing his petition for federal habeas relief. There is also no dispute that petitioner is entitled to statutory tolling during the pendency of his state habeas petitions. The only serious question before the Court is whether petitioner is entitled to equitable tolling due to mental impairment. The parties' respective arguments and the testimony and documents proffered at the evidentiary hearing are addressed in detail below.
A. The Petition is Untimely
Absent tolling, the one-year limitations period for petitioner to seek federal habeas relief would have begun to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. 2244(d)(1)(A). Respondent characterizes this date as November 4, 2003, reasoning as follows: On September 24, 2003, the California Court of Appeal for the Third Appellate District issued an opinion affirming petitioner's judgment after resentencing. Pursuant to then-effective California Rule of Court 28(b) (now Rule 8.500(e)(1)), petitioner had 40 days thereafter—or until November 3, 2003—to seek direct review in the California Supreme Court, which he did not do. The Court agrees with respondent that, absent tolling, the one-year limitations period would have started to run on the following day, or November 4, 2003.
The April 2014 petition filed in this court thus appears to be untimely.
B. Petitioner is Entitled to Statutory Tolling
a. Tolling for First State Habeas Petition
Respondent concedes that the commencement of the statute of limitations was immediately statutorily tolled by petitioner's first petition for writ of habeas corpus filed within the 40-day period between the California Court of Appeal's affirmance and the time for seeking review in the California Supreme Court. "The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation . . . ." 28 U.S.C. § 2244(d)(2). Petitioner filed his petition in the California Supreme Court on October 23, 2003. (Lod. Doc. No. 5.) On July 28, 2004, the petition was denied. (Lod. Doc. No. 6.) The Court therefore finds that petitioner is entitled to statutory tolling at least through July 28, 2004. The pendency of this first habeas petition tolled the statute of limitations for 267 days.
b. Interval Tolling
Petitioner filed a second habeas petition on November 23, 2004, with the Sacramento County Superior Court. (Lod. Doc. No. 7.) Between July 28, 2004 (from the conclusion of the first state habeas petition) and November 23, 2004 (the commencement of the second state habeas petition), 118 days elapsed.
Respondent argues that petitioner is not entitled to interval tolling for this period. He contends that the filing of a habeas petition in a higher court and the subsequent filing of a habeas petition in a lower court does not provide a basis for interval tolling. Respondent is correct on this point. "The United States Supreme Court has held that applications for state post-conviction relief . . . will be deemed 'pending' for purposes of 28 U.S.C. § 2244(d)(2), even during the intervals between the denial of a petition by one court and the filing of a new petition at the next level . . . ." Biggs v. Duncan, 339 F.3d 1045, 1046 (9th Cir. 2003) (citing Carey v. Saffold, 536 U.S. 214, 223-25 (2002)). In other words, "an application for post conviction relief is pending during the 'intervals between a lower court decision and a filing of a new petition in a higher court.'" Id. at 1048 (quoting Carey, 536 U.S. at 223 (emphasis in original)). "In the absence of undue delay, the entire time [is] tolled while [the habeas petitioner] completes a full round of collateral review." Id. (internal quotation from Carey omitted). Here, petitioner did not file his subsequent, November 23, 2004 petition in a higher court, but in a lower court, which precludes interval tolling.,
As the November 23, 2004 petition was filed in a lower court (the Sacramento County Superior Court) rather than the same court (the California Supreme Court), it also appears that petitioner cannot avail himself of the exception to this rule that potentially obtains when successive petitions are filed in the same court: "If the successive petition was attempting to correct deficiencies of a prior petition, however, then the prisoner is still making proper use of state court procedures, and habeas review is still pending." Banjo v. Ayers, 614 F.3d 964, 969 (2010) (internal quotation omitted). Accord King v. Roe, 340 F.3d 821, 823 ("But if the petitioner simply attempted to correct the deficiencies, then the petitioner is still making proper use of state court procedures, and his application is still 'pending' for tolling purposes."), overruled on other grounds by Evans v. Chavis, 546 U.S. 189 (2006).
Having recognized that petitioner is not entitled to interval tolling during the period between the July 28, 2004 denial of his petition by the California Supreme Court and the November 23, 2004 filing of his petition with the Sacramento County Superior Court, the Court need not reach respondent's argument that petitioner unduly delayed in filing the latter petition.
In his opposition, petitioner seeks to explain the 118-day delay on the grounds that "he had no knowledge that the state court had reached a final resolution of his first petition (filed on 10-23-03), so he filed a second petition on 11-23-04. The first petition dealt with [petitioner's] original sentence, while the second petition was filed because he never heard anything back on the first petition." (Opp'n, ECF No. 28 at 3.)
The Court is skeptical about the veracity of this claim. It appears that petitioner has at no time, prior to the filing of his opposition, made mention of a failure to receive a response to his October 23, 2003 petition, despite having filed numerous habeas petitions in the interim. For example, petitioner failed to make mention of such an omission either in the habeas petition that petitioner filed with the Sacramento County Superior Court on November 23, 2004 (Lod. Doc. No. 7), or in the two habeas petitions that petitioner has filed in this action (ECF Nos. 1, 9).
Petitioner has also failed to provide any extrinsic evidence that would tend to support his claim, or to identify, or document, any efforts that he undertook to follow up on his October 23, 2003 petition when he allegedly did not receive a response. The fact that petitioner filed the subsequent (November 23, 2004) petition in the Sacramento County Superior Court rather than in the California Supreme Court (i.e., a court at the same level) also tends to belie his claim. The Court cannot accept petitioner's belated, unsupported representation as the sole basis for tolling the statute of limitations between October 23, 2003 and November 23, 2004.
c. Tolling for Second Habeas Petition
Respondent concedes that the statute of limitations was then tolled again between November 23, 2004, when the second petition was filed, and January 31, 2005, when the Sacramento County Superior Court issued its denial of this petition. This tolled the statute of limitations for another 69 days.
d. Tolling for Other Habeas Petitions
As noted, petitioner filed two other state habeas petitions: one on April 13, 2013, with the California Supreme Court; and the second on June 1, 2013, with the Sacramento County Superior Court. Because both petitions were filed after the statute of limitations had already expired, they do not count towards tolling. See Ferguson, 321 F.3d at 823.
e. Expiration of Statute of Limitations
Petitioner's statute of limitations therefore began to run on November 4, 2003. Factoring in the tolling for the first and second habeas petitions, and excluding the interval between these two petitions, the Court concludes that petitioner was required to submit his federal habeas petition on or before October 5, 2005. Since petitioner did not do file his petition in this court until April 19, 2014—eight and a half years later—it again appears to be untimely. //// ////
C. Petitioner is Not Entitled to Equitable Tolling
The final question is whether petitioner can avail himself of equitable tolling. "[A] 'petitioner' is 'entitled to equitable tolling' only where he shows '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland, 530 U.S. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
a. The Parties' Arguments
Petitioner's primary argument for equitable tolling is as follows:
From after the time that [petitioner] filed his second petition (11-23-04) up to the time he filed his third petition (4-13-13), [petitioner] was too ill and unable, rationally or factually, to personally understand the need to timely file, or seek out anyone else's help, to effectuate its filing.(Opp'n, ECF No. 28 at 4-5) (internal citations omitted). Petitioner elaborates on this argument in his first amended petition.
[Petitioner's] delusions made him incapable of rationally understanding the necessity of filing a timely habeas petition because before the delusions lifted, nothing anyone might say to him about the need to timely file would have altered his behavior.
Respondent argues that equitable tolling is unwarranted, writing:
Respondent has obtained a copy of Petitioner's complete mental health record. Respondent submits these mental health records as Exhibit A. Petitioner's mental health records during his entire incarceration, especially during the relevant time frame, do not reflect a mental disorder of a severity that would prevent him from understanding the need to file a timely federal petition and from enlisting the proper assistance . . . . The documents reveal that while Petitioner was included in the mental health treatment program, he participated as an outpatient in the Correctional Clinical Case Management System (CCCMS) level of care and was usually housed in the general prison population until 2008. [...] It appears from the record that Petitioner required a higher level of care in 2008 and was transferred to the EOP (Enhanced Outpatient Program) level. This occurred years after the limitations period expired and is therefore inconsequential. Moreover, Petitioner is noted as having a global assessment of functioning (GAF) score ranging from the mid-50s to 70 during the relevant time frame, which suggests only a mild to moderate impairment.(Motion, ECF No. 22 at 8-9) (internal citations omitted). Respondent goes on to cite numerous instances in petitioner's medical record when petitioner was identified as being stable while on medications. Id. at 9-10. Respondent also cites instances in the record describing petitioner as non-compliant in taking medications and experiencing consequent deterioration in his mental health; respondent argues that tolling is unwarranted under such circumstances. Id.
b. Overview of CDCR's Mental Health Care
Within CDCR, there are two outpatient levels of care and three in-patient levels of care. Evid. Hr'g Tr. 11:20-22. These levels of care are outlined in the CDCR's Mental Health Services Delivery System ("MHSDS"), and all new mental health staff are trained on the CDCR practices outlined in the MHSDS. Evid. Hr'g Tr. 13:10-11. Inmates with a mental illness are placed in one of these five levels of care based upon the mental health screening they receive at a reception center when they first enter CDCR custody. Id. 13:13-24. The Court will focus on the two outpatient levels of care since only they are relevant to an analysis of petitioner's claim.
i. Correctional Clinical Case Management System (CCCMS)
Of the levels of care addressed in the MHSDS, the Correctional Clinical Case Management System ("CCCMS") is the lowest level of mental health care that a prisoner can receive. Evid. Hr'g Tr. 11:22-25. The specific criteria for entry in the CCCMS program is (1) stable functioning in the general population, administrative segregation unit, or security housing unit; (2) criteria not met for higher levels of care; (3) exhibits symptom control or is in partial remission as a result of treatment; and (4) a Global Assessment of Functioning Scale ("GAF") score of 50 and above. Evid. Hr'g Tr. Ex. 2 at 12-3-5.
The GAF scores will be discussed in detail infra.
A threshold criteria for inmates receiving CCCMS level of care is whether they are experiencing current symptoms and/or require treatment for the current Diagnostic and Statistical Manual diagnosed Axis I serious mental disorders, such as schizophrenia (all subtypes), delusional disorder, schizoaffective disorder, and psychotic disorder not otherwise specified. Evid. Hr'g Tr. Ex. 2, 15:4-7. If an inmate does not have the aforementioned criteria or a recent episode of exhibitionism or a "medical necessity" (defined as the need for immediate mental health intervention to protect life and/or treat significant disability/dysfunction), then that inmate does not qualify for mental health care in the CDCR. Evid. Hr'g Tr. Ex. 2, 15:25-16:3.
Inmates in the CCCMS program are housed in general population, receive psychiatric services and individual follow-up by their primary clinician, have a treatment team, and sometimes receive group therapy. Evid. Hr'g Tr. 11:25-12:8. In terms of functioning, they are expected to be able to function within the general population and access other programs and services available to non-mentally ill inmates. Id.
The institutional goal for the CCCMS outpatient program is to provide mental health treatment to inmates who are able to function well within the general population and whose symptoms are mostly controlled, if not in remission, and who can go to work, school, and participate in activities that non-mentally ill inmates participate in. Evid. Hr'g Tr. 17:4-11.
ii. Enhanced Outpatient Program (EOP)
The second most intensive level of mental health care offered at CDCR is the Enhanced Outpatient Program ("EOP"). See Evid. Hr'g Tr. Ex. 3. This program, which is also outpatient, is characterized by a separate housing unit and structured activities for mentally ill inmates who, because of their illness, experience adjustment difficulties in a general population setting yet are not so impaired as to require 24-hour inpatient care. Id. The designated housing unit for EOP inmates has restricted access and alternative educational, work, and recreational opportunities. Id.
As with the CCCMS level of care, the overall treatment criteria for the EOP level of care is treatment and monitoring for current symptoms and/or treatment for the current and/or requires treatment for the current Diagnostic and Statistical Manual diagnosed Axis I serous mental disorders. Evid. Hr'g Tr. Ex. 3 at 12-4-2. As with CCCMS, it also includes medical necessity and exhibitionism. See id. 12-4-3. The specific treatment criteria include acute onset or significant decompensation of a serious mental disorder characterized by symptoms such as increased delusional thinking, hallucinatory experiences, marked changes in affect, and vegetative signs with definitive impairment of reality testing and/or judgments. Id. There may alternatively be an inability to function in general population based upon a demonstrated inability to program in work or educational assignments or other correctional activities; the presence of dysfunctional or disruptive social interaction including withdrawal, bizarre or disruptive behavior, extreme argumentativeness, or inability to respond to staff direction; or an impairment in the activities of daily living including eating, grooming and personal hygiene, maintenance of housing area, and ambulation. Id. Additionally, the GAF score must be less than 50. Id.
The institutional goal for the EOP inmates is to (1) provide short to intermediate term care (3-12 months for most cases) for inmates who do not require 24-hour inpatient care; (2) provide longer-term placement for inmate-patients with chronic mental illness whose symptoms have stabilized but whose level of functioning is insufficient to allow placement in General Population; and (3) to provide short-term secure custodial placements with clinical resources which address behavioral problems for mentally ill EOP inmates who are transitioning from Security Housing Units or Psychiatric Services Units. Evid. Hr'g Tr. Ex. 3 at 12-4-1 to 12-4-2.
c. GAF Scores
The MHSDS provides basic guidelines for the role that GAF scores play in determining the appropriate level of care for inmates. Evid. Hr'g Tr. Ex. 1, 16:8-12. The GAF score is a measure that was developed for clinicians to provide a judgment about their client's level of symptom severity and level of functioning on a scale of 1-100. Evid. Hr'g Tr. 22:22-25. It is broken down into 10-point ranges from 1-100, and each 10-point range has a description of the symptoms and functioning for that range. Id. 22:25-23:3; see also id. Ex. 1. As noted, inmates in the CCCMS program are expected to have a GAF score of 50 or above. Evid. Hr'g Tr. Ex. 2 at 12-3-5. EOP inmates are expected to have a GAF score of less than 50. Id. Ex. 3 at 12-4-4.
GAF scores were not created with the prison population in mind. Evid. Hr'g Tr. 85:25-86:2. But they were adapted by CDCR to indicate an inmate's level of functioning within the prison setting. Id. 86:4-10. A GAF score is typically assigned by the primary clinician, the social worker, or the psychologist on the inmate's treatment team. Id. 26:15-18. On a given day, the clinician would evaluate the inmate by considering their symptoms and how they are functioning that day. Id. at 23:14-22. They would then compare those symptoms to the 10-point ranges on the GAF scale and assign a number on the lower end of a range if they think the symptoms are more severe or on the higher end of the scale if they think the symptoms are less severe. Id. 23:23-24:1. When an inmate has, for example, symptoms that are more severe than their functioning seems to be, then, per DMS standards of construction, the clinician would assign a GAF score that reflects the worse of the two. Id. 24:3-6; 88:24-89:3. Notwithstanding the DMS standard of construction, a clinician may also assign a GAF score that is an amalgamation of the functioning v. symptoms scores (e.g., an average of the two numbers). See id. 90:21-91:16. Sometimes, a clinician may assign a GAF score based on the level of care that the clinician thinks an inmate need. Id. 87:10-24. Since the GAF score could trigger a higher or lower level of care and, thus, affect the inmate's inter- and intra-institution movement (e.g., transfer to an institution to provide a higher level of care), the mental health professionals who were assigning these scores in this way were cognizant of the effect of the chosen GAF score. Id. 25:13-20.
A single GAF score that appears inconsistent with an inmate's level of care would not raise a concern. See Evid. Hr'g Tr. 27:7-12. But if a CCCMS inmate received a GAF score of 45 over a period of weeks or a month, then the clinician would inquire further because of the significant of the GAF scores in assigning program status in CDCR. Id. 27:11-17.
As delineated in the "Global Assessment of Functioning (GAF) Scale," the symptoms and functionality for three levels of GAF scores that are relevant to the Court's analysis are reproduced here:
[GAF Scores Between 61-70] Some mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationshipsEvid. Hr'g Ex. 1.
[GAF Scores Between 51-60] Moderation symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)
[GAF Scores Between 41-50] Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)
The Diagnostic and Statistical Manual, Fifth Edition, was published in 2013, and it removed the GAF scores entirely. Evid. Hr'g Tr. 27:24-28:3. In Dr. Deserie Barragan's expert opinion, the GAF score was removed because it lacked "conceptual clarity with respect to the symptoms and functioning levels...." Id. 28:6-14. She testified that it also lacked reliability, meaning it didn't always measure what it said it measured. Id.
d. Petitioner's Mental Health Records
With this overview of CDCR's mental health care system, the Court now turns to petitioner's mental health records. In particular, the Court will focus on four distinct periods of time: (1) first, when petitioner entered CDCR until he exhausted his direct appeal (May 2001 to November 2003); (2) second, when the statute of limitations was statutory tolled while petitioner pursued his state habeas petitions (October 2003 to January 2005); (3) third, when, absent equitable tolling, petitioner was required to submit his habeas petition (the interval between the first and second habeas petitions, and then between February 2005 and October 2005); and, lastly, (4) immediately following the expiration of the statute of limitations through petitioner's placement in the EOP level of care (October 2005 to June 2008).
i. Mental Health During Pendency of Direct Appeal
During the first period between May 22, 2001—when petitioner was found guilty of five counts of first-degree robbery—to November 4, 2003—when the limitations period began to run absent any tolling, petitioner was actively pursuing his direct appeal in the California courts.
Petitioner entered CDCR custody on or around September 5, 2001, at Deuel Vocational Institute ("DVI"). See ECF No. 32-1 at 3. At intake, he completed an "Educational Test" and was found to have "high cognitive test scores and did not require adaptive functioning evaluation." Id. His mental health screening, however, revealed the need for further evaluation because petitioner self-reported that he was paranoid schizophrenic and had attempted suicide in the past. Id. 6-7. During a subsequent mental health evaluation, petitioner repeated this information and claimed to have audio and visual hallucinations. Id. 9-11. The examining clinician noted that petitioner had no issues with perception (e.g., hallucinations) or thought content (e.g., delusions, preoccupation) when he was on Prolixin. Id. Petitioner received a GAF score of 65. Id. On or around the same date, petitioner was assigned a second GAF score of 50 by another clinician, who noted that petitioner had been hearing voices from an early age. See id. 12-14. Both clinicians recommended the CCCMS level of care. Id. 11, 15.
Prolixin is an antipsychotic medication. Evid. Hr'g Tr. 43:2-3.
Petitioner was housed at DVI until his transfer to High Desert State Prison ("HDSP") on or around November 2001. See ECF No. 32-1 at 16. At HDSP, his intake GAF score was 55. Id. 16-17. He was noted to have "poor judgment + decision making," and he "present[ed] [with] slow process + poor cognition." Id. His recurring "delusions of believing he is God + that he can make things happen to people by his thoughts" were also noted. Id. 19. His treatment plan, dated November 7, 2001, shows "slow" intellectual functions, "poor" organization of thought, "impaired" reality contact, and thought quality that was "delusional at times." Id. 27. His hallucinations were present, telling him that "he has special powers / or laugh at him." Id.
In 2002, petitioner's GAF scores ranged from 50-68. See generally ECF No. 32-1 at 31-46. In February, he was "speak[ing] coherently about incarceration" with "no gross evidence of psychotic or disorganized thinking," id. 34; by April, he was not sleeping well, the voices were teasing him, "trying to humiliate me or something," and he admitted that he was yelling at the voices, id. 35; in May, he continued "to have well-developed religious ideation that becomes part of his delusions process," id. 36; in October, the auditory hallucinations continued, as did his paranoia, racing thoughts, perpetual disturbance and distortions, id. 43; but by December, he seemed "pretty happy" and "well-oriented," with the majority of his behaviors (sleep, speech, mood, presenting attitude) considered "within normal limits," though he was described as "hypomanic," id. 46.
In 2003, petitioner's condition became slightly more symptomatic with GAF scores ranging from 54-65. See generally ECF No. 32-1 at 49-68. In January, petitioner stated that he had been hearing voices since he was 5 years old. Id. 50. When he is off his medication, the voices are "demeaning," telling him to hurt himself or others. Id. 49. In February, he was noted to talk to and argue with his "voices" daily, id. 52, and his hallucinations were "command[ing]" him to hurt himself and others, id. 53-56. In May, petitioner claimed his medication "isn't working like it used to" and that the "[government] is after [him]"; petitioner was described as "paranoid" with "grandiose ideation." Id. 60. In June, petitioner continued "having auditory hallucinations although they essentially keep him company and occupy him." Id. 61. In September, petitioner was alert, cheerful, and communicative; he was actively pursuing his legal issues and communicated "often" with his attorney. Id. 63.
ii. Mental Health During Pendency of State Habeas Petitions
Immediately following the conclusion of his direct appeal, petitioner pursued two state habeas petitions: the first was filed on October 23, 2003, and denied on July 28, 2004, and the second was filed on November 23, 2004, and denied on January 31, 2005. During this period, petitioner's mental health records continued to reveal auditory hallucinations and symptoms of paranoid schizophrenia.
In mid-December 2003, petitioner "still ha[d] auditory hallucinations but they are not bothering him that much at present time." ECF No. 32-1 at 66. Just two weeks later, he was placed in a holding cell because he was found "yelling and screaming" in his own cell, he "couldn't sit still or sleep," and he had "[visuals] of faces, words" "all the time." Id. 68. His GAF score on this day was 61. Id.
In 2004, petitioner's GAF scores ranged between 55 and 65. See generally ECF No. 32-1 at 69—ECF No. 32-2 at 2. In March, members of his Interdisciplinary Treatment Team decided to retain him in CCCMS even though he had "command" auditory hallucinations that directed him "to hurt self &/or others." ECF No. 32-1 at 69-74. Later that same month, the "voices" were telling petitioner that he was God; on that same date, he received a GAF score of 63. Id. 75. In June, he was found to be "jovial," "happy," and "stable," even though he was also found to be "dissociative unstable." Id. 77. In August and September, he was programming positively with no complaints and with medication compliance. See id. 81-82.
On or around August 2004, petitioner was transferred to Folsom State Prison ("FSP"). See ECF No. 32-1 at 84-88. There, he continued to report auditory hallucinations and delusions. Id. Notes from October from his Interdisciplinary Treatment Team reflect that, while the delusions and hallucinations continued, CCCMS continued to be the appropriate level of care for him. Id. at 89-91. In early-December, petitioner's symptoms were "in remission," and in late-December, with a GAF score of 55, he "[reported] that he is feeling better [because] a friend of his has finished a writ for him about reducing his sentence and he is hopeful re the outcome." ECF No. 32-2 at 1-2. In this same report, petitioner was described as having "both paranoid and grandiose delusions about 'being special' and being sent to prison by his voices to keep him safe until he can take over the world. He also believes that his mother and other relatives are conspiring against him and withholding his inheritance that he received from his great grandfather. He believes that his mother is able to see through his eyes and one of the voices he hears is hers." Id.
Petitioner's mental health records during his pursuit of his state habeas petitions concludes with medical notes from January 2005. See ECF No. 32-3 at 3-5. On January 6, petitioner was deemed to be "improving" with "less rambling and tangential" speech than the prior session. On January 28, petitioner was found to be "stable" even though he requested "to see Dr. Staples (who does not exist)." Id. 5. Petitioner's final GAF score during this period was 65. Id.
iii. Mental Health During Limitations Period
As discussed above, the statute of limitations began to run after petitioner's first state habeas petition was denied and then tolled again during the pendency of the second state habeas petition. Factoring in that interval and excluding the pendency of the state habeas petitions, petitioner was required to submit his federal habeas petition on or before October 5, 2005. The Court thus now turns to the third period of petitioner's mental health records, focusing on those dated through October 5, 2005, when the statute of limitations expired.
On February 1, 2005, petitioner underwent a suicide risk assessment because he had said that he wanted to "end it all" while in his cell. ECF No. 32-2 at 6. In April 2005, petitioner, who was assigned a GAF score of 55, complained about issues with his cellmate and claimed that his statement to "end it all" referred to his housing issues. Id. 7-8. His medical notes indicate that he was having "some definite signs of delusion and paranoia," but his "judgment and insight are good." Id. On April 13, he was found to be "organized and goal directed" with some signs of delusions and auditory hallucinations; he was assigned a GAF score of 70. Id. 10.
In July 2005, petitioner continued to report auditory and visual hallucinations and to exhibit paranoia. ECF No. 32-2 at 15. His GAF scores that month were in the mid- to upper-60s, he was deemed "stable with med compliance," there were "no signs of internal preoccupation," and his thought process was noted to be "clear and rational." Id. 15-16. In September, he was "doing well" even though his thought process was "flight" and his thought content included "delusions"; his assigned GAF score was 70. Id. 17. Finally, on October 3—two days before the statute of limitations expired—he "appear[ed] stable with med," he was eating and sleeping well, he reported no depression or anxiety, he was "not as paranoid," and he was "doing well with cell mate." Id. 20.
"Flight" is a term use to describe very disorganized thinking, where an individual's train of thought is hard to follow. See Evid. Hr'g Tr. 48:5-8.
iv. Mental Health After the Statute of Limitations Expired and Before Petitioner's Placement in EOP
Finally, the Court considers the period following the expiration of the statute of limitations in October 2005 through petitioner's transfer to the EOP level of care in June 2008.
On October 18, 2005, petitioner's Interdisciplinary Treatment Team assigned petitioner a GAF score of 64. ECF No. 32-2 at 21-23. Petitioner was doing well on medication, he was taking care of his activities of daily living, he was found to be alert and smiling, and his cognition was deemed within normal limits. Id. He did, however, have "poor reality testing," and his insight, judgment, and concentration were "poor." Id. Nonetheless, he was deemed "stable," and the team retained him in CCCMS. Id. In December 2005, his GAF was again a 64. Id. 27.
Petitioner began 2006 with a GAF of 66 and reports of "doing wonderful on present medications - no issues today - doing great for the past 90 days." ECF No. 32-2 at 28. His thought process and thought content were within normal limits, he was cooperative, he had appropriate affect, and he was oriented as to people, place, and time. Id.
Around this time, petitioner's non-compliance with his psychiatric medications began to be noted. ECF No. 32-2 at 29 ("Patient states he hasn't been taking his 4 meds for 3 weeks + doing good. Hears voices but states he's able to deal with them. States he's starting to work out again.") On March 1, petitioner indicated that he was "feeling good off 4 meds, feels 'at ease.' Continues to hear voices but states he's able to deal [with] them." Id. 30. On March 29, he was assigned a GAF of 65 after he was found to be "alert, oriented. Rational. Clean. No delusions exhibited. ... No distress. Relates well." Id.
On May 10, petitioner reported increased auditory hallucinations. ECF No. 32-2 at 31. He stated that he "feels he's responding too much to them." Id. The clinician wrote that petitioner "seems genuinely mentally ill. Some delusions noted," and assigned a GAF score of 58. Id. On May 17, petitioner stated that he was having "loud conversations [with] his voices + states his voices are getting out of hand." Id. 32. His mood was "a little rough," and a 4-week follow-up was ordered. Id.
On June 14, petitioner's "mental stability [was] better" after restoring his medication. ECF No. 32-2 at 33. On June 29, the "voices [were] less severe + now 'in-check.'" Id. Petitioner said that "he keeps his thoughts to himself...goes to library a lot." Id.
On August 9, petitioner indicated that he was "doing 'alright'" with occasional auditory hallucinations. ECF No. 32-2 at 34. The following month, he was deemed "stable in all critical areas," managing symptoms "very well at present," had normal thought processes, and was assigned a GAF score of 65. Id. 35. On October 4, he was again found to be "stable in all critical areas" with "no current issues," normal thought processes, and "no overt psychotic thinking." Id. 36. Once again, his GAF score was 65. Id. A medical note did, however, indicate that petitioner was non-compliant with his medications due to Ramadan. Id. 37.
On October 17, the Interdisciplinary Treatment Team assigned petitioner a GAF score of 65. ECF No. 32-2 at 39-42. They noted that petitioner was taking care of his activities of daily living, and he had "adequate [cognitive] skills" and "intact" cognition (to include intellectual functions, organization of thought, association of thought, reality contact, and thought quality). Id.
On November 1, petitioner sought to restart his medications since Ramadan was then over. ECF No. 32-2 at 43. Despite his professed interest in restarting his medication, however, a medical note dated November 24 revealed that petitioner failed to show for evening medication line for four consecutive days. See id. 44. On December 7, he failed to show to evening medication line for seven days. Id. 46. On December 13, petitioner was assigned a GAF score of 65 after reporting "feeling stable in all areas." Id. 47.
In 2007, petitioner's symptoms became more marked. By March 2, he had not been taking his psych meds for 2-3 months. See ECF No. 32-2 at 49. While he was deemed "stable in all critical areas," the clinician noted an increase in psychotic signs and symptoms. Id. His thought process was "tangential," and his thought content included "delusions." Id. His GAF score was 62. Id. On March 5, it was determined that petitioner did not meet the Keyhea criteria for forced administration of psychiatric medication. Id. 50. On March 29, petitioner was assigned a GAF score of 55. ECF No. 32-2 at 51. At that time, his thought disorder had increased, his thought processes were "circumstantial," and his thought content was delusional. Id. He self-referred to the clinician on that date, requesting psych meds because he now felt "ready." Id. He also stated that he wanted a job, and the clinician referred him to a correctional counselor. Id.
When an inmate refuses to take his medication, a psychiatrist can seek a court order for the administration of involuntary medication. Evid. Hr'g Tr. 28:23-29:15. This used to be called a "Keyhea Order," but is now referred to as Penal Code 2602. Id. The threshold criteria for this order is that the patient is in a crisis bed or an in-patient setting and (a) their symptoms are so severe that they present as a danger to themselves or others due to a severe mental disorder or (b) they're so gravely disabled that they cannot take care of themselves. Id.
For the remainder of 2007, petitioner's GAF scores were 60, and he continued to be inconsistently compliant with his medication. See ECF No. 32-2 at 52-59, 63-65, 67. For example, during a period when he repeatedly missed the medication line, his thoughts were "tangential" and "disordered," and he provided his clinician with a "long rambling letter" to then-Governor Schwarzenegger to release him and give him a "mayorship." Id. 58. When he was on medication, however, he felt well with decreased hallucinations and symptoms. Id. 64-66. On December 7, petitioner was noted to be functioning at FSP well ("gets along well with his new cellie, doesn't get write-ups, etc.), but his symptoms were reappearing "based on the fact that he made paranoid and tangential statements." Id. 67.
In January 2008, petitioner wanted to quit his medication entirely. See ECF No. 32-2 at 68. He then asked to restart them in February, though his subsequent level of compliance was unclear. See id. 68-69. His GAF score was 60 on that visit. Id. On March 18, petitioner again received a GAF score of 60, was getting along well with his cell mate, and was compliant with his medication. Id. 70. By April 25, petitioner had been taking his medication only once a week, and his speech was described as "somewhat loose but makes some good points." Id. 71.
On May 23, petitioner's paranoia and symptoms increased to the point of concern. See ECF No. 32-2 at 71. Petitioner claimed he was not taking his medications because "someone might put poison in them." Id. His auditory hallucinations were still present, and he had "mildly loose speech (worse when not answering structured questions)." Id. After expressing concern about petitioner's condition, the clinician wrote, "I do not think this [patient] will get better in [Folsom State Prison]." Id. Petitioner was assigned a GAF score of 48 and referred to the EOP level of care. See id. 72-78. On June 3 and June 10, he was again assigned a GAF of 48. Id. 79-80. On June 16, petitioner admitted to not taking his medications for 4-5 months "for fear of poisoning." Id. 81. On June 17, he was assigned a GAF of 45. Id. 82.
Petitioner was transferred to California Medical Facility ("CMF") on June 27, 2008, to participate in the EOP level of care. See ECF No. 32-2 at 86. There, he was examined by a clinician who assigned a GAF score of 40. Id. 75. During the evaluation, it was noted that petitioner had been "pacing, yelling, challenging his cell mate to fight, standing over him at night while staring and gritting his teeth. He also had a sharpened toothbrush." Id. 87. Petitioner also "thought people are plotting against him but could not explain. [Patient] experiences thought broadcasting but denies special powers. Although he says he wrote the Governor to get a job with the state, he has adequate problem solving skills for routine activities." Id. 89.
On August 7, the examining clinician wrote that "[t]here was evidence of psychosis." ECF No. 32-2 at 100. Petitioner's "[t]houghts were disorganized, often speaking in word salad, using words together in nonsensical sentences, mostly with paranoid themes." Id. On October 6, he was observed talking to a wall on his way to breakfast. Id. 32-3 at 10. On October 7, he was seen by his Interdisciplinary Treatment Team, who decided to continue petitioner in the EOP level of care due to his "continued disorganization, intermittent paranoia, delusions, and difficulty programming." Id. 12. During the remainder of 2008, petitioner continued to have issues with medication compliance. See id. 10, 13, 17, 19, 21, 25, 27.
e. Petitioner's Expert Witness
i. Dr. Barragan's Experience
At the November 12, 2019, evidentiary hearing, Dr. Barragan testified as petitioner's expert witness. Dr. Barragan works as a consulting psychologist for the California Department of State Hospitals and has extensive experience reviewing mental health records and assessing the needs of mentally ill inmates. Evid. Hr'g Tr. 6:1-3. In her present role, she travels to different correctional institutions mostly to evaluate mentally ill prisoners for severe mental disorders and violence risk or sex offender risk. Id. 6:3-7. Previously, she worked as a staff psychologist at the California Institution for Men ("CIM") where she conducted initial screening and evaluations of inmates arriving at the institution's reception center. Id. 6:11-19. For the inmates who tested positive for cognitive and developmental disabilities, Dr. Barragan completed further evaluations, provided diagnoses, and decided what level of mental health care the inmates should receive within the prison system. Id. 6:18-25.
Dr. Barragan then became involved in developing programs and providing treatment to the severely mentally ill inmates at CIM while they awaited transfer to other institutions. Evid. Hr'g Tr. 7:4-20. Dr. Barragan's new role followed a consent decree entered in the class action, Coleman v. Schwarzenegger, Case No. 90-cv-0520-LKK-JFM (E.D. Cal.). Id.
In 2004, Dr. Barragan helped lead a team of psychiatrists and psychologists working on the "Unidentified Needs Assessment Project," which was tasked by the Coleman Special Master with finding out how many severely mentally ill prisoners were in CDCR who needed a higher level of care at the Department of State Hospitals. Evid. Hr'g Tr. 8:5-21. In pursuit of that goal, Dr. Barragan and members of the team traveled to all CDCR institutions that housed mentally ill inmates. Id. Their work involved reviewing medical records and interviewing inmates. Id.
Dr. Barragan has since worked at several CDCR institutions in supervisory roles where she reviewed charts to ensure compliance with the Coleman court mandates, supervised the mental health programs at California Men's Colony, and served as the clinical director of the mental health crisis bed at CFM for approximately four years. See Evid. Hr'g Tr. 8:24-10:4.
Dr. Barragan has never met petitioner. Evid. Hr'g Tr. 30:13-14.
ii. Testimony Regarding Petitioner's Mental Health Records
At the hearing, Dr. Barragan identified several records that she believed included a GAF score that did not accurately reflect petitioner's listed symptoms. While Dr. Barragan's testimony spanned much of petitioner's mental health records (from 2001 through 2011), the Court will address only those that are included within the timeframes of one of the four periods identified supra.
Dr. Barragan first identified a November 7, 2001, Mental Health Treatment Plan that showed "slow" intellectual functioning, "poor" organization of thought, "impaired" reality contact, and thought quality that was "delusional at times." ECF No. 32-1 at 27. Petitioner had stated that he hears voices that either laugh at him or tell him he has special powers. He also believed that he was God. Based on these symptoms, the examining clinician assigned a GAF score of 55. Id. 26. Dr. Barragan disagreed with this assessment, noting that the symptoms described appear to be more severe than a GAF score of 55 would suggest. See Evid. Hr'g Tr. 39:7-18. In her opinion, the GAF should have been in the range of 31-40. Id.
In an Interdisciplinary dated May 3, 2002, petitioner was noted to have "well developed religious ideation that becomes part of his delusional process." ECF No. 32-1 at 36. His GAF score on that date was 55. Dr. Barragan testified that the score should have been "closer to 40" because of evidence of impaired reality contact. Evid. Hr'g Tr. 43:22-44:15.
In an Interdisciplinary Progress Note dated May 1, 2003, petitioner was noted to be hearing voices of his "family + others" apparently telling him that he was going to "get[] out soon." ECF No. 32-1 at 60. Petitioner also said, "I will sit on 3rd throne," and he was deemed paranoid with grandiose ideation, stating that the "[government] is after me." Petitioner was assigned a GAF score of 56, but Dr. Barragan believed the symptoms align more accurately with a score between 31-40. Evid. Hr'g Tr. 42:18-43:9.
In an Interdisciplinary Progress Note dated December 31, 2003, petitioner was seen on an emergency basis after a sergeant requested a review because petitioner was found yelling and screaming in his cell. ECF No. 32-1 at 68. The medical note included a notation of "[visuals] of faces, words," "all the time." The clinician assigned a GAF score of 61, but Dr. Barragan thought a GAF score "closer to zero" should have been assigned because "his behavior was significantly influenced by delusions or hallucinations." Evid. Hr'g Tr. 40:11-41:13.
In an Interdisciplinary Progress Note dated December 23, 2004, petitioner reported "feeling better [because] a friend of his has finished a writ for him about reducing his sentence and he is hopeful re the outcome." ECF No. 32-2 at 2. Additionally, he was noted to have "both paranoid and grandiose delusions about 'being special,' and he believed that "his mother and other relatives [were] conspiring against him and withholding his inheritance ...." He also claimed that his mother was able "to see through his eyes and one of the voices he hears is hers." Id. Based on these symptoms, the assigned GAF score was 55. Dr. Barragan testified that the symptoms better correspond with a GAF score of 38 or 40. Evid. Hr'g Tr. 45:15-46:18.
In an Interdisciplinary Progress Note dated September 21, 2005, petitioner said he was "doing well," but his thought process was described as "flight" and he had delusional thought content. ECF 32-2 at 17. Despite these symptoms, his assigned GAF score was 70. Dr. Barragan testified that the GAF score should have been 40 because petitioner was having difficulty communicating due to disorganized thoughts and delusions. Evid. Hr'g Tr. 48:10-18.
In an Interdisciplinary Progress Note dated March 2, 2007, petitioner was deemed "stable in all critical areas," but the clinician noted increased psychotic signs and symptoms even though petitioner was found to be managing the behaviors. ECF No. 32-2 at 49. Petitioner's thought process was described as "tangential," and his thought control was described as "delusional." His GAF score on that day was 62. Dr. Barragan believed that a GAF score closer to 38 better reflected his impaired reality testing and impaired communication. Evid. Hr'g Tr. 48:25-49:15.
In an Interdisciplinary Progress Note dated March 29, 2007, petitioner self-referred himself so that he could restart his psych meds. ECF No. 32-2 at 51. His thought process was noted to be circumstantial, his thought content was delusional, and the clinician noted his thought disorder had increased. He was assigned a GAF score of 55. Dr. Barragan testified, based on these symptoms, his GAF should have been between 31 to 40. Evid. Hr'g Tr. 51:19-52:15.
In an Interdisciplinary Progress Note dated May 18, 2007, petitioner's GAF score was 60. ECF No. 32-2 at 53. The notes indicate that petitioner's delusions had been increasing again, his thought processes were tangential, and his thought content was delusional. Dr. Barragan testified that a GAF of 35 or 38 would have been more appropriate. Evid. Hr'g Tr. 52:17-23.
In an Interdisciplinary Progress Note dated June 15, 2007, petitioner was again assigned a GAF score of 60. ECF No. 32-2 at 54. At this point, he continued to be delusional with loose thought processes. Dr. Barragan believed that the GAF should have been 38 or 39. Evid. Hr'g Tr. 53:21-54:15.
In an Interdisciplinary Progress Note dated June 28, 2007, petitioner's GAF score was still 60 despite having difficulty managing psychotic signs and symptoms and having delusional thinking. ECF No. 32-2 at 56. Dr. Barragan opined that the GAF score should have been 38. Evid. Hr'g Tr. 56:11-21.
In an Interdisciplinary Progress Note dated December 7, 2007, petitioner's GAF score continued to be 60 even though he had "tangential" and "loose thought processes," paranoia, and reappearing symptoms. ECF No. 32-2 at 67. Dr. Barragan testified that the GAF score should have been 38. Evid. Hr'g Tr. 60:13-23.
In a Mental Health Treatment Plan dated July 1, 2008, after petitioner was transferred to participate in the EOP program at CMF, he was assigned a GAF score of 40. ECF No. 32-2 at 97-99. His symptoms at the time include "paranoid ideation, disorganized thought process, chronic [auditory hallucinations], thought broadcasting, grandiose and paranoid delusions, and rapid speech." Id. 99. Dr. Barragan believed the GAF score should have been closer to 30. Evid. Hr'g Tr. 61:5-25.
Dr. Barragan also identified several records that purportedly included high GAF scores, but she did not provide an alternate GAF score due to lack of information in the medical notes. See Evid. Hr'g Tr. 69:69-77:5. Suffice it to say, she would have assigned a lower GAF score.
f. Analysis of Equitable Estoppel Argument
The Court turns now to petitioner's equitable estoppel argument. To reiterate, petitioner argues that his "delusions made him incapable of rationally understanding the necessity of filing a timely habeas petition because before the delusions lifted, nothing anyone might say to him about the need to timely file would have altered his behavior." Pet.'s Opp'n 5 ¶ 11.
At the outset, there is no dispute that petitioner has been suffering from paranoid schizophrenia and hallucinations since at least his entry into CDCR custody. It is also evident that petitioner's symptoms were marked and they increased over time, made worse in part due to his refusal to take his medication, a decision that itself appears to have been directly attributable to his paranoid schizophrenia since he sometimes believed that he was being poisoned. Petitioner's auditory hallucinations, which he experienced since he was 5 years old, were described as "command" voices, directing him to hurt himself and/or others. His thought processes were routinely described as "tangential" and "loose," his thought content was considered delusional by multiple clinicians, and his speech was described as disorganized and rambling.
He was paranoid, believing that the government was tracking him, that people were plotting against him, or that people wanted to hurt him, as in December 2004 when he was convinced that his mother and other relatives were conspiring against him and withholding his inheritance or when, on numerous occasions, he declined to take his medications because he believed he was being poisoned. At times, he thought he was God or Superman or that he had special powers. Additionally, he was often disconnected from reality, as when, in January 2005, he requested to see a "Dr. Staples" who did not exist or when, in August 2007, he wrote a rambling letter to then-Governor Schwarzenegger asking for a "mayorship."
Dr. Barragan, with extensive experience reviewing medical records and working with mentally ill inmates, believed that petitioner's symptoms were so severe that he should have been placed in the EOP level of care sooner than he was. She cautioned against assigning too much weight to the GAF scores since they are no longer used because of their unreliability based, in part, on the different methods used by clinicians to assign the scores and because the scores did not always measure what it was supposed to measure. To highlight this point, she cited to several GAF scores that appeared inconsistent with petitioner's symptoms, and she provide her own alternative GAF scores:
• A GAF score of 55 on November 7, 2001, should have been in the range of 31-40;
• A GAF score of 55 on May 3, 2002, should have been closer to 40;
• A GAF score of 56 on May 1, 2003, should have been between 31-40;
• A GAF score of 61 on December 31, 2003, should have been closer to zero;
• A GAF score of 55 on December 23, 2004, should have been 38 or 40;
• A GAF score of 70 on September 21, 2005, should have been 40;
• A GAF score of 62 on March 2, 2007, should have been 38;
• A GAF score of 55 on March 29, 2007, should have been between 31 to 40;
• A GAF score of 60 on May 18, 2007, should have been 35 or 38;
• A GAF score of 60 on June 15, 2007, should have been 38 or 39;
• A GAF score of 60 on June 28, 2007, should have been 38;
• A GAF score of 60 on December 7, 2007, should have been 38; and
• A GAF score of 40 on July 1, 2008, should have been closer to 30.
In each of these instances, Dr. Barragan referred to symptoms that were, in her expert opinion, too severe to justify the high GAF scores. These symptoms included impaired reality testing, grandiose delusions, auditory and visual hallucinations, paranoia, disorganized and tangential thinking, problems with communication, and/or severe psychotic symptoms demonstrated by yelling and screaming in his cell. By focusing on the severity of these symptoms, Dr. Barragan suggested that the GAF scores were likely assigned based on the wrong measure. That measure, per Dr. Barragan, may have been the clinicians' motivation to retain petitioner in the CCCMS level of care, thereby assigning scores over 50 (the minimum cutoff for placement in the CCCMS program) even though his symptoms would have necessitated scores well under 50 - a "common practice" in Dr. Barragan's experience.
The Court will credit Dr. Barragan's testimony that petitioner's assigned GAF scores were likely too high in some records considering the severity of petitioner's symptoms. With that said, Dr. Barragan also testified that clinicians' approach to the assignment of GAF scores varied. Whereas some complied with the DSM standard of construction by applying a GAF score that was the lower of the two categories (symptoms and functioning), she acknowledged the possibility that clinicians may have instead assigned a GAF score based on an average or an amalgamation of the categories - that is, if an inmate's symptoms warranted a GAF score of 40 but his functioning warranted a GAF score of 70, a clinician may have chosen a number somewhere in the middle.
This analysis thus leads to the determinative question here: has petitioner met the "high threshold" to show that he was so mentally unwell (so symptomatic) that his illness prevented him from filing his federal habeas petition any earlier? Following a thorough review of petitioner's mental health records, briefs, and evidence submitted at the evidentiary hearing, the Court is forced to conclude that petitioner has not met his burden. Here, the evidence does not show that his symptoms or functioning during the limitations period were any different than the previous periods when he had already demonstrated his ability to challenge his conviction (whether thought a direct appeal or state habeas petitions) despite the severity of his symptoms. This conclusion is highlighted by comparison to petitioner's mental health records for the period immediately after the limitations period expired, which showed a marked exacerbation in petitioner's symptoms and functionality, leading eventually to his placement in EOP.
Therefore, turning to petitioner's functionality, Dr. Barragan acknowledged that details regarding petitioner's functioning were largely absent from the mental health records. She did recognize that petitioner was able to take care of his activities of daily living, including eating, showering, etc. Evid. Hr'g Tr. 105:20-25. She also acknowledged that, despite his symptoms, it was possible (though unclear from the record) that petitioner was functional enough to challenge his conviction and/or to seek help from other inmates and/or staff in pursuit of that goal. See, e.g., Evid. Hr'g Tr. 103:17-104:8, 108:4-9, 115:7-116:18.
But the Court need not entertain hypotheticals or possibilities or read between the lines when addressing petitioner's level of functioning. This is because there is already unequivocal evidence that, notwithstanding the severity of his symptoms, petitioner was sufficiently functional to challenge his conviction during two specific periods of time: throughout his direct appeal and throughout his state habeas petitions.
First, the evidence shows that petitioner was able to pursue his direct appeal from May 2001 through November 2003 and to communicate "often" with his attorney (see ECF No. 32-1 at 63) despite notations in his mental health records from multiple clinicians regarding his paranoid schizophrenia; audio and visual hallucinations that caused him to yell at voices or that commanded him to hurt himself or others; "delusions of believing he is God + that he can make things happen to people by his thoughts" or that he has "special powers"; "poor judgment + decision making," "slow process + poor cognition," "slow" intellectual functions, "poor" organization of thought, "impaired" reality contact; racing thoughts, perpetual disturbance and distortions; and paranoia that the "[government] is after [him]." Per Dr. Barragan, records from this period listed symptoms that warranted GAF scores between 31 and 40, which would have resulted in petitioner's exclusion from CCCMS and placement in EOP. But even if petitioner's symptoms were so severe to warrant a more restrictive environment with a higher level of care, the fact remains that petitioner was functional enough with lesser care to challenge his conviction on direct review.
Similarly, between October 2003 and January 2005, petitioner was functional enough to pursue two state habeas petitions and to consult with a friend who drafted one of the writs (see ECF No. 32-2 at 2) despite notations in his mental health records revealing that he was "yelling and screaming" in his cell, had "[visuals] of faces, words" "all the time"; had "command" auditory hallucinations that directed him "to hurt self &/or others;" the "voices" were telling him that he was God; he was "dissociative unstable"; had "both paranoid and grandiose delusions about 'being special' and being sent to prison by his voices to keep him safe until he can take over the world; believed that his mother and other relatives are conspiring against him and withholding his inheritance; believed that his mother is able to see through his eyes and one of the voices he hears is hers; had "rambling and tangential" speech; and had requested "to see Dr. Staples (who does not exist)." Per Dr. Barragan, records from this period listed symptoms that warranted GAF scores between zero and 40, which would have again resulted in petitioner's exclusion from CCCMS and placement in EOP (or even an in-patient setting). But despite the severity of his symptoms, the undisputed facts demonstrate that petitioner was still functional enough to challenge his conviction on collateral review.
The limitations period (the interval between petitioner's state habeas petitions and then from February 2005 to October 2005) is when petitioner was required to submit his federal habeas petition, absent equitable tolling. For this period, his records reveal that he received GAF scores ranging from an outlier low of 55 to a prolonged period of upper-60s and two 70s—the highest scores in his entire mental health record. As compared to his earlier medical records, petitioner's symptoms appear noticeably less pronounced during this period, which is not to say that they were wholly absent. To the contrary, he had problems with his cellmate and wanted to "end it all"; he was having "some definite signs of delusion and paranoia," but his "judgment and insight are good"; he was "organized and goal directed" with some signs of delusions and auditory hallucinations; he continued to exhibit paranoia; there were "no signs of internal preoccupation," and his thought process was "clear and rational"; his thought process was described as "flight" and his thought content was "delusion[al]." Dr. Barragan took issue with a 70-score on September 21, 2005. She claimed that, because petitioner's thought process was described as "flight" and he had delusional thought content, his GAF score should have been 40 due to apparent difficulty communicating on account of disorganized thoughts and delusions. These same issues, however, were present during the pendency of petitioner's direct review and collateral challenges to his conviction. Arguably, these issues were more severe then.
Petitioner's mental health records during the final period noted here, which immediately followed the expiration of the statute of limitations (i.e., October 2005 through June 2008), starkly contrasts when the records from the preceding three periods (that of his direct appeal, that of his state habeas petitions, and that of the limitations period). In this fourth and final period, petitioner's GAF scores started in the mid-60s, transitioned to 60 for the majority of 2007, and then dropped steeply until it was determined that he needed a higher level of care. At the beginning of this period, the mental health notes reveal that his cognition was within normal limits, but he had "poor reality testing," and his insight, judgment, and concentration were "poor." His thought process and thought content were within normal limits, he was cooperative, he had appropriate affect, and he was oriented as to people, place, and time. Over time, and with increased medication non-compliance, his auditory hallucinations increased, to the point where he felt he was "responding too much to them"; he "seem[ed] genuinely mentally ill"; and he was having "loud conversations [with] his voices + states his voices are getting out of hand." In early-2007, petitioner had not been taking his psych meds for several months, which resulted in an increase in psychotic signs and symptoms. His thought process transition from "normal limits" to "tangential," "circumstantial," and "disordered"; his thought content was delusional; and his thought disorder had increased. He wrote a "long rambling letter" to then-Governor Schwarzenegger to release him and give him a "mayorship." By mid-May 2008, his paranoia and symptoms increased; he continually refused to take his medications because "someone might put poison in them." He had "mildly loose speech (worse when not answering structured questions)."
At this point, the decision was made to transfer petitioner to EOP. Upon his entry in that program, it was noted that petitioner had been "pacing, yelling, challenging his cell mate to fight, standing over him at night while staring and gritting his teeth. He also had a sharpened toothbrush." He "thought people are plotting against him," he experienced "thought broadcasting," his "[t]houghts were disorganized, often speaking in word salad, using words together in nonsensical sentences, mostly with paranoid themes." By late-2008, he was observed talking to a wall. By then, his Treatment Team decided to continue petitioner in the EOP level of care due to his "continued disorganization, intermittent paranoia, delusions, and difficulty programming."
For these reasons, the Court finds that petitioner has not demonstrated that his mental illness during the running of the statute of limitations prevented him from understanding the need to timely file a federal petition or from taking steps to effectuate this filing. ////
IV. Conclusion
Accordingly, IT IS HEREBY RECOMMENDED that respondent's motion to dismiss (ECF No. 22) be granted.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: June 24, 2020
/s/_________
DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE /DLB7;
DB/Inbox/Substantive/hayd1004.mtd sol