United States District Court, E.D. California
ORDER GRANTING UNOPPOSED MOTION FOR EQUITABLE
TOLLLING (ECF NO. 34) ORDER MODIFYING SCHEDULING ORDER (ECF
the Court is a December 13, 2019 motion brought by Petitioner
through counsel to equitably toll the limitations deadline
under 28 U.S.C. § 2244 for filing his federal habeas
petition from January 28, 2020 to February 27, 2020. Counsel
represents that Respondent, through deputy attorney general
Michael Dolida, does not oppose the motion.
Court having considered the moving papers and the record in
this proceeding finds the matter amendable to a decision
without a hearing.
Court has equitable jurisdiction to grant pre-petition
tolling. Calderon v. U.S. Dist. Court for the Cent. Dist.
of California (Beeler), 128 F.3d 1283, 1288 (9th Cir.
1997) (overruled in part on other grounds by Calderon v.
U.S. Dist. Court for the Cent. Dist. of California (Kelly
V.), 163 F.3d 530, 540 (9th Cir. 1998)) (abrogated on
other grounds by Woodford v. Garceau, 538 U.S. 202,
206 (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
the Court finds extraordinary circumstances supporting the
requested extension of the applicable one-year filing
deadline. 28 U.S.C. § 2244(d); Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005) (“Generally,
a litigant seeking 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.”); accord
Holland v. Florida, 560 U.S. 631, 649 (2010);
see also Espinoza-Matthews v. California, 432 F.3d
1021, 1026 (9th Cir. 2005) (citing Gaston v. Palmer,
417 F.3d 1030, 1034 (9th Cir. 2005)) (“[Petitioner]
bears the burden of showing that equitable tolling is
appears that notwithstanding Petitioner's reasonable
diligence in pursuing his federal rights, unforeseeable
health issues of appointed co-counsel, issues beyond
Petitioner's control, have delayed assembly, review and
investigation of voluminous core and noncore records and
preparation of a comprehensive federal petition including
complex and potentially new claims. (See ECF Nos.
1-8, 20-32, and 34; see also McFarland v. Scott, 512
U.S. 849, 855-57 (1994) (given the complex nature of capital
habeas proceedings and the seriousness of the possible
penalty, an attorney's assistance in preparing a federal
habeas corpus petition is crucial and includes a right for
that counsel meaningfully to research and present a
defendant's claims); McCleskey v. Zant, 499 U.S.
467, 498 (1991) (“[P]etitioner must conduct a
reasonable and diligent investigation aimed at including all
relevant claims and grounds for relief in the first federal
there is no reason to believe that Respondent will suffer
prejudice from the relatively short delay that a grant of
equitable tolling would entail. Deputy attorney general
Dolida's non-opposition to the motion appears to confirm
the requested tolling is not prejudicial. See Hoyos v.
Wong, Case No. 09cv0388 L(NLS) 2010 WL 596443, at **4, 5
(S.D. Cal. Feb. 16, 2010) (among the factors courts have
considered relevant in deciding the question of equitable
tolling are case complexity and whether the state would
suffer prejudice from the delay). Nothing suggests the
requested extension of time will significantly impact the
ability of Respondent to oppose any challenges raised by
Petitioner to the underlying 1999 judgment.
the Court is extending the time for Petitioner to file a
federal habeas petition, the Court finds good cause to modify
the April 15, 2019 scheduling order to extend scheduled
post-petition events, as provided below.
Petitioner's unopposed motion for equitable tolling (ECF
No. 34) is GRANTED, such that:
1. Petitioner shall file the petition pursuant to 28 U.S.C.
§ 2254, including argument and points and authorities by
not later than February 27, 2020.
2. The parties shall meet and confer regarding exhaustion
issues and file a joint statement advising the Court which
claims are exhausted or partially exhausted by not later than
June 1, 2020.
3. Respondent shall file his answer to the federal petition,
including all substantive and procedural defenses, argument
and points and authorities by not later than October 28,
4. The Court's April 15, 2019 scheduling order (ECF No.
16) shall otherwise continue in ...