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Harris v. Davis

United States District Court, E.D. California

April 14, 2017

RON DAVIS, Warden of the California State Prison at San Quentin, Respondent.


         Before the court is petitioner's motion to equitably toll the limitations deadline under 28 U.S.C. § 2244 for the filing of his federal habeas petition from September 21, 2017 to November 15, 2017, due to delay in matters relating to the appointment of counsel in these proceedings. A hearing on petitioner's motion was held before the undersigned on April 11, 2017. Attorneys Saor E. Stetler and Richard G. Novak appeared for petitioner, Willie Leo Harris, and Deputy Attorney General Amanda Cary appeared for respondent, Ron Davis. All counsel appeared telephonically.

         Upon consideration of the motion, respondent's opposition, petitioner's reply, and the parties' oral argument, petitioner's motion for equitable tolling of the statute of limitations will be granted for the reasons that follow.


         On October 18, 2016, petitioner commenced this federal proceeding by filing an application for stay of execution and for appointment of counsel and to proceed in forma pauperis. On October 19, 2016, the court denied without prejudice the application for stay of execution and granted the application for appointment of counsel (by referral to the Selection Board) and granted the application to proceed without payment of fees. On November 30, 2016, attorneys Stetler and Novak were appointed as co-counsel to represent petitioner.

         On January 18, 2017, the court held an initial case management and budget conference in this action. On February 2, 2017, the court issued an order following continued case management conference providing in part that: the state record shall be lodged by June 15, 2017, the petition shall be filed by September 21, 2017, and the answer shall be filed by not later than twelve (12) months after the filing date of the petition. On March 6, 2017, petitioner filed the instant motion for equitable tolling. Respondent filed opposition to the motion on March 20, 2017. Petitioner replied to the opposition on April 4, 2017.


         A. Legal Standards

         The federal Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one year statute of limitations for filing a federal habeas corpus petition running from “the date on which the judgment became final by the conclusion of direct review.” 28 U.S.C. § 2244(d)(1)(A). The limitations period is statutorily tolled during the time that “a properly-filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2).

         A litigant may seek equitable tolling of the one year limitation period. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The party asserting equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way. Holland v. Florida, 560 U.S. 631, 649 (2010); Espinoza-Matthews v. California, 432 F.3d 1021, 1026, n.5 (9th Cir. 2005) (citing Pace, 544 U.S. at 418); see also Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1288-89 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States Dist. Ct. (Kelly V), 163 F.3d 530 (9th Cir. 1998), abrogated on other grounds by Woodford v. Garceau, 538 U.S. 202 (2003) (finding the one year statute of limitations under 28 U.S.C. § 2244(d) is not jurisdictional and is subject to pre-petition equitable tolling if “extraordinary circumstances” beyond a prisoner's control make it impossible to file a petition on time). The diligence required is reasonable diligence, not “maximum feasible diligence.” Holland, 560 U.S. at 653. An “extraordinary circumstance” must be outside of petitioner's control and prevent him from filing within the one-year period. See Fail v. Hubbard, 315 F.3d 1059, 1061-62 (9th Cir. 2002); see also Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (reversing denial of equitable tolling where prison officials delayed processing of inmate's trust account paperwork and outgoing mail).

         Among the factors courts have considered relevant in deciding the question of equitable tolling, in addition to those noted above, are the complexity of the legal proceedings and whether the state would suffer prejudice from the granting of equitable tolling. See Hoyos v. Wong, Case No. 09-cv-0388 L (NLS), 2010 WL 596443, at **4, 5 (S.D. Cal. Feb. 16, 2010).

         B. Summary of Arguments

         1. Petitioner

         Petitioner argues that he has been diligent notwithstanding the fifty-five (55) day delay between his request for appointment of counsel and the court's appointment of counsel. Specifically, he argues that appointment of counsel was delayed (i) fourteen (14) days during which the California Department of Corrections did not complete, certify and transmit his Prisoner Trust Fund Account Statement that he was required to submit, and (ii) forty-one (41) days during which he remained unrepresented following the court's grant of his application for appointment of counsel.

         Petitioner argues extraordinary circumstances prevent his counsel from filing his federal petition by the current filing deadline in light of the complexity of his case, the voluminous record ...

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