Allen v. CalderonAllen v. Calderon
COWEN, Circuit Judge:
Ernest Lee Allen appeals the district court‘s order dismissing his petition for Writ of Habeas Corpus pursuant to
The circumstances of Allen‘s conviction have no bearing on this appeal. Proceeding pro se, Allen filed a federal habeas corpus petition claiming that his sentence constituted cruel and unusual punishment. The petition was unsigned. The district court issued an order requiring Allen to submit an amendment within thirty days, which included his signature. Two weeks later, Allen filed an amended petition which contained a photocopy, rather than an original, of his signature, and added two additional claims for ineffective assistance of counsel.
The district court sua sponte issued an order to show cause why the petition should not be dismissed for failure to exhaust the new claims. The order also reiterated the court‘s demand
Approximately one month later, Allen filed a motion for an extension of time to answer the order to show cause on the grounds that he does not have adequate access to the courts, is mentally impaired, and does not know how to respond to the order. The motion included his own sworn declaration and a sworn declaration of another inmate, Charles Johnson. Each declaration explains that Allen is mentally ill and does not understand the district court‘s orders. Allen also attached a letter from the prison psychiatrist whose care he is under while placed in the Enhanced Outpatient Program at the prison. This letter states that Allen is diagnosed with Chronic Undifferentiated Schizophrenia and is taking two psychotropic medications.
The district court extended the time for Allen to respond to the order to show cause. However, Allen did not timely respond and a Report and Recommendation was issued suggesting that the action be dismissed for failure to prosecute. Approximately two weeks later, Allen filed a motion for appointment of counsel explaining that he suffers from a “debilitating mental illness that requires a course of treatment that includes the use of various psychotropic medications. His mental condition and the side-effects associated with the prescribed medications, severely [hinder] his ability to comprehend or correctly respond to the determinations and Orders made by the Court.” (E.R., Tab 5 at 3). The district court denied this motion.
Allen filed objections to the Report and Recommendation, asserting that the court erred by failing to consider his extenuating circumstances, specifically his mental illness and limited access to the law library. Despite these objections, the district court dismissed the petition. This appeal followed.
[1] Allen asserts that the district court erred in dismissing his petition for failure to prosecute without evaluating his assertions of incompetence.2 As evidence of his incompetence, Allen submitted his own sworn declaration and that of another inmate. Each declaration explains that Allen is mentally ill and does not understand the court‘s instructions. As further support, Allen included a letter from the prison psychiatrist, dated April 8, 2002, which stated that Allen is under his care, diagnosed with Chronic Undifferentiated Schizophrenia, and is taking two psychotropic medications. Neither the Report and Recommendation nor the subsequent district court order adopting it mention the evidence of incompetence.
[2] Additionally, there is no reason other than his mental illness why Allen could not have sent an original signature and pleaded that he did exhaust his state court remedies, especially given the fact that he had exhausted all of his claims. The allegations in Allen‘s motion for an extension of time and his motion for appointment of counsel, together with the
[3] Pursuant to
[4] In a non-habeas civil action, this Court held that if an “incompetent person is unrepresented, the court should not enter a judgment which operates as a judgment on the merits without complying with
[5] The State argues that we should refrain from applying the Krain reasoning to habeas proceedings as this would create a per se rule of counsel for mentally incompetent petitioners. This argument is meritless. We do not hold that a petitioner should be appointed counsel for habeas proceedings. We merely rule that counsel should be appointed for the limited purpose of representing the petitioner at the compe
Similarly, the State‘s other reason for distinguishing Krain—that here the court dismissed for failure to prosecute whereas in Krain the court dismissed for failure to comply with the court order—merely notes a distinction without a difference. The State fails to point out, and we have not found, any reason to adopt different rules regarding competency determinations for these two types of dismissals.
[6] A party proceeding pro se in a civil lawsuit is entitled to a competency determination when substantial evidence of incompetence is presented. Although the case at bar has a slightly different procedural posture than Krain, its basic principle is applicable here: Where a party‘s incompetence in fact caused him to fail to prosecute or meet a filing deadline, the action should not be dismissed on such grounds.
[7] Here, there was sufficient evidence of incompetence at least to require the district court to make a competency determination. Although the evidence of incompetence may not have been artfully presented, the district court must construe pro se habeas filings liberally. See Maleng v. Cook, 490 U.S. 488 (1989). The State sets forth possible reasons the district court may have found there was insufficient evidence of incompetence (i.e., finding that the declarations were not credible or determining there was no nexus between Allen‘s schizophrenia and associated medications and his inability to understand instructions). However, the explanations provided are mere speculation. We cannot determine whether the district court abused its discretion based on such conjecture.
REVERSED AND REMANDED.