Andrade v. Johnson

Opinion

. □ . UNITED STATES DISTRICT COURT «5 ©

9. SOUTHERN DISTRICT OF CALIFORNIA | □ . } MARTIN .G. ANDRADE, Case No.: 3:20-cv-01147-MMA-RBM Petitioner, REPORT AND V. RECOMMENDATION OF UNITED RAYBON JOHNSON, Warden, RESPONDENT'S MOTION T 6 45 Respondent.|| DISMISS — [Docs. 1, 7] . . On June 16, 2020, Petitioner Martin G. Andrade (“Petitioner”), a state prisoner proceeding pro se, constructively filed a Petition for Writ of Habeas Corpus (“Petition”) junder 28 U.S.C. § 2254. (Doc. 1.) According to the Petition, Petitioner was convicted of first-degree murder with an admitted gang allegation and prior strike conviction and was ||sentenced in 2016 in the Imperial County Superior Court. (Doc. | at 1-2 (citing Imperial Cnty. Super. Ct. Case No. JCF030233); see Doc. 7-1 at 5.) Petitioner challenges his conviction on three grounds: (1) the trial court violated Petitioner’s federal rights to an impartial and unanimous jury; (2) the prosecution’s inclusion of excluded enhancements violated the plea agreement and irreparably damaged Petitioner’s right to a fair trial; and foo

(3) the trial court committed reversible error in permitting the prosecution to introduce irrelevant evidence. (See Doc. 1 at 6-8, 53-98; see also Doc. 7-1 at 5.) Before the Court are the underlying Petition and Respondent Raybon Johnson’s (“Respondent”) Motion to Dismiss the Petition (“Motion to Dismiss”). (Docs. 1, 7.) Petitioner did not file an opposition to the Motion to Dismiss, however, the Petition and an accompanying Motion to File Late Habeas Petition addresses the issues raised in Respondent’s Motion to Dismiss. After a thorough review of the papers on file, the facts, the applicable law, the undersigned respectfully recommends that Respondent’s Motion to Dismiss be DENIED and a new briefing schedule on the merits of the Petition be issued. Il. BACKGROUND & PROCEDURAL HISTORY A. - Underlying Offense | □ In 2013, Martin Garza, his sister, and five friends went to a party in El Centro. (Doc. 1 at 22-23.) The group arrived at the party and were confronted by Petitioner and a group of people. Ud. at 23.) Petitioner asked Garza and his group where they were from, what they “claimed,” and repeated the phrase “North Side Centro.” (/d.) Garza denied any gang affiliation. Ud.) An individual in Petitioner’s-group intervened and stopped the altercation. (See id. at 24.) Later, Petitioner resumed references to “North Side Centro.” (dd. at 24.) Tensions escalated, a fight broke out, and Garza was stabbed. (/d.) Garza eventually died from the injuries. (/d. at 26.) After an investigation, Petitioner was arrested. (Id. at 37.) B. Conviction ,

In 2016, a jury found Petitioner guilty of first-degree murder (Cal. Penal Code § 187(a)(1)). (Doc. 1 at 1-2; Doc. 7-1 at 5.) Ina separate proceeding, Petitioner admitted to gang allegation (Cal. Penal Code § 186.22(b)). (Doc. 1 at 21; Doc. 7-1 at 5.) Ina bifurcated proceeding, the Court found that Petitioner had a prior strike conviction (Cal. Penal Code § 667(b)-(1)). (Doc. 7-1 at 5; see Doc. 1 at 2, 21.) The Court sentenced Petitioner to fifty years to life in prison. (Doc. 1 at 1; Doc. 7-1 at 5.)

C. Direct Appeal Petitioner appealed his conviction to the California Court of Appeal. (Doc. 1 at 2.) 2018, the Court of Appeal affirmed the conviction. (/d. (citing Cal. Ct. App. Case No. D070707).) Petitioner then appealed his conviction to the California Supreme Court. (See id.) On October 10, 2018, the California Supreme Court summarily denied review. (Doc. 1 at 2 (citing Cal. Super. Ct. Case No. S250497); Doc. 7-1 at 5.) Petitioner did not file a petition for certiorari in the United States Supreme Court. (Doc. 1 at 3.) D. “Out-to-Court” Status and Federal Habeas Corpus Petition On July 23, 2019, Petitioner went “out-to-court”! and inventoried his personal property—including his legal materials—with the California Department of Corrections /and Rehabilitation (“CDCR”). (Doc. 1 at 14-16; Doc. 2 at 2-3; Doc. 7-1 at 8-9.) His property was not immediately returned to him, and it is unclear when exactly Petitioner was no longer on out-to-court status or which facility he returned to. (See Doc. 1 at 14-15; see also Doc. 7-1 at 8.) Petitioner was then transferred from Pelican Bay State Prison (“PBSP”) to California State Prison Los Angeles County (“CSP-LAC”).? (See Doc. 2 at 2.) On August 7, 2019, Petitioner submitted an “Inmate/Parolee Request for Interview, Item or Service” requesting to have his property/legal materials returned to him at CSP- LAC. (Doc. 1 at 15; Doc. 2 at 2; Doc. 7-1 at 8.) Petitioner alerted CDCR of his approaching -19 ||court dates, requested they call the correctional officer with whom he inventoried his property, and requested they send his property to him. (Doc. 1 at 15; Doc. 7-1 at 8.) On ;August 17, 2019, a property officer responded to Petitioner’s request and informed Petitioner that “they want [to] send your property to [C SP-JLAC[,] I will try to check with [correctional officer] Miller regarding your legal work...” (Doc. 1 at 15.) Petitioner also |{included an undated response forwarded by a CDCR official stating that his property would | } □ ! “Out-to-court means an inmate is temporarily removed from a facility to be brought before a court to be tried for an offense, to be examined by a grand jury or magistrate, or for any other court proceedings.” Cal. Code Regs. tit. 15, § 3000 (2021). 2 The exact date that Petitioner was transferred from PBSP to CSP-LAC is unclear from a review of the filings. (Doc. 2 at 2; see Doc. 1 at 15; see also Doc. 7-1 at 8-9.) .

}remain at PBSP per department policy. (Doc. 1 at 16; Doc. 2 at 2.) Petitioner also vaguely references an appeal while housed at CSP-LAC requesting to retrieve his property which did not receive a response, but it is unclear when such an appeal was submitted. (Doc. 2 2.) On June 8, 2020, Petitioner’s property—including his legal materials—was returned him while housed at CSP-LAC as evidenced by a form entitled “Inmate Property ||Inventory.” (Doc. 1 at 14; Doc. 2 at 2; Doc. 7-1 at 8-9.) | □ On June 16, 2020 (i.e., 160 days after the one-year statute of limitations period {elapsed), Petitioner filed the instant Petition and an accompanying Motion to File Late Habeas Petition.? (Doc. 1 at 12-13; Doc. 2 at 1; Doc. 7-1 at 6.) Tl. LEGAL STANDARD A prisoner is entitled to federal habeas relief only if he is held in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a) (2018); see Wilson v. Corcoran, 562 U.S. 1, 1-2 (2010) (per curiam). □ The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a one-year statute of limitations to file a federal habeas petition after the state judgment becomes final. U.S.C. § 2244(d); see Smith v. Mahoney, 611 F.3d 978, 993 (9th Cir. 2010). Petitions filed after the statute of limitations may be dismissed with prejudice. See Jimenez v. Rice, F.3d 478, 482-83 (9th Cir. 2001). □ AEDPA is “subject to equitable tolling in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010). The AEDPA statute of limitations defense is not jurisdictional. /d. A non-jurisdictional federal statute of limitations, such as AEDPA’s, is “subject to a ‘rebuttable presumption’ in favor ‘of equitable tolling.’” Jd. at 645-46 (quoting Irwin v. (23 . 3 Given that the Court issued an Order Requiring Response to Petition (“Order”) setting forth a briefing schedule on the Petition, on July 20, 2020, the undersigned issued a minute order denying the Motion to Late Habeas Petition as moot and stated the case “will proceed as outlined in the Order.” (Doc. 5.) However, the Motion to File Late Habeas Petition contains information directly relevant to the instant analysis, therefore, it will be considered. 4 AEDPA provides another tolling provision which suspends the limitations period for the time during which a “properly filed” application for post-conviction or other collateral review is pending in state court. 28 U.S.C. § 2244(d)(2); Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005). Because Petitioner did not seek collateral post-conviction relief in state court, such tolling does not apply here. .

Dept. of Veterans Affairs, 498 U.S. 89, 95-96 (1990)) (emphasis in original). Notably, equitable principles traditionally govern the substantive law of habeas corpus. Jd. at 646. Although Petitioner did not timely file the instant Petition within the one-year statute lof limitations period, Petitioner argues that he is entitled to equitable tolling. (See Doc. 2 /at 1 (“[b]Jecause Petitioner immediately filed his petition . . . after receiving his property, |\|he should not be penalized with the ‘tolling’ procedure because it was not his □□□□□□□□□□□ Respondent counters that the Petition should be dismissed, because Petitioner failed to meet the exceptional circumstances standard of equitable tolling. (Doc. 7-1 at 6-7.) Respondent argues that Petitioner’s lack of access to his legal materials does not amount to exceptional circumstances, because he knew the factual basis of his claim to file a basic form habeas petition notwithstanding the lack of access. (See id. at 10.) Respondent argues that Petitioner did not act diligently, because he did not file the Petition when he had his legal materials and made only a single documented request for return of the materials. (Ud. at 11-12.) . . For the reasons discussed below, the Court finds that Petitioner did not file his Petition within the one-year statute of limitations. However, he is entitled to equitable tolling, because he diligently pursued his rights and extraordinary circumstances out of his control prevented him from timely filing his Petition. See Pace, 544 U.S. at 418; see also Espinoza-Matthews v. State of California, 432 F.3d 1021, 1026 (9th Cir. 2005). A. Petition was Not Filed within the Statute of Limitations Under AEDPA, the one-year statute of limitations to file a federal habeas petition begins to run after the state judgment becomes final. 28 U.S.C. § 2244(d); see Smith, 611 F.3d at 993. AEDPA states in relevant part: □ (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of— (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review[.]

U.S.C. § 2244(d)(1)(A). □□

“The period of direct review after which a conviction becomes final includes the [ninety] days during which the state prisoner can seek a writ of certiorari from the United States Supreme Court.” Zepeda v. Walker, 581 F.3d 1013, 1016 (9th Cir. 2009). It is appropriate to dismiss a federal petition for a writ of habeas corpus with prejudice when it was not filed within AEDPA’s one-year statute of limitations. Jimenez, 276 F.3d at 482- The statute of limitations is a threshold issue that courts may resolve before the merits of individual claims. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002). Here, the parties agree that the Petition was filed after the one-year statute of limitations. (Doc. 7-1 at 6-7; see Doc. 2 at 1.) Petitioner had ninety days to seek review from the United States Supreme Court after the California Supreme Court denied his petition for review on October 10, 2018. (Doc. 7-1 at 6); see Zepeda, 581 F.3d at 1016. ||He did not seek review. (Doc. | at 3.) Thus, judgment became final on January 8, 2019, giving Petitioner until January 8, 2020 to file his petition in federal court, absent tolling. (Doc. 7-1 at 6); 28 U.S.C. § 2244(d); see Smith, 611 F.3d at 993. The Petition was filed June 16, 2020—160 days after the one-year statute of limitations expired. (Doc. 1 at ‘17 12-13; Doc. 7-1 at 8-9); 28 U.S.C. § 2244(d); see Smith, 611 F.3d at 993. B. Petitioner is Entitled to Equitable Tolling. □ Petitioner alleges circumstances beyond his control made it impossible for him to timely file the Petition. Specifically, Petitioner alleges CDCR officials kept his legal materials and did not return them until after the deadline had run. (See generally Doc. 2.) Therefore, Petitioner alleges he is entitled to equitable tolling. (See id. at 1.) A habeas petitioner may be entitled to equitable tolling of AEDPA’s one-year statute limitations if he can establish two elements: “(1) that he has been pursuing his rights diligently; and (2) that some extraordinary circumstance stood in his way.” Pace, 544 U.S. 418. The diligence required of a petitioner is “reasonable,” not the “maximum feasible ....” Holland, 560 U.S. at 653 (internal quotations omitted). But equitable tolling is only available “if extraordinary circumstances beyond a prisoner’s contro! make it impossible

file a petition on time.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002). A petitioner seeking to equitably toll the statute of limitations bears the burden of showing that it should apply to him. Lawrence v. Florida, 549 U.S. 327, 336 (2007). “Determining whether equitable tolling is warranted is a fact-specific inquiry.” Spitsyn v.. Moore, 345 796, 799 (9th Cir. 2003) (internal quotations omitted). “[T]he threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.” Miranda, 292 F.3d at 1066 (alterations in original and internal quotations omitted). The dates relevant to the equitable tolling analysis are as follows:

January 8, 2019 (i.e., 90 days after the

Petitioner went on out-to-court status and July 23, 2019 (i.e., 196 days after the

One-year statute of limitations elapsed January 8, 2020 (i.e., 169 days after. Petitioner went out-to-court and ere

limitations elapsed) :

Petitioner filed the Petition June 16, 2020 (i.e., 8 days after Petitioner’s legal materials were returned and 160 days after the statute of limitations period 22, _ 1. Petitioner Pursued His Rights Diligently Although Petitioner only made a single documented request for his property, his diligence appears reasonable under the circumstances. (Doc. 1 at 15; Doc. 7-1 at 8); see Holland, 560 U.S. at 653 (2010); see also Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir. 2011) (“[rJeasonable diligence requires only ‘the effort that a reasonable person might. . . deliver under [their] particular circumstances.’”). On July 23, 2019, Petitioner complied

1 } with CDCR policy and inventoried his property while out-to-court. (Doc. 1 at 14-16.) When his property was not immediately returned to him, Petitioner filed a request for the /return of his property on August 7, 2019. (Ud. at 15.) Therein, Petitioner emphasized that his court and filing dates were soon approaching and a speedy return of his property was necessary. (See id.) When CDCR officials responded to Petitioner’s request on August 17, 2019, it was reasonable for Petitioner to cease requesting his documents for two reasons: (1) CDCR officials were aware of his request; and (2) they alluded to sending Petitioner his legal materials when they could. See cf Fue v. Biter, 842 F.3d 650, 654 (9th Cir. 2016) (finding fourteen-month wait not an unusually long time to wait for a court’s decision, where it was reasonable to believe the court would notify petitioner). Petitioner made at least one documented request for his legal documents. (Doc. 1 at 15.) This is acceptable here, given reasonable diligence “is not the arena of bright-lines and dates certain,” nor does it require “maximum feasible diligence.” Busby, 661 F.3d at 1015; Holland, 560 USS. at 653. Petitioner requested his materials be returned to him, his request was acknowledged, and was reasonable to believe his materials were on their way. (Doc. | at 15.) Further, Petitioner alleges that he filed an appeal? to gain access to his property, which bolsters his claim. (Doc. 2 at 2.) Petitioner had until January 8, 2020 to file his petition in court, but his legal papers were not returned to him until June 8, 2020. (Doc. 1 at 3, 14; Doc. 7-1 at 6); see Zepeda, F.3d at 1016. From July 23, 2019, the date Petitioner inventoried his property, to June 8, 2020, the date his property was returned to him, Petitioner was without his property for ||321 days or ten months and seventeen days. (Doc. | at 14.) A ten-month wait for the return of property is not an unusually long time given the circumstances, especially

—————__— > It is unclear whether Petitioner’s reference to an “appeal” refers to an appeal in state court or an administrative appeal. (See Doc. 2 at 2.) But from the context of the briefing, it appears Petitioner is referring to an administrative appeal submitted to prison officials to have his property returned to him. (See id.) 3 □

considering Petitioner is a pro se prisoner with little recourse and was housed at a different prison. See Espinoza-Matthews, 432 F.3d at 1027-28; see also Roy y Lampert, 465 F.3d 3 970 (9th Cir. 2006) (“even though pro se status alone is not enough to warrant equitable tolling, it informs and colors the lens through which we view the filings, and whether these filings made sufficient allegations of diligence.”); Dickershaid v. Martel, 648 F. App’x 618, 621 (9th Cir. 2016) (finding petitioner entitled to equitable tolling where he was improperly deprived of his legal materials for four months and sixteen days and diligently filed nine grievances for the return of his property); cf Knight v. Schofield, 292 F.3d 709, 710-11 (11th Cir. 2002) (per curiam) (finding a sixteen-month wait to contact court reasonable when pro se petitioner was told he would be notified of a decision but was /not). In fact, the Ninth Circuit has squarely addressed this issue. In Espinoza-Mathews, the issue was whether a pro se petitioner who filed a late petition and was deprived of his legal materials for 325 days was entitled to equitable tolling. See Espinoza-Matthews, 432 F.3d at 1028. The Court held that petitioner was entitled to equitable tolling, where he made four requests for the return of his legal materials and the delayed return of his legal materials amounted to extraordinary circumstances preventing timely filing. Id. at 1027-28. Under AEDPA’s statute of limitations, petitioner had until April 18, 2003 to timely file his petition. Id. at 1025. Petitioner was without his materials from April 14, 2002 until his release from administrative segregation (“Ad- Seg”) on March 5, 2003—a total of 325 days out of the 365-day statute of limitations iperiod. Jd. at 1028. Two months after his legal materials were first taken from him, he inquired regarding their whereabouts. Jd. at 1027. In his inquiry, he specifically requested that, once found, his property be returned so he could prepare his federal habeas petition. Shortly thereafter, his property was found, but he was not then given his legal papers. Asa result, “he continued to pursue his administrative appeals.” Id. Petitioner requested the return of his legal materials three more times, but prison officials denied each request. See id. In response to the requests, prison officials suggested that petitioner could not access his property until after he was released from Ad-Seg. Jd. Once released from 9 .

1 Ad-Seg, petitioner’s legal materials were returned with slightly over one month to prepare and file his petition. Id. at 1027-28. Depending on application of the prisoner’s mailbox the petition was either 24 days late or 115 days late when filed. Jd. at 1026. The Ninth Circuit held the denial of petitioner’s legal materials was an extraordinary circumstance, that petitioner exercised diligence in pursuit of his rights, and that petitioner was entitled to equitable tolling of the entire 325-day period he was without his legal materials. Jd. at 1027-28. . As in Espinoza-Matthews, Petitioner in this case exercised reasonable diligence during the 321 days he was without his legal materials. See Espinoza-Matthews, 432 F.3d 1028. Petitioner made a documented request for the return of his legal materials only weeks after they were taken in CDCR custody. (See Doc. 1 at 14-16; see also Doc. 2 2.) Additionally, Petitioner allegedly filed an appeal requesting the materials, although is undocumented. (Jd.) Once he received his legal materials on June 8, 2020, Petitioner immediately filed the Petition and a Motion to File Late Habeas Petition on June 16, 2020. }(Docs. 1, 2.) These filings, constructively filed eight days after receiving his legal materials, further evidence that Petitioner diligently pursued his rights. See Dickershaid, 648 F. App’x at 620-21.

_ Respondent also argues that Petitioner’s failure to “make some effort to pursue their rights over the ten-month period” or 286 days before losing access to his legal documents illustrates his lack of diligence. (See Doc. 7 at 9, 11-12.) This includes the ninety days to seek review from the United States Supreme Court and the 196 days that accrued from the start of the one-year statute-of-limitations period which preceded the date Petitioner went out-to-court. (U/d.) But Respondent’s argument is unavailing and has been unequivocally rejected by the Ninth Circuit. Grant v. Swarthout, 862 F.3d 914, 921 (9th Cir. 2017). As stated in Grant, “[n]o opinion of th[e Ninth Circuit] or of the Supreme Court has ever upheld the denial of equitable tolling to a prisoner on the ground that he had not used the portion of the one-year statute of limitations period that preceded the event justifying tolling in a reasonable manner.” Jd. “Nor [has the Ninth Circuit] even suggest[ed] in any

□ 10

1 of [its] cases that failing to have worked on, or failing to work sufficiently diligently on, habeas petitions during a portion of the pre-extraordinary circumstances period might prevent the petitioner from receiving equitable relief.” Id. And Respondent’s use of the ninety days to seek review before judgment was final and before the one-year statute of limitations period began to accrue is inappropriate and contrary to the full 365 days afforded to Petitioner by Congress. See id. at 919-921. Grant specifically noted the Congressional intent behind equitable tolling as follows: Congress has determined that state prisoners are entitled to one full year from the date on which their conviction becomes final before their federal petition for habeas corpus must be filed, and the Supreme Court has rightly held that equitable tolling is an available remedy to ensure that prisoners are afforded their full statutory entitlement. Equitable tolling may not be applied in a manner that would serve to _ deprive prisoners of their right to use the entire statutory period in the way they deem fit... To use equitable principles to in effect shorten the already-short statutory period available to all prisoners by requiring them to anticipate extraordinary . . circumstances and to perform the necessary legal work in a shorter period of time than the statute requires would deprive them of the availability of the full statute-of- limitations period and would compel them to meet the additional judge-made requirement of performing their legal research and writing on a schedule deemed ‘16 appropriate in hindsight by a judge. at 920. . Petitioner exercised diligence in requesting his legal materials, immediately filed the Petition when his materials where returned, and is entitled to the full year afforded to him by Congress. See Espinoza-Matthews, 432 F.3d at 1027-28; see also Grant, 862 F.3d at 919-21. Therefore, the undersigned finds Petitioner exercised reasonable diligence under the circumstances. See Espinoza-Matthews, 432 F.3d at 1027-28. 2. Extraordinary Circumstances Prevented Petitioner from Timely Filing the Petition — Here, extraordinary circumstances prevented Petitioner from timely filing the Petition. Respondent is correct that Petitioner possessed his legal materials for nearly ten }months or 286 days from the date the California Supreme Court denied review to the date Petitioner inventoried his property with CDCR. (Doc. 7-1 at 9-10.) But Petitioner was 11

1 } actually without all of his legal materials for 321 days. (See Doc. 1 at 14; see also Doc. 7- at 8-9.) This is comprised of the 169 days Petitioner, was without his legal materials during the time the one-year statute of limitations period was accruing and the. 152 days after the deadline to file had passed when his files were returned. (See Doc. 1 at 14; see Doc. 7-1 at 8-9.) As Respondent concedes, Petitioner followed standard prison policy inventorying his property while out-to-court and it was prison policy to have his property returned when he returned from out-to-court status. (Doc. 7-1 at 10.) It is “unrealistic” to expect Petitioner to prepare and file a “meaningful” petition on his own within the statutory period “without access to his legal file.” See Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009).

Respondent is correct that Petitioner did not point to a specific document necessary to prepare the Petition. (See Doc. 7-1 at 10-11.) But even in such a circumstance, the B Ninth Circuit has held that a “complete lack of access” to a legal file “may constitute an extraordinary circumstance... .” Ramirez, 571 F.3d at 998; Espinoza-Matthews, 432 F.3d 1027-28; see Lott v. Mueller, 304 F.3d 918, 925-26 (9th Cir. 2002) (holding that an evidentiary hearing was required to determine if denying petitioner access to legal files for eighty-two days warranted equitable tolling). 18: Similar to Espinoza-Matthews, as outlined above, Petitioner did not have access to his legal materials for 169 days of his one-year statute of limitations period and 152 days after the deadline to file had passed. (See Doc. 1 at 14); see Espinoza-Matthews, 432 F.3d 1027-28; see supra Part IV.B.1. at pp. 9-10. Beginning just two weeks after his property was taken, Petitioner made at least one documented request for his property and a second undocumented reference to an appeal requesting his property. (See Doc. 1 at 15; Doe. 2 at 2.) Petitioner was told both that CDCR officials intended to send his property to his new prison and, in a separate response, that his property would remain at PBSP. (Doc. 1 at 15- 16; Doc. 2 at 2.) Petitioner received his property 152 days after the statute of limitations period expired, but he filed the Petition eight days after the materials were returned to him. (Doc. 1 at 14.) As in Espinoza-Matthews, the denial of Petitioner’s legal materials was an 12

1 }|extraordinary circumstance and Petitioner is entitled to equitable tolling of the entire 321- day period he was without his legal materials. See Espinoza-Matthews, 432 F.3d at 1028. In sum, Petitioner acted with reasonable diligence under the circumstances when he made his request for his legal materials and immediately filed the Petition and Motion to File Late Habeas Petition upon receipt of those materials. See Holland, 560 U.S. at 653; see also Dickershaid, 648 F. App’x at 620-21. And Petitioner’s complete deprivation of legal materials constitutes extraordinary circumstances out of his control preventing timely filing. Ramirez, 571 F.3d at 998; Espinoza-Matthews, 432 F.3d at 1027-28. As such, equitable tolling is appropriate. . Because Petitioner was denied access to his legal materials for 321 days, the Court respectfully recommends that the statute of limitations be tolled for that entire period— from July 23, 2019 to June 8, 2020. Applying equitable tolling, Petitioner had until on or about April 26, 2021 to timely file his Petition. Given that the Petition was filed on June } 16, 2020, the Petition is timely. ‘V. CONCLUSION For the reasons given, the Court respectfully recommends Respondent’s Motion to Dismiss be DENIED and a new briefing schedule on the merits of the Petition be issued. This Report and Recommendation is submitted to the United States District Judge assigned to this case, under 28 U.S.C. § 636(b)(1), and Civil Local Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of California. Any party may file written objections with the Court and serve a copy on all parties on or before March 18, 2021. The document should be captioned “Objections to Report and Recommendation.” Any reply to the Objections shall be served and filed on or before April 15, 2021. The parties are advised that failure to file objections within the specific time may waive the right to appeal the District Court’s Order. Martinez v. Yist, 951 F.2d 1153, 1157 (9th Cir. 1991). . . □ 13

_IT IS SO ORDERED. DATE: March □□ 2021

ON. RUTH B EZ MONTENEGRO UNITED STATES MAGISTRATE JUDGE

: : | || □