The opinion of the court was delivered by: M. James Lorenz United States District Court 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 SEPTEMBER 1, 2010; AND
(4) DENYING PETITIONER'S REQUEST FOR AN ORDER PROHIBITING RESPONDENT FROM FILING A RESPONSIVE PLEADING
On January 15, 2010, Petitioner filed a Motion for Equitable Tolling of the Statute of Limitations, a Request for an Order Granting Permission to File a First Amended Petition, and a Request for an Order Prohibiting Respondent from Filing a Responsive Pleading until either September 23, 2010 or the date of the filing of a First Amended Petition, whichever occurs first. 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 February 18, 2010 to September 23, 2010. Respondent has filed an Opposition, and Petitioner has filed a Reply. The Court heard from the parties at oral argument held on February 12, 2010. 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 September 1, 2010, and DENIES Petitioner's Request for an Order Prohibiting Respondent from Filing a Responsive Pleading to the Protective Petition.
Petitioner Jaime Hoyos and co-defendant Emilio Alvarado were charged with two counts of first-degree murder and one count of attempted murder in the deaths of Daniel and Mary Magoon and the wounding of their 3 year old son J. They were also charged with conspiracy to commit robbery, first degree robbery, burglary, grand theft of a firearm, and transporting more than 28.5 grams of marijuana. Petitioner and Alvarado were tried together.
After a guilt phase trial, Petitioner and Alvarado were convicted on two counts of first-degree murder (California Penal Code § 187) and acquitted of attempted murder but convicted of the lesser included offense of assault with a firearm (Cal. Penal Code §§ 664, 187, 245 (a)(2)). Petitioner and Alvarado were also convicted of conspiracy to commit robbery (Cal. Penal Code §§ 211, 182.1), first degree robbery (Cal. Penal Code § 211), burglary (Cal. Penal Code § 459), grand theft of a firearm (Cal. Penal Code §487.3), and transporting more than 28.5 grams of marijuana (California Health and Safety Code § 11360(a)).
The jury found that Petitioner and Alvarado used a firearm in the commission of the murder (Cal. Penal Code § 12022.5). The jury also found true the special circumstance allegations that the murder was committed during the course of a robbery and burglary (Cal. Penal Code § 190.2(a)(17), and multiple murder (Cal. Penal Code § 190.2(a)(3)). Before the penalty phase, the trial court denied Petitioner's motion for a new trial, but granted Alvarado's. Alvarado later pled guilty and was sentenced to life without the possibility of parole.
After the penalty phase, the jury returned a sentence of life without the possibility of parole in the murder of Daniel Magoon, and a verdict of death in the murder of Mary Magoon. On July 11, 1994, the trial court denied Petitioner's motions for a new trial and for modification of the verdict, 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 October 17, 2003, raising sixteen (16) claims for relief. Petitioner also filed a reply brief on March 16, 2006. The California Supreme Court affirmed Petitioner's conviction and sentence in a decision issued on July 23, 2007. People v. Hoyos, 41 Cal. 4th 872 (2007). On February 19, 2008, the Supreme Court of the United States denied his petition for a writ of certiorari.
On September 11, 2006, while his direct appeal was pending, Petitioner filed a habeas petition with the California Supreme Court, raising eighteen (18) claims for relief. Petitioner also filed a reply brief on July 11, 2008. The petition ...