United States District Court, E.D. California
DEATH PENALTY CASE ORDER AFTER HEARING GRANTING
PETITIONER'S MOTION FOR EQUITABLE TOLLING (DOC. NO.
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.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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).
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
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.
Summary of Arguments
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.
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