United States District Court, E.D. Kentucky, Central Division, Lexington
OPINION AND ORDER
K. CALDWELL UNITED STATES DISTRICT JUDGE.
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.
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
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.)
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.
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
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
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.
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
(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
(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)).
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
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.)
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.
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.)
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.
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,
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.
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.)
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)).
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.)
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 ...