Cail v. Holbrook

• Court: District Court, W.D. Washington
• Decided: November 29, 2022
• Docket: 2:22-cv-00031
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 TRAYVON R. CAIL, CASE NO. C22-00031-LK 11 Petitioner, ORDER GRANTING MOTION 12 v. FOR EXTENSION AND REQUESTING SUPPLEMENTAL 13 DONALD R. HOLBROOK, BRIEFING 14 Respondent. 15

16 This matter comes before the Court on the Report and Recommendation of United States 17 Magistrate Judge David W. Christel, Dkt. No. 9, the objections thereto filed by pro se Petitioner 18 Trayvon Cail, Dkt. No. 10, and Mr. Cail’s motion for an extension, Dkt. No. 11. Having reviewed 19 the Report and Recommendation, Mr. Cail’s objections and motion for an extension, and the 20 balance of the record, the Court grants the motion for an extension and requests supplemental 21 briefing as set forth below. 22 I. BACKGROUND 23 The background facts and procedural history are set forth in the Report and 24 Recommendation and are adopted here. Dkt. No. 9 at 1–2. Mr. Cail, who is currently incarcerated 1 following his state court conviction, filed a petition for writ of habeas corpus under 28 U.S.C. 2 § 2254 on December 30, 2021. Dkt. No. 3. In response to the question on the habeas form “explain 3 why the one-year statute of limitations as contained in 28 U.S.C. § 2244(d) does not bar your 4 petition,” Mr. Cail wrote, “Post-conviction review ended on December 1, 2021, so this petition is

5 timely under 28 U.S.C. section 2244(d)(2).” Dkt. No. 3 at 13. 6 A. The Report and Recommendation 7 Judge Christel recommended dismissal of the petition because it was filed after expiration 8 of the one-year statute of limitations under the federal Antiterrorism and Effective Death Penalty 9 Act of 1996 (“AEDPA”). Dkt. No. 9 at 3–5. The statute of limitations ran on May 23, 2019, one 10 year after Mr. Cail’s judgment of conviction became final. Id. at 4. Judge Christel explained that 11 although the statute of limitations is subject to statutory tolling while a properly filed personal 12 restraint petition is pending, the personal restraint petition that Mr. Cail filed on July 17, 2019 did 13 not toll the statute of limitations because it was filed after the one-year limitations period expired. 14 Id. at 4 (citing Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003)). Judge Christel explained

15 that the statute of limitations is also subject to equitable tolling, but Mr. Cail did not argue that he 16 was entitled to equitable tolling or demonstrate that extraordinary circumstances prevented him 17 from filing a timely habeas petition. Id. at 5. Because Mr. Cail’s petition was untimely, Judge 18 Christel recommended its dismissal with prejudice. Id. at 6. 19 B. Objections and Motion for an Extension 20 Mr. Cail filed objections to the Report and Recommendation. Dkt. No. 10. While he does 21 not dispute that statutory tolling does not save his petition from being untimely, he now argues 22 that he is entitled to equitable tolling. Id. at 1. Mr. Cail argues that he pursued his rights diligently 23 by “seeking counsel to represent [him] on appeal.” Id. He contends that his counsel “has a duty to

24 represent [him] in a timely manner and notify [him] of any due dates,” and that he was time-barred 1 “d[ue] to [his attorney] John Henry Browne [not] disclos[ing] information of notices in time and 2 fail[ing] to timely file a response[.] Id. (“Atto[rn]ey received all notices from the courts and failed 3 to disclose[]/inform me of notices”). 4 After filing his objections, Mr. Cail filed a motion for an extension asking the Court to

5 delay issuing a ruling on the Report and Recommendation to allow him to file a declaration from 6 Mr. Browne. Dkt. No. 11 at 1–2. The Court construes the motion as a request for an extension of 7 time to file objections (including supporting documents) to the Report and Recommendation. In 8 his motion, Mr. Cail explained that the declaration will “explain that the ___ [sic] was a result of 9 miscalculation on the part of petitioner’s former legal counsel, and should not prevent Petitioner 10 from requesting a pro se writ of habeas corpus.” Id. at 2–3. Respondent did not file a response to 11 the motion, which the Court construes as an admission that it has merit. LCR 7(b)(2). The Court 12 finds good cause to grant the unopposed motion for an extension so it can consider the declaration, 13 and it grants Mr. Cail’s motion for an extension. Dkt. No. 11. 14 The declaration Mr. Cail submitted from Mr. Browne states, “I and my law office

15 represented Petitioner Trayvon R. Cail in his sentencing and direct appeal. After the Court of 16 Appeals affirmed his conviction, we also prepared Mr. Cail’s Personal Restraint Petition (PRP).” 17 Dkt. No. 11 at 4. He further states that the attorney in his office who was primarily responsible for 18 the PRP delayed filing it to find and interview relevant parties, and as a result, the PRP was not 19 filed until July 17, 2019. Id. Mr. Browne states that his office’s delay in filing the PRP “meant that 20 the statute of limitations for seeking [federal habeas] relief had already expired on May 23, 2019,” 21 but “[o]ur office failed to recognize this fact or to notify Mr. Cail that he would be time-barred 22 from seeking habeas relief in the future.” Dkt. No. 11 at 4; id. at 5 (“The delay in our office’s filing 23 of Mr. Cail’s [PRP] prejudiced his opportunity to seek federal review as a pro se petitioner.”).

24 1 II. DISCUSSION 2 There is no dispute that unless equitable tolling applies, Mr. Cail’s habeas petition is barred 3 by AEDPA’s one-year statute of limitations. See 28 U.S.C. § 2244(d)(1). However, because 4 AEDPA’s limitations period is not a jurisdictional bar, it may be equitably tolled. Holland v.

5 Florida, 560 U.S. 631, 645 (2010). A petitioner bears the burden of showing that this 6 “extraordinary” remedy should apply to him. Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 7 2002). 8 A petitioner is entitled to equitable tolling only if he shows “(1) that he has been pursuing 9 his rights diligently, and (2) that some extraordinary circumstance stood in his way” and prevented 10 timely filing. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Included within those factors is a 11 causation component that requires courts to evaluate the petitioner’s diligence “in all time 12 periods,” including after he is “free from the extraordinary circumstance,” to determine “whether 13 the extraordinary circumstance actually did prevent timely filing.” Smith v. Davis, 953 F.3d 582, 14 595, 599 (9th Cir. 2020) (en banc). “[I]t is only when an extraordinary circumstance prevented a

15 petitioner acting with reasonable diligence from making a timely filing that equitable tolling may 16 be the proper remedy.” Id. at 600. “To be clear, this rule does not impose a rigid ‘impossibility’ 17 standard on litigants, and especially not on pro se prisoner litigants—who have already faced an 18 unusual obstacle beyond their control during the AEDPA limitation period.” Id. (cleaned up). 19 Instead of applying rigid standards or mechanical rules, courts must decide whether extraordinary 20 circumstances stood in a petitioner’s way and prevented timely filing “based on all the 21 circumstances of the case before it.” Id. 22 Attempting to demonstrate extraordinary circumstances, Mr. Cail alleges that his petition 23 should not be denied due to his former counsel’s “miscalculation.” Dkt. No. 11 at 2. Attorney

24 miscalculations leading to missed deadlines and other “garden variety” claims of negligence or 1 excusable neglect are not extraordinary circumstances warranting equitable tolling. Holland, 560 2 U.S. at 652. And although Mr. Cail filed his habeas petition pro se, his pro se status and potential 3 ignorance of the law are not extraordinary circumstances warranting equitable tolling either. See, 4 e.g., Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). However, more egregious attorney

5 misconduct or attorney abandonment may constitute extraordinary circumstances warranting 6 tolling. Holland, 560 U.S. at 651; Maples v. Thomas, 565 U.S. 266, 283 (2012); Gibbs v. Legrand, 7 767 F.3d 879, 885 (9th Cir. 2014). In this case, Mr. Cail alleges more than just a mistake by his 8 former counsel; he also alleges that his former attorney failed to notify him of due dates or to 9 disclose “notices in time.” Dkt. No. 10 at 1. Mr. Cail does not explain what those due dates and 10 notices were or how his former counsel’s alleged failures in those regards resulted in his petition 11 “being time barred.” Id. While in some circumstances the failure to receive timely case status 12 information could impact a petitioner’s ability to file a timely habeas petition, Gibbs, 767 F.3d at 13 886, the record contains insufficient information for the Court to determine whether that is the case 14 here. It is also unclear based on the record before the Court whether Mr. Browne was retained or

15 otherwise agreed to represent Mr. Cail in his federal habeas proceedings or if Mr. Cail believed 16 Mr. Browne represented him for that purpose. 17 The record is also insufficient for the Court to determine whether Mr. Cail has pursued his 18 rights diligently. “The diligence required for equitable tolling purposes is reasonable diligence, not 19 maximum feasible diligence.” Holland, 560 U.S. at 653 (cleaned up). Mr. Cail alleges that he 20 pursued his “right diligently by seeking counsel to represent [him] on appeal,” Dkt. No. 10 at 1, 21 but the Ninth Circuit has clarified that a petitioner “must show that he has been reasonably diligent 22 in pursuing his rights not only while an impediment to filing caused by an extraordinary 23 circumstance existed, but before and after as well, up to the time of filing his claim in federal

24 court.” Smith, 953 F.3d at 598–99. There is no information in the record regarding what additional 1 steps, if any, Mr. Cail took to preserve his rights other than hiring counsel to represent him in his 2 state court appeal. 3 In light of those deficiencies in the record and because Mr. Cail is proceeding pro se, the 4 Court gives him another opportunity to present facts to support his request for equitable tolling.

5 The Court requests supplemental briefing from Mr. Cail describing: 6 (1) whether Mr. Cail believed that Mr. Browne represented him for purposes of filing his federal habeas petition and if so, the basis for that belief and when he learned that Mr. 7 Browne did not represent him for that purpose;

8 (2) whether Mr. Cail expected to receive notices from Mr. Browne or his office regarding developments in his state court proceedings and if so, the basis for Mr. Cail’s expectation 9 and how and when he expected to receive such notices;

10 (3) the “notices” Mr. Cail claims Mr. Browne did not send him, Dkt. No. 10 at 1, including a description of what the notices were and when and how Mr. Cail received them; 11 (4) when and how Mr. Cail learned that the state court of appeals affirmed his conviction 12 by order dated April 23, 2018;

13 (5) when and how Mr. Cail learned of the “miscalculation on the part of [his] former legal counsel,” Dkt. No. 11 at 2; 14 (6) what Mr. Cail means specifically in his objections stating that Mr. Browne “failed to 15 file a timely response” and failed to notify him of “due dates,” Dkt. No. 10 at 1;

16 (7) the basis for Mr. Cail’s belief that he was filing his federal habeas petition on time; and

17 (8) all efforts Mr. Cail made, up to the time he filed his habeas petition in federal court, to file a timely federal habeas petition. 18 Mr. Cail’s memorandum must be no more than 30 pages in length. 19 III. CONCLUSION 20 For the foregoing reasons, the Court GRANTS Mr. Cail’s motion for an extension, Dkt. 21 No. 11, DEFERS ruling on his objections, Dkt. No. 10, and ORDERS Mr. Cail to submit, within 22 30 days of this order, supplemental briefing as described above. Respondent may, but is not 23 required to, file a response of no more than 12 pages to Mr. Cail’s supplemental memorandum 24 1 within 14 days after receiving it. 2 The Clerk is directed to send uncertified copies of this Order to Mr. Cail at his last known 3 address and to renote Petitioner’s Objections, Dkt. No. 10, for December 29, 2022. 4 Dated this 29th day of November, 2022.

5 A 6 Lauren King United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23