Andrade v. Johnson

• Court: District Court, S.D. California
• Decided: March 4, 2021
• Docket: 3:20-cv-01147
• Status: Unknown

Opinion

. 2 3 4 5 □ 6 7 . 8 UNITED STATES DISTRICT COURT «5 ©

9. SOUTHERN DISTRICT OF CALIFORNIA | □ 10 . 11 |} MARTIN .G. ANDRADE, Case No.: 3:20-cv-01147-MMA-RBM 12 Petitioner, REPORT AND 13 || V. RECOMMENDATION OF UNITED 14 || RAYBON JOHNSON, Warden, RESPONDENT'S MOTION T 6 45 Respondent.|| DISMISS — 16 [Docs. 1, 7] 17 . 18 | . 19 INTRODUCTION 20 On June 16, 2020, Petitioner Martin G. Andrade (“Petitioner”), a state prisoner 21 || proceeding pro se, constructively filed a Petition for Writ of Habeas Corpus (“Petition”) 22 |junder 28 U.S.C. § 2254. (Doc. 1.) According to the Petition, Petitioner was convicted of 23 || first-degree murder with an admitted gang allegation and prior strike conviction and was 24 ||sentenced in 2016 in the Imperial County Superior Court. (Doc. | at 1-2 (citing Imperial 25 ||Cnty. Super. Ct. Case No. JCF030233); see Doc. 7-1 at 5.) Petitioner challenges his 26 || conviction on three grounds: (1) the trial court violated Petitioner’s federal rights to an 27 ||impartial and unanimous jury; (2) the prosecution’s inclusion of excluded enhancements 28 || violated the plea agreement and irreparably damaged Petitioner’s right to a fair trial; and foo

1 ||(3) the trial court committed reversible error in permitting the prosecution to introduce 2 irrelevant evidence. (See Doc. 1 at 6-8, 53-98; see also Doc. 7-1 at 5.) 3 Before the Court are the underlying Petition and Respondent Raybon Johnson’s 4 ||(“Respondent”) Motion to Dismiss the Petition (“Motion to Dismiss”). (Docs. 1, 7.) 5 Petitioner did not file an opposition to the Motion to Dismiss, however, the Petition and an 6 ||accompanying Motion to File Late Habeas Petition addresses the issues raised in 7 Respondent’s Motion to Dismiss. After a thorough review of the papers on file, the facts, 8 the applicable law, the undersigned respectfully recommends that Respondent’s 9 || Motion to Dismiss be DENIED and a new briefing schedule on the merits of the Petition 10 || be issued. 11 Il. BACKGROUND & PROCEDURAL HISTORY 12 A. - Underlying Offense | □ 13 In 2013, Martin Garza, his sister, and five friends went to a party in El Centro. (Doc. 14 1 at 22-23.) The group arrived at the party and were confronted by Petitioner and a group 15 ||of people. Ud. at 23.) Petitioner asked Garza and his group where they were from, what 16 || they “claimed,” and repeated the phrase “North Side Centro.” (/d.) Garza denied any gang 17 affiliation. Ud.) An individual in Petitioner’s-group intervened and stopped the altercation. 18 ||(See id. at 24.) Later, Petitioner resumed references to “North Side Centro.” (dd. at 24.) 19 || Tensions escalated, a fight broke out, and Garza was stabbed. (/d.) Garza eventually died 20 || from the injuries. (/d. at 26.) After an investigation, Petitioner was arrested. (Id. at 37.) 21 B. Conviction ,

22 In 2016, a jury found Petitioner guilty of first-degree murder (Cal. Penal Code § 23 ||187(a)(1)). (Doc. 1 at 1-2; Doc. 7-1 at 5.) Ina separate proceeding, Petitioner admitted to 24 gang allegation (Cal. Penal Code § 186.22(b)). (Doc. 1 at 21; Doc. 7-1 at 5.) Ina 25 || bifurcated proceeding, the Court found that Petitioner had a prior strike conviction (Cal. 26 ||Penal Code § 667(b)-(1)). (Doc. 7-1 at 5; see Doc. 1 at 2, 21.) The Court sentenced 27 || Petitioner to fifty years to life in prison. (Doc. 1 at 1; Doc. 7-1 at 5.) 28

1 C. Direct Appeal 2 Petitioner appealed his conviction to the California Court of Appeal. (Doc. 1 at 2.) 3 2018, the Court of Appeal affirmed the conviction. (/d. (citing Cal. Ct. App. Case No. 4 D070707).) Petitioner then appealed his conviction to the California Supreme Court. (See 5 id.) On October 10, 2018, the California Supreme Court summarily denied review. (Doc. 6 1 at 2 (citing Cal. Super. Ct. Case No. S250497); Doc. 7-1 at 5.) Petitioner did not file a 7 || petition for certiorari in the United States Supreme Court. (Doc. 1 at 3.) D. “Out-to-Court” Status and Federal Habeas Corpus Petition 9 On July 23, 2019, Petitioner went “out-to-court”! and inventoried his personal 10 property—including his legal materials—with the California Department of Corrections 11 |/and Rehabilitation (“CDCR”). (Doc. 1 at 14-16; Doc. 2 at 2-3; Doc. 7-1 at 8-9.) His 12 || property was not immediately returned to him, and it is unclear when exactly Petitioner 13 || was no longer on out-to-court status or which facility he returned to. (See Doc. 1 at 14-15; 14 || see also Doc. 7-1 at 8.) Petitioner was then transferred from Pelican Bay State Prison 15 ||(“PBSP”) to California State Prison Los Angeles County (“CSP-LAC”).? (See Doc. 2 at 16 ||2.) On August 7, 2019, Petitioner submitted an “Inmate/Parolee Request for Interview, 17 ||Item or Service” requesting to have his property/legal materials returned to him at CSP- 18 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 20 || property, and requested they send his property to him. (Doc. 1 at 15; Doc. 7-1 at 8.) On 21 |;August 17, 2019, a property officer responded to Petitioner’s request and informed 22 Petitioner that “they want [to] send your property to [C SP-JLAC[,] I will try to check with 23 [correctional officer] Miller regarding your legal work...” (Doc. 1 at 15.) Petitioner also 24 |{included an undated response forwarded by a CDCR official stating that his property would | 25 |} □ 26 ||! “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 27 || proceedings.” Cal. Code Regs. tit. 15, § 3000 (2021). 28 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.) .

1 |}remain at PBSP per department policy. (Doc. 1 at 16; Doc. 2 at 2.) Petitioner also vaguely 2 ||references an appeal while housed at CSP-LAC requesting to retrieve his property which 3 || did not receive a response, but it is unclear when such an appeal was submitted. (Doc. 2 4 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 6 ||Inventory.” (Doc. 1 at 14; Doc. 2 at 2; Doc. 7-1 at 8-9.) | □ 7 On June 16, 2020 (i.e., 160 days after the one-year statute of limitations period 8 |{elapsed), Petitioner filed the instant Petition and an accompanying Motion to File Late 9 || Habeas Petition.? (Doc. 1 at 12-13; Doc. 2 at 1; Doc. 7-1 at 6.) 10 Tl. LEGAL STANDARD 11 A prisoner is entitled to federal habeas relief only if he is held in custody in violation 12 || of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a) (2018); see 13 || Wilson v. Corcoran, 562 U.S. 1, 1-2 (2010) (per curiam). □ 14 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a one-year 15 || statute of limitations to file a federal habeas petition after the state judgment becomes final. 16 U.S.C. § 2244(d); see Smith v. Mahoney, 611 F.3d 978, 993 (9th Cir. 2010). Petitions 17 || filed after the statute of limitations may be dismissed with prejudice. See Jimenez v. Rice, 18 F.3d 478, 482-83 (9th Cir. 2001). □ 19 AEDPA is “subject to equitable tolling in appropriate cases." Holland v. Florida, 20 ||560 U.S. 631, 645 (2010). The AEDPA statute of limitations defense is not jurisdictional. 21 ||/d. A non-jurisdictional federal statute of limitations, such as AEDPA’s, is “subject to a 22 || ‘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 25 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 26 || analysis, therefore, it will be considered. ||4 AEDPA provides another tolling provision which suspends the limitations period for the time during 27 which a “properly filed” application for post-conviction or other collateral review is pending in state 28 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. .

1 Dept. of Veterans Affairs, 498 U.S. 89, 95-96 (1990)) (emphasis in original). Notably, 2 || equitable principles traditionally govern the substantive law of habeas corpus. Jd. at 646. 3 IV. DISCUSSION 4 Although Petitioner did not timely file the instant Petition within the one-year statute 5 lof limitations period, Petitioner argues that he is entitled to equitable tolling. (See Doc. 2 6 |/at 1 (“[b]Jecause Petitioner immediately filed his petition . . . after receiving his property, 7 |\|he should not be penalized with the ‘tolling’ procedure because it was not his □□□□□□□□□□□ 8 ||Respondent counters that the Petition should be dismissed, because Petitioner failed to 9 ||meet the exceptional circumstances standard of equitable tolling. (Doc. 7-1 at 6-7.) 10 ||Respondent argues that Petitioner’s lack of access to his legal materials does not amount 11 ||to exceptional circumstances, because he knew the factual basis of his claim to file a basic 12 || form habeas petition notwithstanding the lack of access. (See id. at 10.) Respondent argues 13 || that Petitioner did not act diligently, because he did not file the Petition when he had his 14 || legal materials and made only a single documented request for return of the materials. (Ud. 15 at 11-12.) . . 16 For the reasons discussed below, the Court finds that Petitioner did not file his 17 Petition within the one-year statute of limitations. However, he is entitled to equitable 18 tolling, because he diligently pursued his rights and extraordinary circumstances out of his 19 control prevented him from timely filing his Petition. See Pace, 544 U.S. at 418; see also 20 Espinoza-Matthews v. State of California, 432 F.3d 1021, 1026 (9th Cir. 2005). 21 A. Petition was Not Filed within the Statute of Limitations 22 Under AEDPA, the one-year statute of limitations to file a federal habeas petition 23 begins to run after the state judgment becomes final. 28 U.S.C. § 2244(d); see Smith, 611 24 || F.3d at 993. AEDPA states in relevant part: □ 25 (1) A 1-year period of limitation shall apply to an application for a writ of 6 habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of— 27 (A) the date on which the judgment became final by the conclusion of 28 direct review or the expiration of the time for seeking such review[.]

1 U.S.C. § 2244(d)(1)(A). □□

2 “The period of direct review after which a conviction becomes final includes the 3 ||[ninety] days during which the state prisoner can seek a writ of certiorari from the United 4 ||States Supreme Court.” Zepeda v. Walker, 581 F.3d 1013, 1016 (9th Cir. 2009). It is 5 || appropriate to dismiss a federal petition for a writ of habeas corpus with prejudice when it 6 || was not filed within AEDPA’s one-year statute of limitations. Jimenez, 276 F.3d at 482- 7 The statute of limitations is a threshold issue that courts may resolve before the merits 8 || of individual claims. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002). 9 Here, the parties agree that the Petition was filed after the one-year statute of 10 limitations. (Doc. 7-1 at 6-7; see Doc. 2 at 1.) Petitioner had ninety days to seek review 11 ||from the United States Supreme Court after the California Supreme Court denied his 12 || petition for review on October 10, 2018. (Doc. 7-1 at 6); see Zepeda, 581 F.3d at 1016. 13 ||He did not seek review. (Doc. | at 3.) Thus, judgment became final on January 8, 2019, 14 || giving Petitioner until January 8, 2020 to file his petition in federal court, absent tolling. 15 ||(Doc. 7-1 at 6); 28 U.S.C. § 2244(d); see Smith, 611 F.3d at 993. The Petition was filed 16 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. 18 B. Petitioner is Entitled to Equitable Tolling. □ 19 Petitioner alleges circumstances beyond his control made it impossible for him to 20 ||timely file the Petition. Specifically, Petitioner alleges CDCR officials kept his legal 21 || materials and did not return them until after the deadline had run. (See generally Doc. 2.) 22 || Therefore, Petitioner alleges he is entitled to equitable tolling. (See id. at 1.) 23 A habeas petitioner may be entitled to equitable tolling of AEDPA’s one-year statute 24 limitations if he can establish two elements: “(1) that he has been pursuing his rights 25 || diligently; and (2) that some extraordinary circumstance stood in his way.” Pace, 544 U.S. 26 418. The diligence required of a petitioner is “reasonable,” not the “maximum feasible 27 ||....” Holland, 560 U.S. at 653 (internal quotations omitted). But equitable tolling is only 28 available “if extraordinary circumstances beyond a prisoner’s contro! make it impossible

1 file a petition on time.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002). A 2 || petitioner seeking to equitably toll the statute of limitations bears the burden of showing 3 || that it should apply to him. Lawrence v. Florida, 549 U.S. 327, 336 (2007). “Determining 4 || whether equitable tolling is warranted is a fact-specific inquiry.” Spitsyn v.. Moore, 345 5 796, 799 (9th Cir. 2003) (internal quotations omitted). “[T]he threshold necessary to 6 || trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.” 7 || Miranda, 292 F.3d at 1066 (alterations in original and internal quotations omitted). 8 The dates relevant to the equitable tolling analysis are as follows:

0 11 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

14 One-year statute of limitations elapsed January 8, 2020 (i.e., 169 days after. 15 Petitioner went out-to-court and | ere

18 limitations elapsed) :

19 Petitioner filed the Petition June 16, 2020 (i.e., 8 days after Petitioner’s legal materials were returned and 160 days 20 after the statute of limitations period 22, _ 23 1. Petitioner Pursued His Rights Diligently 24 Although Petitioner only made a single documented request for his property, his 25 diligence appears reasonable under the circumstances. (Doc. 1 at 15; Doc. 7-1 at 8); see 26 || Holland, 560 U.S. at 653 (2010); see also Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir. 27 ||2011) (“[rJeasonable diligence requires only ‘the effort that a reasonable person might. . . 28 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.) 2 || When his property was not immediately returned to him, Petitioner filed a request for the 3 |/return of his property on August 7, 2019. (Ud. at 15.) Therein, Petitioner emphasized that 4 ||his court and filing dates were soon approaching and a speedy return of his property was 5 ||necessary. (See id.) 6 When CDCR officials responded to Petitioner’s request on August 17, 2019, it was 7 ||reasonable for Petitioner to cease requesting his documents for two reasons: (1) CDCR 8 officials were aware of his request; and (2) they alluded to sending Petitioner his legal 9 materials when they could. See cf Fue v. Biter, 842 F.3d 650, 654 (9th Cir. 2016) (finding 10 || fourteen-month wait not an unusually long time to wait for a court’s decision, where it was 11 ||reasonable to believe the court would notify petitioner). Petitioner made at least one 12 ||documented request for his legal documents. (Doc. 1 at 15.) This is acceptable here, given 13 ||reasonable diligence “is not the arena of bright-lines and dates certain,” nor does it require 14 “maximum feasible diligence.” Busby, 661 F.3d at 1015; Holland, 560 USS. at 653. 15 Petitioner requested his materials be returned to him, his request was acknowledged, and 16 was reasonable to believe his materials were on their way. (Doc. | at 15.) Further, 17 || Petitioner alleges that he filed an appeal? to gain access to his property, which bolsters his 18 ||claim. (Doc. 2 at 2.) 19 Petitioner had until January 8, 2020 to file his petition in court, but his legal papers 20 || were not returned to him until June 8, 2020. (Doc. 1 at 3, 14; Doc. 7-1 at 6); see Zepeda, 21 F.3d at 1016. From July 23, 2019, the date Petitioner inventoried his property, to June 22 ||8, 2020, the date his property was returned to him, Petitioner was without his property for 23 ||321 days or ten months and seventeen days. (Doc. | at 14.) A ten-month wait for the 24 ||return of property is not an unusually long time given the circumstances, especially

26 || —————__— > It is unclear whether Petitioner’s reference to an “appeal” refers to an appeal in state court or an 27 || administrative appeal. (See Doc. 2 at 2.) But from the context of the briefing, it appears Petitioner is 28 referring to an administrative appeal submitted to prison officials to have his property returned to him. (See id.) 3 □

1 || considering Petitioner is a pro se prisoner with little recourse and was housed at a different 2 ||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 4 ||equitable tolling, it informs and colors the lens through which we view the filings, and 5 || whether these filings made sufficient allegations of diligence.”); Dickershaid v. Martel, 6 ||648 F. App’x 618, 621 (9th Cir. 2016) (finding petitioner entitled to equitable tolling where 7 ||he was improperly deprived of his legal materials for four months and sixteen days and 8 || diligently filed nine grievances for the return of his property); cf Knight v. Schofield, 292 9 || F.3d 709, 710-11 (11th Cir. 2002) (per curiam) (finding a sixteen-month wait to contact 10 court reasonable when pro se petitioner was told he would be notified of a decision but was 11 |/not). In fact, the Ninth Circuit has squarely addressed this issue. 12 In Espinoza-Mathews, the issue was whether a pro se petitioner who filed a late 13 || petition and was deprived of his legal materials for 325 days was entitled to equitable 14 tolling. See Espinoza-Matthews, 432 F.3d at 1028. The Court held that petitioner was 15 || entitled to equitable tolling, where he made four requests for the return of his legal materials 16 ||and the delayed return of his legal materials amounted to extraordinary circumstances 17 || preventing timely filing. Id. at 1027-28. Under AEDPA’s statute of limitations, petitioner 18 || had until April 18, 2003 to timely file his petition. Id. at 1025. Petitioner was without his 19 materials from April 14, 2002 until his release from administrative segregation (“Ad- 20 ||Seg”) on March 5, 2003—a total of 325 days out of the 365-day statute of limitations 21 |iperiod. Jd. at 1028. Two months after his legal materials were first taken from him, he 22 || 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. 24 Shortly thereafter, his property was found, but he was not then given his legal papers. 25 Asa result, “he continued to pursue his administrative appeals.” Id. Petitioner 26 || requested the return of his legal materials three more times, but prison officials denied each 27 ||request. See id. In response to the requests, prison officials suggested that petitioner could 28 ||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 2 || and file his petition. Id. at 1027-28. Depending on application of the prisoner’s mailbox 3 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 5 || circumstance, that petitioner exercised diligence in pursuit of his rights, and that petitioner 6 || was entitled to equitable tolling of the entire 325-day period he was without his legal 7 ||materials. Jd. at 1027-28. 8 . As in Espinoza-Matthews, Petitioner in this case exercised reasonable diligence 9 || during the 321 days he was without his legal materials. See Espinoza-Matthews, 432 F.3d 10 1028. Petitioner made a documented request for the return of his legal materials only 11 weeks after they were taken in CDCR custody. (See Doc. 1 at 14-16; see also Doc. 2 12 2.) Additionally, Petitioner allegedly filed an appeal requesting the materials, although 13 is undocumented. (Jd.) Once he received his legal materials on June 8, 2020, Petitioner 14 immediately filed the Petition and a Motion to File Late Habeas Petition on June 16, 2020. 15 |}(Docs. 1, 2.) These filings, constructively filed eight days after receiving his legal 16 || materials, further evidence that Petitioner diligently pursued his rights. See Dickershaid, 17 ||648 F. App’x at 620-21.

18 _ Respondent also argues that Petitioner’s failure to “make some effort to pursue their 19 rights over the ten-month period” or 286 days before losing access to his legal documents 20 illustrates his lack of diligence. (See Doc. 7 at 9, 11-12.) This includes the ninety days to 21 || seek review from the United States Supreme Court and the 196 days that accrued from the 22 ||start of the one-year statute-of-limitations period which preceded the date Petitioner went 23 out-to-court. (U/d.) But Respondent’s argument is unavailing and has been unequivocally 24 rejected by the Ninth Circuit. Grant v. Swarthout, 862 F.3d 914, 921 (9th Cir. 2017). As 25 || stated in Grant, “[n]o opinion of th[e Ninth Circuit] or of the Supreme Court has ever 26 upheld the denial of equitable tolling to a prisoner on the ground that he had not used the 27 ||portion of the one-year statute of limitations period that preceded the event justifying 28 || 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, 2 ||habeas petitions during a portion of the pre-extraordinary circumstances period might 3 || prevent the petitioner from receiving equitable relief.” Id. And Respondent’s use of the 4 ||ninety days to seek review before judgment was final and before the one-year statute of 5 ||limitations period began to accrue is inappropriate and contrary to the full 365 days 6 ||afforded to Petitioner by Congress. See id. at 919-921. Grant specifically noted the 7 Congressional intent behind equitable tolling as follows: 8 Congress has determined that state prisoners are entitled to one full year from the 9 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 10 is an available remedy to ensure that prisoners are afforded their full statutory 1 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 12 fit... To use equitable principles to in effect shorten the already-short statutory period available to all prisoners by requiring them to anticipate extraordinary 13 . . circumstances and to perform the necessary legal work in a shorter period of time 14 than the statute requires would deprive them of the availability of the full statute-of- 15 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. 17 at 920. . 18 Petitioner exercised diligence in requesting his legal materials, immediately filed the 19 || Petition when his materials where returned, and is entitled to the full year afforded to him 20 || by Congress. See Espinoza-Matthews, 432 F.3d at 1027-28; see also Grant, 862 F.3d at 21 ||919-21. Therefore, the undersigned finds Petitioner exercised reasonable diligence under 22 || the circumstances. See Espinoza-Matthews, 432 F.3d at 1027-28. 23 2. Extraordinary Circumstances Prevented Petitioner from Timely Filing the Petition 24 — 25 Here, extraordinary circumstances prevented Petitioner from timely filing the 26 Petition. Respondent is correct that Petitioner possessed his legal materials for nearly ten 27 |}months or 286 days from the date the California Supreme Court denied review to the date 28 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- 2 at 8-9.) This is comprised of the 169 days Petitioner, was without his legal materials 3 || during the time the one-year statute of limitations period was accruing and the. 152 days 4 || after the deadline to file had passed when his files were returned. (See Doc. 1 at 14; see 5 Doc. 7-1 at 8-9.) As Respondent concedes, Petitioner followed standard prison policy 6 inventorying his property while out-to-court and it was prison policy to have his 7 ||property returned when he returned from out-to-court status. (Doc. 7-1 at 10.) It is 8 ||“unrealistic” to expect Petitioner to prepare and file a “meaningful” petition on his own 9 || within the statutory period “without access to his legal file.” See Ramirez v. Yates, 571 10 || F.3d 993, 998 (9th Cir. 2009).

11 Respondent is correct that Petitioner did not point to a specific document necessary 12 ||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 14 extraordinary circumstance... .” Ramirez, 571 F.3d at 998; Espinoza-Matthews, 432 F.3d 15 1027-28; see Lott v. Mueller, 304 F.3d 918, 925-26 (9th Cir. 2002) (holding that an 16 evidentiary hearing was required to determine if denying petitioner access to legal files for 17 || eighty-two days warranted equitable tolling). 18: Similar to Espinoza-Matthews, as outlined above, Petitioner did not have access to 19 ||his legal materials for 169 days of his one-year statute of limitations period and 152 days 20 || after the deadline to file had passed. (See Doc. 1 at 14); see Espinoza-Matthews, 432 F.3d 21 1027-28; see supra Part IV.B.1. at pp. 9-10. Beginning just two weeks after his property 22 || was taken, Petitioner made at least one documented request for his property and a second 23 undocumented reference to an appeal requesting his property. (See Doc. 1 at 15; Doe. 2 at 24 ||2.) Petitioner was told both that CDCR officials intended to send his property to his new 25 || prison and, in a separate response, that his property would remain at PBSP. (Doc. 1 at 15- 26 ||16; Doc. 2 at 2.) Petitioner received his property 152 days after the statute of limitations 27 || period expired, but he filed the Petition eight days after the materials were returned to him. 28 ||(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- 2 || day period he was without his legal materials. See Espinoza-Matthews, 432 F.3d at 1028. 3 In sum, Petitioner acted with reasonable diligence under the circumstances when he 4 ||made his request for his legal materials and immediately filed the Petition and Motion to 5 || File Late Habeas Petition upon receipt of those materials. See Holland, 560 U.S. at 653; 6 || see also Dickershaid, 648 F. App’x at 620-21. And Petitioner’s complete deprivation of 7 legal materials constitutes extraordinary circumstances out of his control preventing 8 timely filing. Ramirez, 571 F.3d at 998; Espinoza-Matthews, 432 F.3d at 1027-28. As 9 ||such, equitable tolling is appropriate. . 10 Because Petitioner was denied access to his legal materials for 321 days, the Court 11 ||respectfully recommends that the statute of limitations be tolled for that entire period— 12 || from July 23, 2019 to June 8, 2020. Applying equitable tolling, Petitioner had until on or 13 about April 26, 2021 to timely file his Petition. Given that the Petition was filed on June 14 |} 16, 2020, the Petition is timely. 15 ‘V. CONCLUSION 16 For the reasons given, the Court respectfully recommends Respondent’s Motion to 17 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 19 || assigned to this case, under 28 U.S.C. § 636(b)(1), and Civil Local Rules 72.1(d) and HC.2 20 || of the United States District Court for the Southern District of California. Any party may 21 || file written objections with the Court and serve a copy on all parties on or before March 22 ||18, 2021. The document should be captioned “Objections to Report and 23 ||Recommendation.” Any reply to the Objections shall be served and filed on or before 24 April 15, 2021. The parties are advised that failure to file objections within the specific 25 ||time may waive the right to appeal the District Court’s Order. Martinez v. Yist, 951 F.2d 26 || 1153, 1157 (9th Cir. 1991). 27 . . □ 28 13

1 _IT IS SO ORDERED. 2 ||DATE: March □□ 2021

4 ON. RUTH B EZ MONTENEGRO UNITED STATES MAGISTRATE JUDGE 5 6 9 10

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