United States District Court, N.D. California, San Jose Division
ORDER STAYING CASE PENDING APPOINTMENT OF COUNSEL RE:
DKT. NOS. 448, 435
H. KOH, United States District Judge.
the Court is the Government's motion to dismiss Defendant
Williams's October 31, 2017 motion to vacate, set aside,
or correct his sentence pursuant to 28 U.S.C. § 2255.
ECF No. 448. In its motion, the Government argued that
Defendant's motion is untimely and that equitable tolling
is not appropriate. For the following reasons, the Court
requires additional briefing before it can rule on the
Government's motion. Because the Court believes the aid
of defense counsel is needed, the Court administratively
stays the case and orders the Federal Public Defender to
identify a Criminal Justice Act panel attorney who is
available to take this case.
this case has spanned many years and the original counsel,
probation officer, and judge have either retired or are no
longer assigned to the case, the Court reconstructs the
relevant case history to the extent possible.
January 30, 2008, a grand jury in the Northern District of
California returned an indictment against Defendant charging
him with a single count of arson under 18 U.S.C. 844(i). The
case proceeded to trial before United States District Judge
Jeremy Fogel on January 9, 2009. Leading up to and during the
trial, Defendant was represented by Assistant Federal Public
Defender Manuel Araujo. On January 29, 2009, a jury found
Defendant guilty of arson.
was originally set for April 15, 2009. However, on March 5,
2009, Judge Fogel granted the parties' stipulation
relieving the Federal Public Defender as Defendant's
attorney and substituting Susan Dondershine as defense
counsel. ECF No. 207. Judge Fogel therefore
continued the sentencing to June 24, 2009. Sentencing did not
occur for nearly four years, though, due to various
competency proceedings. The Court describes these proceedings
to the extent possible below because they are relevant to
Defendant's § 2255 motion.
on April 17, 2009, Judge Fogel granted Defendant's motion
(ECF No. 209) to determine the mental competency of
Defendant. ECF No. 214. In his order, Judge Fogel found that
“Defendant Donald Ray Williams may presently be
suffering from a mental disease or defect rendering him
mentally incompetent to the extent that he is unable to
assist properly in his defense” and ordered Defendant
“be committed to the custody of the Attorney General
for hospitalization for treatment in a suitable
facility.” Id. At the same time, Judge Fogel
suspended the criminal proceedings. Id. However, at
a later competency hearing on November 4, 2009, Ms.
Dondershine stated that she no longer had doubts as to
whether Defendant was competent. ECF No. 250 at 2-3.
Accordingly, at that hearing, Judge Fogel found Defendant to
be competent to proceed with post-trial motions and
sentencing. Id. at 3.
January 4, 2019, however, the Court received a report by
defense expert Dr. Silva in which Dr. Silva opined that
Defendant is mentally incompetent. ECF No. 298 at 3, 5. Based
upon that report, Defendant filed a second motion to
determine his mental competency (ECF No. 294), which the
Court granted on January 12, 2011. ECF No. 297. The Court
therefore ordered that the Bureau of Prisons perform an
evaluation of Defendant's competency. Id. The
competency evaluation was completed by Dr. Hope on March 30,
2011. See ECF No. 307 at 5; ECF No. 341 at 4. On May
6, 2011, Judge Fogel found, pursuant to 18 U.S.C. §
4244(d), “that the defendant is presently suffering
from a mental disease or defect and that he should, in
lieu of being sentenced to imprisonment, be committed to
a suitable facility for care or treatment.” ECF No.
over a year of treatment, on August 20, 2012, Judge Fogel
ordered that Defendant be reevaluated by the Bureau of
Prisons for competency. ECF No. 328. Dr. Wolfson completed
the evaluation and concluded that Defendant was competent to
be sentenced. ECF No. 395 at 2-3. At a status conference on
January 31, 2013, Judge Fogel found that Defendant's
“health is restored to the point where he can . . .
participate in the proceedings” and reinstated
sentencing proceedings. ECF No. 396 at 2-3.
22, 2013, Judge Fogel sentenced Defendant to 240 months
imprisonment plus 3 years of supervised release. ECF No. 349;
see ECF No. 354 (transcript). Defendant was also
ordered to pay a $100 special assessment and $28, 619, 275.46
in restitution. ECF No. 350. Defendant moved for
reconsideration on June 3, 2013 (ECF No. 355), and Judge
Fogel denied the motion on July 1, 2013 (ECF No. 365).
12, 2013, Defendant filed a notice of appeal with the Ninth
Circuit appealing the judgment (“first appeal”).
ECF No. 369. The first appeal was assigned case number
13-10381 by the Ninth Circuit. ECF No. 371.
the first appeal was pending, on September 19, 2013,
Defendant filed a motion under 28 U.S.C. § 2255 to
vacate, set aside, or correct sentence. ECF Nos. 407, 403
(declaration of Manuel Araujo in support of the motion).
Because a defendant in a federal criminal prosecution
generally is not entitled to have a direct appeal and a
§ 2255 motion considered simultaneously, Judge Fogel
“defer[red] consideration of and administratively
terminat[ed]” the § 2255 motion pending
disposition of the appeal numbered 13-10381. ECF No. 414
(citing Tripati v. Henman, 843 F.2d 1160, 1162 (9th
Cir. 1988)). In his order, Judge Fogel stated,
“Following issuance of the mandate by the Court of
Appeals, the motion will be reinstated upon Defendant's
response, Defendant filed a notice of appeal on January 16,
2014 that appealed Judge Fogel's order deferring
consideration of the § 2255 motion (“second
appeal”). ECF No. 419. The second appeal was assigned
case number 14-15147 by the Ninth Circuit. ECF No. 422.
of Defendants' appeals was briefed and decided on the
merits. On March 4, 2014, the Ninth Circuit granted
appellant's motion for voluntary dismissal of the first
appeal. ECF No. 423. Shortly thereafter, on March 21, 2014,