ORDER AFFIRMING RECOMMENDED DECISION
Even if mental incapacity could equitably toll the one yearstatute of limitations for the filing of a § 2254 petition,Petitioner, Harold Rowe failed to prove his mental incapacityjustifies the application of the doctrine of equitable tolling.Therefore, this Court affirms Magistrate Judge Kravchuk'sRecommended Decision and dismisses the petitioner's § 2254petition on the ground that it is untimely.
I. Statement of Facts and Procedural History
Convicted of murder on April 15, 1983, Harold Rowe spent nearlytwenty-one years in Maine State Prison before filing this § 2254petition on March 30, 2004.1 His timing was in one aspectfortuitous. On April 20, 2004, Magistrate Judge Kravchukrecommended that this Court dismiss the petition as untimely,relying on the one year statute of limitations set forth in §2244(d)(1)(A).2 (Docket # 4). In her RecommendedDecision, Judge Kravchuk did not reach the question of whetherthe statute of limitations should be tolled due to Mr. Rowe'smental incapacity. As luck would have it, however, on May 4,2004, the First Circuit decided Neverson v. Farquharson, holding for the first time that the doctrine ofequitable tolling may apply under § 2244(d)(1) in appropriatecases. 366 F.3d 32 (1st Cir. 2004). In his April 26, 2004Objection to the Recommended Decision (Docket # 5),3 Mr.Rowe claimed the statute of limitations should be tolled becausehe has been mentally incapacitated, a claim that under Neversoncould arguably support the application of the doctrine ofequitable tolling.4
A. The Doctrine of Equitable Estoppel
The doctrine of equitable tolling provides that in exceptionalcircumstances, a statute of limitations may be extended forequitable reasons not acknowledged in the statute creating thelimitations period. Neverson, 366 F.3d at 40 (quoting David v.Hall, 318 F.3d 343, 345-46 (1st Cir. 2003)). In habeaspetitions, Neverson cautioned equitable tolling should beinvoked only sparingly and, under § 2244, only "as a narrowsafety valve reserved from instances of clear injustice." Id.at 42. (citing Brackett v. United States, 270 F.3d 60, 67 (1stCir. 2001)). The Court explained: [A]t a minimum, equitable tolling is appropriate only when circumstances beyond the petitioner's control have prevented him from filing on time. In the habeas context particularly, care is required to avoid upsetting the strong concern for finality embodied in § 2254.Id. (citations omitted). Mental incompetence is not a per se reason to toll thestatute of limitations, Brown v. McKee, 232 F. Supp.2d 761, 767(E.D. Mich. 2002); see also, Nunnally v. MacCausland,996 F.2d 1, 4 (1st Cir. 1993) ("We have declined to adopt anabsolute rule of tolling on insanity grounds" (internalquotation omitted)), and the First Circuit has not yet addressedwhether a habeas petitioner's mental incompetence during theperiod for filing can constitute "circumstances beyond thepetitioner's control" that could call into play the applicationof equitable tolling. Cf. Nunnally, 996 F.2d at 4 (mentalillness may be appropriate basis for tolling 30-day filing periodset forth in Civil Service Reform Act) and Lopez v. Citibank,N.A., 808 F.2d 905 (1st Cir. 1987) (addressing whether mentalillness can toll statute of limitations in employmentdiscrimination suit). At least four circuits have addressed thisissue in the context of the AEDPA. Rios v. Mazzuca, 78 Fed.Appx. 742, 743 (2nd Cir. 2003) (unpublished opinion) (assuming,but not deciding, mental illness could qualify as "rare andexceptional" circumstance justifying equitable tolling); Nowakv. Yukins, 46 Fed. Appx. 257, 259 (6th Cir. 2002) (unpublishedopinion) ("The mental incapacity of the petitioner can warrantthe equitable tolling of the statute of limitations"); Nara v.Frank, 264 F.3d 310, 320 (3rd Cir. 2001); Calderson v. UnitedStates District Court, 163 F.3d 530, 541 (9th Cir. 1998),abrogated on other grounds, Woodford v. Garceau,538 U.S. 202 (2003). More generally, the courts which have recognizeda statute of limitations exception for mental incapacity havelimited the application of the doctrine of equitable estoppel toexceptional circumstances. Smith v. Saffle, 28 Fed. Appx. 759,760 (10th Cir. 2001) (unpublished opinion); Biester v. MidwestHealth Services, Inc., 77 F.3d 1264, 1268 (10th Cir. 1996);Lopez at 907 (concluding representation by counsel duringperiod of alleged mental illness would make it unlikely statuteof limitations should be tolled); Moody v. Bayliner MarineCorp., 664 F. Supp. 232, 235 (E.D.N.C. 1987) (recognizing mentalincapacity may toll Title VII limitations period "in rare circumstances");Bassett v. Sterling Drug, Inc., 578 F. Supp. 1244, 1248 (D.C.Ohio 1984) ("[O]bjective standard of adjudication orinstitutionalization" required). The petitioner has the burden ofshowing his mental health problems rendered him unable to file ahabeas petition during the one-year limitations period. Brown,232 F. Supp.2d at 767. Further, the incapacity must prevent "thesufferer from managing his affairs and thus from understandinghis legal rights and acting upon them." Id. (quoting Miller v.Runyon, 77 F.3d 189, 191 (7th Cir. 1996)).5
B. The Petitioner
There is scant evidence to establish the Petitioner wasmentally incapacitated from understanding and acting to protecthis legal rights from April 24, 1996 to April 24, 1997. The 1995Adjudication of Incapacity sheds some oblique light on thisnarrow issue. In keeping with Maine law, the Adjudication ofIncapacity was not a general guardianship; it was a limitedpublic guardianship expressly circumscribed to making "medicaldecisions for the incapacitated person, including theauthorization to administer involuntary medications," (seePetition (Docket #1)). See Guardianship of Boyle,674 A.2d 912 (Me. 1996); Guardianship of Collier, 653 A.2d 898 (Me.1995). To "help the incapacitated person to achieve thebehavioral goals of stability and self reliance" (See Petition(Docket # 1)), the probate court ordered the public guardian toreview Mr. Rowe's case annually and file a report of each reviewwith the probate court. The Adjudication of Incapacity cites 18-AM.R.S.A. § 5-304 as its authority. Under § 5-304, the probatecourt is required to "encourage the development of maximum selfreliance and independence of the incapacitated person and to makeappointive and other orders only to the extent necessitated by the incapacitated person's actual adaptiveand mental limitations. . . ." Upon making the finding ofincapacity under § 5-304, the probate court has the statutoryauthority to order a wide range of guardianship powers andduties. 18-A M.R.S.A. § 5-312. In this instance, however, theprobate court limited the authority of the public guardian overMr. Rowe to matters of medical consent; there is no indicationthe probate court granted the guardian the right to manage or actfor Mr. Rowe in his non-medical affairs. The negative implicationof the Adjudication of Incapacity is that Mr. Rowe was able tomanage his own financial and personal affairs and the probatecourt needed only assure his continued use of recommendedmedication. Furthermore, it is at least as likely as not theadministration of medication achieved the purpose envisioned bythe Adjudication of Incapacity and Mr. Rowe resumed the state of"self reliance," (See Petition (Docket # 1)).
Other than the Adjudication of Incapacity itself, Mr. Rowe hasfailed to provide the Court with any information from which itcan conclude he was mentally incapable of filing a habeaspetition from April 24, 1996 to April 24, 1997. There is no theevidence of what the probate court considered in 1995, Mr. Rowehas not submitted medical or psychological records of hisdiagnosis or treatment, and the annual reports of the limitedpublic guardian to the probate court are not before the Court. Insum, in simply attaching the Adjudication of Incapacity, Mr. Rowehas failed to sustain his burden of proof to demonstrate eitherhis mental incapacity or its impact during the period the statuteof limitations was running.
Finally, to the extent this Court can glean the state of hismental capacity, the record reflects Mr. Rowe has been capable ofexercising his legal rights. In this Petition, Mr. Rowe explainedhis significant involvement in his own representation, fromdisapproving of his original attorney's decision to take a directappeal of his 1983 conviction to incorporating an unnamed judge's recommendation that he wait until his sentencewas lower before he sought review by a higher state court. Whilethe Petitioner suggests his incapacity prevented him from"functioning mentally," (see Supplemental Objection at 5(Docket # 6)), he also states he is now taking medication thatenables him to do so.6
The numerous legal actions he has initiated are alsoinstructive on this issue. In his Objection, Mr. Rowe claims hehas been incapacitated since 1983. (Objection at 1 (Docket # 5)).If so, this incapacity did not prevent him from filing amultitude of actions with this Court. In 1988 alone, Mr. Rowefiled 14 pro se actions: Rowe v. O'Farrell, Civil No.88-40; Rowe v. Dep't of Corrections, Civil No. 88-41; Rowe v.Dep't of Corrections, Civil No. 88-42; Rowe, et al. v.Perkins, Civil No. 88-61; Rowe v. Dep't of Correction, CivilNo. 88-62; Rowe v. Beneman, Civil No. 88-63; Rowe v. Rowe,Civil No. 88-73; Rowe v. Dep't of Correction, Civil No. 88-78;Rowe v. Dep't of Corrections, Civil No. 88-79; Rowe v. Dep'tof Corrections, Civil No. 88-87; Rowe v. Dep't of Corrections,Civil No. 88-90; Rowe v. Dep't of Corrections, Civil No.88-103; Rowe v. Struck, Civil No. 88-106; and Rowe v. Maine,Civil No. 88-204. Since the Adjudication of Incapacity in 1995,Mr. Rowe has filed at least three additional pro se actionsin federal court: Rowe v. Trophoni, Civil No. 01-134-B-S; Rowev. Uffelman, Civil No. 04-72-B-W; and Rowe v. Maine, thishabeas petition.7
The exceptional circumstances that would justify equitabletolling on the basis of mental incapacity are not present whenthe party seeking the tolling has been able to pursue his legalclaims during the period of alleged incapacity. Smith, 28 Fed.Appx. at 760; Brown, 232 F. Supp.2d at 768; Williams v.Prince, 2002 WL 551037, *5 (E.D. Mich. March 29, 2002). The Petitioner was able to pursue numerous legal actions and hispresent habeas petition both before and after the adjudication ofincapacity. He has failed to present any probative evidence fromwhich this Court can conclude that he suffered from a mentalillness that prevented him from understanding and acting upon hislegal rights during the filing period. Accordingly, he has failedto sustain his burden to demonstrate the doctrine of equitabletolling should be applied to his § 2254 petition.
The Court has reviewed and considered the Magistrate Judge'sRecommended Decision, together with the entire record; the Courthas made a de novo determination of all matters adjudicatedby the Magistrate Judge's Recommended Decision; and, the Courtconcurs with the recommendations of the Magistrate Judge for thereasons set forth in her Recommended Decision and as further setforth herein. The Recommended Decision is AFFIRMED and thePetition is DISMISSED.
1. Mr. Rowe appealed his conviction to the Maine SupremeJudicial Court. The Law Court's opinion, setting forth the factsunderlying the conviction and its resolution of the issues onappeal, is found in State v. Rowe, 479 A.2d 1296 (Me. 1984).
2. Magistrate Judge Kravchuk concluded Mr. Rowe had untilApril 24, 1997 to file the § 2254 petition, since § 2244(d)(1)(A)provides a one year statute of limitations and the state courtdeterminations on Rowe preceded the April 24, 1996 effective dateof the Antiterrorism and Effective Death Penalty Act ("AEDPA"),Pub.L. No 104-132, 110 Stat. 1214 (April 24, 1996).
3. Mr. Rowe also filed a series of supplemental objections tothe Recommended Decision. See Docket # 6, 7, 8, 9.
4. Mr. Rowe did not clearly raise before Judge Kravchuk hisclaim that his mental incompetence should toll the statute oflimitations. In his initial filing, he attached a copy of anAdjudication of Incapacity and Appointment of Public Guardian ofIncapacitated Person from the Knox County Probate Court datedFebruary 22, 1995 ("Adjudication of Incapacity"). The copycontains some handwriting that seems to challenge the ProbateCourt's determination. Based on what was before her, JudgeKravchuk interpreted the § 2254 petition as in part a challengeto the mental incapacity determination in the probate order.Judge Kravchuk stressed she was making no determination whether a§ 2254 petition was a proper vehicle for challenging such adetermination. After receiving the Recommended Decision, Mr. Roweclarified his argument that his mental incompetence should tollthe statute of limitations. Generally, the law does not allowthis Court to consider issues not presented to the MagistrateJudge; however, in view of the ambiguity of the petition, therequirement that pro se pleadings be interpreted liberally,and the timing of the Neverson decision, this Court will reachthe equitable tolling issue.
5. In Brown, the petitioner claimed the limitations periodshould be equitably tolled because, in part, he was under theinfluence of psychotropic medication. Id. The court determinedhe was not entitled to equitable tolling because he failed toidentify the mental illness for which he was being treated, hisreceipt of psychotropic medication weighed more in favor of hisbeing able to function than not, and he filed severalpost-conviction motions and the § 2254 petition pro se whiletaking the medication. Id. at 768.
6. Then again, he also refers to his medication as hypnoticdrugs. (See Objection at 1 (Docket # 5)).
7. Mr. Rowe also claims to have initiated a suit against thestate for social security benefits, which he purportedly settledover the telephone with a judge; settled a suit against the statefor denial of access to a legal library for $14,000.00; andreceived a favorable decision in a civil suit "in Bangor" that hewill pick up when he leaves prison, (see Supplemental Objectionat 8 (Docket # 6)). The Court has been unable to verify any ofthese assertions.