The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
(1) GRANTING PETITIONER'S MOTION FOR EQUITABLE TOLLING;
(2) GRANTING REQUEST FOR PERMISSION TO FILE A FIRST AMENDED PETITION;
(3) TOLLING THE DEADLINE FOR FILING THE FIRST AMENDED PETITION TO FEBRUARY 23, 2010; AND
(4) DENYING PETITIONER'S REQUEST FOR AN ORDER PROHIBITING RESPONDENT FROM FILING A RESPONSIVE PLEADING
On July 17, 2009, Petitioner filed a Motion for Equitable Tolling of the Statute of Limitations, Permission to File a First Amended Petition, and Request for an Order Prohibiting Respondent from Filing a Responsive Pleading to the Protective Petition for Writ of Habeas Corpus. In this Motion, Petitioner asks the Court to toll the statute of limitations for the period between his request for federal habeas counsel and the appointment of counsel. Therefore, Petitioner seeks to extend the deadline for filing his federal habeas petition from July 23, 2009, to June 15, 2010. Respondent has filed an Opposition, and Petitioner has filed a Reply. The Court heard from the parties at oral argument held on October 8, 2009. For the following reasons, the Court GRANTS Petitioner's Motion for Equitable Tolling and for Permission to File a First Amended Petition, TOLLS the deadline for filing the First Amended Petition to February 23, 2010, and DENIES Petitioner's Request for an Order Prohibiting Respondent from Filing a Responsive Pleading to the Protective Petition.
By an Amended Information filed on October 11, 1991, Petitioner Robert Jurado and co-defendants Denise Shigemura and Anna Humiston were charged with first-degree murder and conspiracy to commit murder in the death of Teresa Holloway. Petitioner was tried separately from his co-defendants.
Petitioner was convicted on May 23, 1994, of one count of first-degree murder (California Penal Code § 187), and one count of conspiracy to commit murder (Cal. Penal Code §§ 182, 187). The jury found that Petitioner used a deadly and dangerous weapon to commit the murder (Cal. Penal Code § 12022(b)). The jury also found true the special circumstance allegation that the murder was committed while lying in wait (Cal. Penal Code § 190.2(a)(15)). On June 14, 1994, the jury returned a sentence of death. On October 7, 1994, the trial court denied Petitioner's motions for a new trial, to set aside the special circumstance finding, and for modification of the verdicts, and sentenced him to death.
On automatic appeal (hereinafter "direct appeal") of this conviction and judgment to the California Supreme Court, Petitioner filed an opening brief on July 9, 2003, raising twenty-six (26) claims for relief. Petitioner also filed a reply brief on February 15, 2005. The California Supreme Court affirmed Petitioner's conviction and sentence in a decision issued on April 6, 2006. People v. Jurado, 38 Cal. 4th 72 (2006). On October 10, 2006, the Supreme Court of the United States denied his petition for a writ of certiorari.
On August 11, 2005, while his direct appeal was pending, Petitioner filed a habeas petition with the California Supreme Court, raising thirty-two (32) claims for relief. Petitioner also filed a reply brief on July 9, 2007. The petition was denied on July 23, 2008, without an evidentiary hearing.
On July 31, 2008, Petitioner filed motions for the appointment of counsel and for a stay of execution with this Court. On August 6, 2008, the Court granted Petitioner's motions and referred the matter to the Selection Board for the suggestion of one or more attorneys to represent Petitioner on federal habeas review. On September 12, 2008, October 28, 2008, December 1, 2008, and February 27, 2009, the Court granted extensions of the stay of execution to allow the Selection Board additional time to locate and recommend counsel for appointment.
The Selection Board sent a letter to the Court on February 3, 2009, recommending the appointment of Mr. Lathrop and Mr. Boyce. On February 25, 2009, the Court held a pre-appointment conference with prospective counsel and representatives from the Attorney General's office. At this conference, Mr. Boyce and Mr. Lathrop advised the Court that they could not accept appointment before May or June 2009, as Mr. Boyce had recently been diagnosed with cancer, and needed to undergo surgery. Mr. Boyce and Mr. Lathrop also advised the Court that they were unwilling to accept appointment without a stipulation from the Attorney General as to a timely filing date for the petition. The Attorney General declined to ...