United States District Court, S.D. California
ORDER: (1) GRANTING RENEWED MOTION FOR EQUITABLE
TOLLING [ECF NO. 34]; (2) DENYING MOTION TO HOLD FEDERAL
HABEAS PROCEEDINGS IN ABEYANCE WITHOUT PREJUDICE [ECF NO.
45]; AND (3) SETTING DEADLINES
Barry
Ted Moskowitz United States District Judge
Pending
before the Court are Petitioner's Renewed Motion for
Equitable Tolling of the Deadline for filing the Petition for
Writ of Habeas Corpus and Petitioner's Motion to Hold
Federal Habeas Proceedings in Abeyance While the State
Exhaustion Petitions are Pending. (ECF Nos. 34, 45.)
For the
reasons discussed below, the Court GRANTS
Petitioner's renewed motion for equitable tolling [ECF
No. 34], DENIES without prejudice the motion
to hold federal proceedings in abeyance [ECF No. 45] and
SETS deadlines as outlined below.
RENEWED
MOTION FOR EQUITABLE TOLLING
In an
order dated November 4, 2019, the Court deferred ruling on
the renewed motion for equitable tolling pending the filing
of an initial or protective petition on or before November
14, 2019. (See ECF No. 40.) On November 5, 2019,
Petitioner filed a petition as directed, and on November 6,
2019, Petitioner filed a Notice Regarding Order Deferring
Ruling on Petitioner's Renewed Motion for Equitable
Tolling. (ECF Nos. 41, 42.) On November 7, 2019, Respondent
filed a Response in opposition and on November 8, 2019,
Petitioner filed a Reply. (ECF Nos. 47, 48.) In the Notice,
“petitioner sets forth the tasks that he was unable to
fully accomplish prior to filing the petition, ”
including “[t]horoughly review trial counsel files,
” “[t]horoughly review each of the 339 exhibits
to the first state habeas petition, ” “[c]onfer
with expert witnesses, except for the experts pertaining to
the selective prosecution claims (Claims 1, 2, and 3) in the
federal petition, to determine whether developments in their
fields require additional testing or assessment or may
provide the basis for additional federal constitutional
claims, ” and “[e]nsure that the arguments in the
automatic appeal and claims in state habeas petitions were
merged in a coherent order, and that redundant facts and
arguments were eliminated.” (ECF No. 42 at 2.) In
response to the Court's request for a list of claims yet
to be developed and drafted (see ECF No. 40 at 7),
Petitioner states that “counsel cannot alert the Court
to claims of which they are unaware because counsel have not
completed the four tasks listed above, ” and that
“[t]he period of ‘the delay necessarily attendant
in the appointment of counsel process' would allow for
the completion of these four tasks.'”
(Id.)
As the
Court previously noted, “the Supreme Court has stated
that ‘the right to counsel necessarily includes a right
for that counsel meaningfully to research and present a
defendant's habeas claims,' and that ‘[b]y
providing indigent capital defendants with a mandatory right
to qualified legal counsel in these proceedings, Congress has
recognized that federal habeas corpus has a particularly
important role to play in promoting fundamental fairness in
the imposition of the death penalty.' McFarland v.
Scott, 512 U.S. 849, 858-59 (1994).” (ECF No. 30
at 4-5.) Mindful of this right and in view of the remaining
tasks outlined in Petitioner's renewed motion and more
recently-filed notice, particularly counsel's statements
that they have not completed review of trial counsel files or
the exhibits filed with the prior state petition, coupled
with the Court's cursory review of the petition now on
file without exhibits, it appears evident that the delay in
appointment of counsel prevented Petitioner from completing
tasks necessary for filing a fully-developed federal petition
within the statutory deadline. (See e.g. ECF No.
34-1 at 8) (“[I]f equitable tolling is not granted,
petitioner will not be able to complete the petition.”)
Respondent continues to oppose the motion for equitable
tolling, asserts that the listed tasks “must be done in
every capital federal habeas case and are not sufficient to
show that ‘extraordinary circumstances' prevent
timely filing of the petition, ” and argues that
“these claims assert nothing more than that counsel has
continued to work diligently on the petition but has not
finished it.” (ECF No. 47 at 2.) Respondent does not
appear to claim prejudice would result from a short grant of
equitable tolling.
Based
on the facts and arguments presented and the initial or
protective petition now on file, the Court is persuaded that
equity favors granting Petitioner the opportunity to complete
record review, investigation and development of his habeas
claims and that it is apparent the delay in appointment of
counsel obstructed Petitioner's ability to file a
fully-developed federal petition within the statutory
deadline. See Doe v. Busby, 661 F.3d 1001, 1011 (9th
Cir. 2011) (“Like any equitable consideration, whether
a prisoner is entitled to equitable tolling under AEDPA will
depend on a fact-specific inquiry by the habeas court which
may be guided by ‘decisions made in other similar
cases.'”), quoting Holland v. Florida, 560
U.S. 631, 650 (2010). The Court also finds no basis to
conclude that a grant of equitable tolling would result in
prejudice to Respondent, and again, Respondent does not
appear to make any such assertion. Accordingly, the Court
GRANTS Petitioner's renewed motion for
equitable tolling from the period between the denial of his
state habeas petition and the appointment of counsel in
federal court.
MOTION
TO HOLD FEDERAL PROCEEDINGS IN ABEYANCE
On
November 6, 2019, Petitioner filed a Motion to Hold Federal
Habeas Proceedings in Abeyance While the State Exhaustion
Petitions are Pending. (ECF No. 45.) However, in view of the
Court's decision to grant equitable tolling in order to
allow Petitioner to complete record review and file a
fully-developed federal petition including exhibits, as well
as recognizing the possibility that additional unexhausted
claims could be developed as a result, the instant motion
appears premature at this time. In the motion, Petitioner
indicated he “has no objection to this Court deferring
its ruling on the motion for stay until the parties have met
and conferred regarding exhaustion, ” citing another
district court decision denying a motion for stay without
prejudice to renewal after the parties met and conferred on
exhaustion. (See ECF Nos. 45-1 at 18, 45-5.)
Accordingly, the Court DENIES the motion to
hold federal proceedings in abeyance WITHOUT
PREJUDICE to renewal after the parties meet, confer
and attempt to reach agreement on the exhaustion status of
the claims in the petition to be filed on or before February
5, 2020, as set forth below.
CONCLUSION
AND ORDER
The
Court GRANTS the renewed motion for
equitable tolling [ECF No. 34] for the period between the
denial of the state habeas petition, November 14, 2018, and
the appointment of federal habeas counsel, February 5, 2019,
and a federal habeas petition filed on or before
February 5, 2020 will be considered
timely. The Court DENIES the motion for stay
and abeyance [ECF No. 45] WITHOUT PREJUDICE
to renewal.
After
that petition is filed, the parties are directed to meet,
confer, and attempt to reach agreement as to the exhaustion
status of the claims in the petition. The parties will file a
joint statement on or before February 26,
2020, outlining and setting forth the areas of
agreement and/or disagreement on the exhaustion matter. If
the parties at a minimum agree that the petition contains
both exhausted and unexhausted claims, Petitioner may file a
renewed motion or request for stay within 21 days of the
deadline for filing the joint statement, on or before
March 18, 2020. If Petitioner files
a request for stay and abeyance, Respondent may file a
response/opposition within 14 days of the deadline for that
filing, on or before April 1, 2020,
and Petitioner may file a reply within 7 days of the deadline
for the response/opposition, on or before April
8, 2020. Unless the Court orders otherwise,
these matters will be decided on the joint statement and
pleadings. If the parties are unable to reach agreement to
the extent discussed in this Order, the Court will issue a
further scheduling Order as necessary.
IT
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