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Stiltner v. Hart

United States District Court, E.D. Kentucky, Central Division, Lexington

October 21, 2019

ROY STILTNER, Plaintiff
v.
DeEDRA HART, Warden Defendant

          OPINION AND ORDER

          KAREN K. CALDWELL UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the petition for a writ of habeas corpus (DE 17) filed by plaintiff Roy Stiltner pursuant to 28 U.S.C. § 2254. The magistrate judge has reviewed the petition and recommends (DE 183) that the Court deny it. He further recommends that the Court issue a certificate of appealability because of the difficulty and complexity of the case. Stiltner has filed lengthy objections. The defendant warden has filed a short objection, which argues only that the Court should not issue a certificate of appealability.

         I. Background

         In 1986, petitioner Stiltner pleaded guilty to murder in state court. He is currently serving a life sentence on that charge. (DE 17, Petition.) There is no dispute that he has an intellectual disability, which includes the inability to read or write.

         He never directly appealed from the judgment sentencing him to life in prison. (DE 17, Petition at 3.) In 2004, however, with the help of a fellow prisoner, Stiltner filed a motion to vacate his sentence in Kentucky state court under Rule 11.42 of the Kentucky Rules of Criminal Procedure, asserting that his trial counsel - Gene Lewter - was ineffective for failing to “raise the mental retardation defense.” (DE 17, Petition at 3.) Later, the trial court appointed the Department of Public Advocacy (DPA) to represent Stiltner on his petition. (DE 10-4, App. at 1.) The DPA filed a supplement to the petition. Nevertheless, the state trial court ultimately dismissed the motion, finding that the statute of limitations should not be tolled and that even if it were, there was nothing in the record to indicate that Lewter was ineffective. (DE 10-4 App. at 15.)

         Stiltner appealed to the Kentucky Court of Appeals, which affirmed the trial court's decision. Stiltner v. Com., No. 2007-CA-002048-MR, 2009 WL 102975, at *1 (Ky. Ct. App. Jan. 16, 2009). Stiltner did not appeal that decision to the Kentucky Supreme Court, but he did file another motion before the state trial court. This time he moved under Rule 60.02 of the Kentucky Rules of Civil Procedure for relief from the court's judgment, in part arguing that his trial counsel was ineffective for permitting him to plead guilty without first requesting a competency evaluation. (DE 10-6, App. at 8, 10.) The trial court denied that motion also. (DE 10-6, App. at 25.) Stiltner appealed. The Kentucky Court of Appeals affirmed the order, Stiltner v. Com., No. 2013-CA-000731-MR, 2014 WL 811836, at *1 (Ky. Ct. App. Feb. 28, 2014), and Stiltner again did not seek review by the state Supreme Court.

         He initially filed a petition for habeas corpus relief from this Court in 2013. (DE 1, Petition.) In the petition, he asserted two grounds for vacating his conviction. First, he asserted, as he did before the trial court, that his trial counsel was ineffective for advising him to plead guilty to the murder charge “while he remained ‘mentally retarded.'” Stiltner also asserted a new ground for vacating his conviction, one that he did not raise in state court. He asserted that the trial court erred in failing to advise him of the right to appeal if he went to trial and was convicted.

         The first issue before this Court was whether Stiltner's petition was timely filed. Ten years after Stiltner was convicted, Congress enacted the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996). It became effective April 24, 1996. It generally requires that § 2254 petitions be filed within one year of the date that the petitioner's judgment becomes final. 28 U.S.C. § 2244(d)(1)(A). State prisoners like Stiltner, whose conviction was finalized before AEDPA became effective, were required to file any habeas petition within one year after AEDPA's effective date. Cook v. Stegall, 295 F.3d 517, 519 (6th Cir. 2002). Thus, Stiltner's deadline to file a § 2254 petition was April 24, 1997. Again, he filed this petition in 2013.

         This case was originally assigned to Judge Amul Thapar, who appointed counsel to represent Stiltner on this habeas petition. Judge Thapar referred the matter to the magistrate judge, who conducted an evidentiary hearing on whether the one-year limitations period should be equitably tolled for Stiltner because of his intellectual disabilities.

         To be eligible for equitable tolling due to mental incompetence, a habeas petitioner must establish two things.

(1) First, a petitioner must show his mental impairment was an “extraordinary circumstance” beyond his control, by demonstrating the impairment was so severe that either
(a) petitioner was unable rationally or factually to personally understand the need to timely file, or
(b) petitioner's mental state rendered him unable personally to prepare a habeas petition and effectuate its filing.
(2) Second, the petitioner must show diligence in pursuing the claims to the extent he could understand them, but that the mental impairment made it impossible to meet the filing deadline under the totality of the circumstances, including reasonably available access to assistance.

Stiltner v. Hart, 657 Fed.Appx. 513, 521 (6th Cir. 2016) (quoting Bills v. Clark, 628 F.3d 1092, 1099-1100 (9th Cir. 2010)).

         After the hearing, the magistrate judge determined that Stiltner had established the first requirement: this his mental impairment was an “extraordinary circumstance” beyond his control. (DE 91, Recommendation.) The magistrate judge found that the evidence presented at the hearing indicated that Stiltner's mental impairment was so severe he could not understand the need to timely file a habeas petition and he was also unable personally to prepare a habeas petition and file it. The magistrate judge determined that Stiltner's mental impairment and his “illiteracy, limited vocabulary, and memory problems” made it impossible for Stiltner file the habeas petition on time on his own. (DE 91, Recommendation at 16-17.)

         Nevertheless, the magistrate judge recommended that Stiltner' petition be denied because he had not diligently pursued his claims even though he had legal assistance and court-appointed counsel from the DPA during the one-year limitations period. (DE 91, Recommendation at 21.)

         Ultimately, Judge Thapar accepted the magistrate judge's recommendation and denied Stiltner's petition (DE 95, 96). Stiltner appealed Judge Thapar's decision, and the Sixth Circuit Court of Appeals reversed and remanded the case back to this Court. Stiltner v. Hart, 657 Fed.Appx. 513 (6th Cir. 2016). The Sixth Circuit agreed with Judge Thapar's determination that the evidence showed that Stiltner is mentally incompetent for purposes of equitable tolling. But the Sixth Circuit found that Stiltner did in fact diligently pursue his claims to the extent he could understand them. Id. at 525. Thus, the court determined, the limitations period should be equitably tolled. Id. at 525-26.

         Judge Thapar later was confirmed as a judge for the Sixth Circuit Court of Appeals, and the case was reassigned to the undersigned. (DE 113, General Order.)

         In briefing on the habeas petition after remand, Stiltner's counsel clarified that Stiltner really only asserted one claim for habeas relief because the second claim (the failure to advise Stiltner of his right to appeal) was encompassed by the first claim (that his trial counsel was ineffective for advising him to enter a plea without an evaluation of Stiltner's mental status). (DE 112 at 4.) Counsel clarified that Stiltner's sole claim is that his trial counsel was ineffective for advising him to plead guilty without first evaluating whether Stiltner was mentally competent to knowingly and voluntarily make such a plea. The court will refer to this ineffective-assistance-of-counsel claim as Stiltner's IAC claim.

         The magistrate judge determined that Stiltner had “procedurally defaulted” his IAC claim, meaning that the state court had determined the claim must be dismissed on procedural grounds and state law would no longer permit Stiltner to raise the claim. (DE 115, Order.) See Williams v. Mitchell, 792 F.3d 606, 613 (6th Cir. 2015). As the magistrate judge noted, a claim that has been procedurally defaulted in the state courts will be reviewed on the merits on habeas review if the prisoner shows “cause” and “prejudice” for failing to properly assert the claim in state court. Id. Accordingly, the magistrate judge conducted another evidentiary hearing, this one aimed at determining whether Stiltner had established “cause” and “prejudice” that would excuse his failure to properly assert the IAC claim in state court. (DE 115, Order.)

         The magistrate judge ordered that the hearing would also cover the merits of the IAC claim. For that claim, Stiltner must show that his counsel was deficient for failing to request a mental competency evaluation and that Stiltner was prejudiced by that failure. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish prejudice, he must prove “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. at 687. To prove prejudice, Stiltner must prove that, “there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceedings would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

         As the magistrate judge determined, for Stiltner, this means that he must prove that he had a reasonable probability of success on a claim that he was incompetent to stand trial in 1986. (DE 115, Order at 12.)

         After the hearing, the magistrate judge issued a recommendation. (DE 183, Recommendation.) As to whether Stiltner had established “cause” for failing to properly assert his IAC claim in state court, the magistrate judge noted that cause sufficient to excuse default “ordinarily requires a showing of some external impediment preventing counsel from constructing or raising the claim.” Murray v. Carrier, 477 U.S. 478 (1986). “A factor is external to the defense if it ‘cannot fairly be attributed to' the prisoner.” Davila v. Davis, 137 S.Ct. 2058, 2065 (2017) (quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991)).

         The magistrate judge noted that the majority of federal courts of appeals that have addressed the issue have determined that conditions such as “mental illness, below-average intelligence, [and] mental retardation” do not constitute cause for failing to properly assert a claim in state court. (DE 183, Recommendation at 9.) This is because these conditions are not deemed to be “external” to the habeas petitioner. (DE 183, Recommendation at 10.)

         The Sixth Circuit has not addressed this precise issue. In accordance with the majority rule, however, the magistrate judge determined that “an intellectual disability cannot provide cause to excuse procedural default because it is not an ...


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