Steven Forbess v. Steve Franke , 749 F.3d 837 ( 2014 )


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  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    STEVEN CHARLES FORBESS,                  No. 12-35843
    Petitioner-Appellant,
    D.C. No.
    v.                      3:08-cv-01261-
    AC
    STEVE FRANKE, Superintendent,
    Two Rivers Correctional Institution,
    Respondent-Appellee.          OPINION
    Appeal from the United States District Court
    for the District of Oregon
    Malcolm F. Marsh, Senior District Judge, Presiding
    Argued and Submitted
    March 4, 2014—Portland, Oregon
    Filed April 18, 2014
    Before: Alfred T. Goodwin, Stephen S. Trott, and
    William A. Fletcher, Circuit Judges.
    Opinion by Judge Trott
    2                      FORBESS V. FRANKE
    SUMMARY*
    Habeas Corpus
    The panel reversed the district court’s denial of an
    untimely 28 U.S.C. § 2254 habeas corpus petition and
    remanded for further proceedings, concluding that petitioner
    suffered from delusions so severe that he was unable to
    understand the need to timely file his petition, and that the
    unique nature of those delusions made it impossible to do so.
    COUNSEL
    Todd H. Grover (argued), Ward Grover, LLP, Bend, Oregon,
    for Petitioner-Appellant.
    Carolyn Alexander (argued), Senior Assistant Attorney
    General; Ellen F. Rosenblum, Attorney General; Anna M.
    Joyce, Solicitor General, Salem, Oregon, for Respondent-
    Appellee.
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    FORBESS V. FRANKE                         3
    OPINION
    TROTT, Circuit Judge:
    Today we decide whether the mental illness suffered by
    petitioner Steven Charles Forbess entitles him to equitable
    tolling of the statute of limitation for a writ of habeas corpus.
    We conclude that it does. During the relevant period, Forbess
    suffered from delusions so severe that he was unable to
    understand the need to timely file his petition, and the unique
    nature of those delusions made it impossible for him to timely
    file. We reverse and remand so that the district court may
    consider the merits of Forbess’s petition.
    I
    In 1999, an Oregon state court jury convicted Forbess of
    the attempted murder, assault, kidnaping, and coercion of his
    former wife, Joanne. Forbess’s direct appeal of that
    conviction ended when the Oregon Court of Appeals issued
    its final judgment on November 28, 2001. That judgment
    triggered the running of the one-year statute of limitation on
    Forbess’s federal habeas petition, though Forbess did not
    learn of the final judgment until April 2002.
    On July 14, 2003, Forbess filed a state habeas petition
    challenging his conviction, which the state court rejected as
    improperly filed. It was not until Forbess met with an inmate
    legal assistant sometime before July 14, 2003, to help him
    with that state habeas petition that Forbess learned of the one-
    year limitation period for his federal habeas petition. Forbess
    also concedes on appeal that he is not entitled to equitable
    tolling after July 14, 2003, because he rationally understood
    the need to file after that date.
    4                    FORBESS V. FRANKE
    Forbess filed a petition for state post-conviction relief on
    October 30, 2003, which tolled the federal habeas statute of
    limitation until Forbess filed his 28 U.S.C. § 2254 federal
    habeas petition on October 22, 2008. Excluding the time that
    was statutorily tolled by Forbess’s state post-conviction
    challenge, Forbess filed his federal habeas petition just over
    twenty-three months after the one-year statute of limitation
    had begun to run. The district court thus ordered Forbess to
    show cause why the court should not summarily reject his
    federal habeas petition as untimely.
    In response, Forbess asked the district court to equitably
    toll the limitation period because of his mental illness.
    Forbess claimed that, during the relevant period, he believed
    he was working with the FBI to help apprehend Joanne and
    her family, who he believed were part of a drug cartel.
    Because Forbess had witnessed Joanne’s family receive a
    large shipment of drugs, the cartel supposedly wanted him
    dead. Forbess thought that the FBI had staged his conviction
    in an effort to bait Joanne out of hiding. He believed that the
    FBI asked him to stay in prison until Joanne and her family
    were arrested, at which time the FBI would secure his release.
    Forbess therefore believed he had no need to file a federal
    habeas petition.
    The district court denied Forbess’s request for equitable
    tolling. Forbess v. Mills, No. 3:08–cv–01261–AC, 
    2012 WL 4324912
    (D. Or. Aug. 17, 2012), findings and
    recommendation adopted, 
    2012 WL 4328359
    (D. Or. Sept.
    17, 2012). Although the district court found that Forbess’s
    mental illness kept him from understanding the need to timely
    file his federal habeas petition, it also found that Forbess did
    not prove that his mental illness was the but-for cause of his
    FORBESS V. FRANKE                        5
    delay. The district court rejected the petition as untimely, and
    Forbess appealed.
    II
    The dismissal of a petition for writ of habeas
    corpus as time-barred is reviewed de novo. If
    the facts underlying a claim for equitable
    tolling are undisputed, the question of whether
    the statute of limitations should be equitably
    tolled is also reviewed de novo. Otherwise,
    findings of fact made by the district court are
    to be reviewed for clear error.
    Spitsyn v. Moore, 
    345 F.3d 796
    , 799 (9th Cir. 2003).
    III
    The Antiterrorism and Effective Death Penalty Act of
    1996 (“AEDPA”) gives a state inmate one year from the
    conclusion of his direct appeal to file a petition for federal
    habeas corpus. 28 U.S.C. § 2244(d)(1)(A). AEDPA tolls the
    statute of limitation while a “properly filed application” for
    state post-conviction relief is pending.          28 U.S.C.
    § 2244(d)(2). Further, courts may equitably toll the statute of
    limitation if “extraordinary circumstances” prevented an
    otherwise diligent petitioner from filing on time. Holland v.
    Florida, 
    560 U.S. 631
    , 649 (2010).
    In Bills v. Clark, 
    628 F.3d 1092
    (9th Cir. 2010), we
    articulated a two-part test to determine whether a mental
    impairment amounts to an “extraordinary circumstance”
    warranting equitable tolling. The impairment must have (1)
    been “so severe that the petitioner was unable personally . . .
    6                    FORBESS V. FRANKE
    to understand the need to timely file . . . a habeas petition,”
    and (2) “made it impossible under the totality of the
    circumstances to meet the filing deadline despite petitioner’s
    diligence.” 
    Id. at 1093.
    This is not “a mechanical rule”;
    rather, equitable tolling determinations require “a flexibl[e],
    case-by-case approach.” 
    Id. at 1096
    (quoting 
    Holland, 560 U.S. at 650
    ) (internal quotation marks omitted).
    A. The Relevant Period
    We must determine whether Forbess is entitled to
    equitable tolling between November 29, 2001, and July 14,
    2003. See 28 U.S.C. § 2244(d)(1)(A); Patterson v. Stewart,
    
    251 F.3d 1243
    , 1246 (9th Cir. 2001). Because that period
    lasted approximately nineteen and a half months, and Forbess
    concedes that the statute of limitation ran for approximately
    three and a half months between July 14, 2003, and October
    29, 2003, Forbess’s petition is timely only if he proves he is
    entitled to equitable tolling for just over eleven months during
    any part of the relevant period.
    B. Prong One: Severity
    To satisfy the first Bills prong, Forbess needed to show
    that his mental illness was “so severe that [he was] unable . . .
    to understand the need to timely file.” 
    Bills, 628 F.3d at 1093
    . The magistrate judge made the following findings of
    fact to determine that Forbess met his burden of proof on this
    prong:
    Petitioner believed he was working
    undercover for the FBI, and his trial was a
    “sham” orchestrated to lure his ex-wife out of
    hiding and arrest her for being part of an
    FORBESS V. FRANKE                        7
    extensive drug distribution operation.
    Petitioner’s claim that his delusions persisted
    from the time of his trial to the expiration of
    the limitations period is supported by the
    psychological evaluations of Dr. Fickle, Dr.
    McDonald, and Dr. Melnick, and by the
    mental health records. During the relevant
    time period, Petitioner genuinely believed the
    FBI would release him once they arrested his
    ex-wife. As such, he was incapable of
    rationally understanding the necessity of filing
    a timely habeas petition.
    Forbess, 
    2012 WL 4324912
    , at *5 (emphasis added).
    The magistrate judge explicitly found that Forbess’s
    delusions persisted throughout the relevant period, and that
    conclusion is well supported by the record. Indeed, various
    doctors throughout the relevant period opined that Forbess
    suffered from severe delusions and documented Forbess’s
    belief that he was working for the FBI.
    The Superintendent’s argument that Forbess was free of
    delusions from May 2002 through the remainder of the
    relevant period is not convincing. Although the mental health
    records show some variance in Forbess’s condition, his
    reluctance to discuss his delusions with his doctors explains
    the gaps or variations in the mental health records. See
    Forbess, 
    2012 WL 4324912
    , at *3 (Dr. Melnick noted that
    Forbess “often refuses to tell psychiatrists about his
    delusions, but that in interviews with non-psychiatrists, he has
    admitted his belief that he is in the witness protection
    program and that the FBI would arrange for his release”).
    And Forbess’s extensive history of severe mental illness, also
    8                   FORBESS V. FRANKE
    well documented in the record, bolsters the district court’s
    finding.
    We therefore accept as controlling the district court’s
    finding that Forbess’s delusions were so severe that he could
    not rationally understand the need to timely file his federal
    habeas petition, and that those delusions persisted throughout
    the relevant period.
    C. Prong Two: “Impossibility”
    Under the second equitable tolling prong, Forbess needed
    to prove that his mental illness “made it impossible under the
    totality of the circumstances to meet the filing deadline
    despite [his] diligence.” 
    Bills, 628 F.3d at 1093
    . Bills,
    however, does not require a literal impossibility. 
    Id. at 1100
    (stating that the second prong requires a showing that the
    mental impairment was “a but-for cause of any delay”); see
    also Sossa v. Diaz, 
    729 F.3d 1225
    , 1236 (9th Cir. 2013)
    (explaining that Bills’s “impossibility requirement should not
    be strictly imposed because imposing extraordinarily high
    evidentiary standards on pro se prisoner litigants . . . runs
    against the grain of [Ninth Circuit] precedent”) (internal
    quotation marks omitted); Ford v. Gonzalez, 
    683 F.3d 1230
    ,
    1237 (9th Cir. 2012) (quoting 
    Bills, 628 F.3d at 1097
    , for the
    general rule that “equitable tolling is available when the
    prisoner can show extraordinary circumstances were the
    cause of an untimely filing”); Stancle v. Clay, 
    692 F.3d 948
    ,
    959 (9th Cir. 2012), cert. denied, 
    133 S. Ct. 1465
    (2013)
    (interpreting Bills to ask whether “the mental impairment
    cause[d] an untimely filing”); Roberts v. Marshall, 
    627 F.3d 768
    , 771 n.5, 772 (9th Cir. 2010) (explaining that if “‘a
    habeas petitioner’s mental incompetence in fact caused him
    to fail to meet the AEDPA filing deadline, his delay was
    FORBESS V. FRANKE                        9
    caused by an extraordinary circumstance’”) (quoting Laws v.
    Lamarque, 
    351 F.3d 919
    , 923 (9th Cir. 2003)).
    The district court found that Forbess’s mental illness was
    not the but-for cause of his delay and denied Forbess’s
    petition as untimely. The court reasoned that it was “equally
    probable or more probable that [Forbess’s] late filing was
    caused by (1) failing to receive timely notice of the
    termination of his direct appeal; (2) not being advised by his
    appellate counsel of the one-year federal limitation period;
    and (3) then not understanding the state habeas/[post-
    conviction relief] system,” and thus Forbess had not met his
    burden of proof. Forbess, 
    2012 WL 4324912
    , at *6.
    We respectfully disagree. With all respect, the district
    court applied an overly-rigid interpretation of the but-for test
    set out in Bills, and did not consider the totality of the
    circumstances before it—especially the peculiar nature of
    Forbess’s mental illness. If, as the district court found,
    Forbess could not rationally understand the need to pursue
    federal post-conviction relief, and if his reluctance to do so
    was due to his delusional belief that the FBI wanted him to
    lay low as bait for the cartel, then before the delusion lifted
    nothing anyone might have said to him about the need to
    timely file would have altered his behavior. See Forbess,
    
    2012 WL 4324912
    , at *5. It follows that Forbess’s confusion
    about the status of his case and the intricacies of his rights
    after his direct appeal ended cannot be dispositive. Even if
    Forbess had understood his legal rights completely, he would
    not have filed.
    In short, Forbess’s unique mental illness made it
    impossible for Forbess to timely file his federal habeas
    petition, see 
    Bills, 628 F.3d at 1093
    , and in fact caused him to
    10                  FORBESS V. FRANKE
    fail to meet the filing deadline, see 
    Roberts, 627 F.3d at 772
    .
    The district court erred by concluding otherwise.
    IV
    Given the unique nature of Forbess’s mental illness and
    the flexible, totality-of-the-circumstances approach that Bills
    requires, we conclude that Forbess has satisfied both Bills
    prongs. Accordingly, Forbess is entitled to equitable tolling
    of AEDPA’s one-year statute of limitation and his petition for
    a writ of habeas corpus is timely. We reverse the judgment
    of the district court and remand for further proceedings.
    REVERSED and REMANDED.
    

Document Info

Docket Number: 12-35843

Citation Numbers: 749 F.3d 837

Judges: Alfred, Fletcher, Goodwin, Stephen, Trott, William

Filed Date: 4/18/2014

Precedential Status: Precedential

Modified Date: 8/31/2023