(DP) Contreras v. Davis

Opinion

1 2

6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 JORGE CONTRERAS, Case No. 1:19-cv-01523-AWI-SAB

12 Petitioner, DEATH PENALTY CASE

13 v. FINDINGS AND RECOMMENDATION ON PETITIONER’S MOTION FOR 14 RONALD DAVIS, Warden of California State EQUITABLE TOLLING Prison at San Quentin, 15 (ECF No. 49) Respondent. 16 OBJECTIONS DUE WITHIN THIRTY (30) DAYS 17

18 19 Before the Court is a motion filed on July 23, 2020, by Petitioner Jorge Contreras, through 20 counsel, to equitably toll the limitations deadline under 28 U.S.C. § 2244 for the filing of his 21 federal habeas petition in this action.1 The motion requests that the current as tolled petition filing 22 deadline of December 9, 2020 be further equitably tolled to June 9, 2021 on grounds of 23 impediments arising from the COVID-19 pandemic. 24 On August 17, 2020, Respondent Warden Ronald Davis, through counsel, filed his 25 opposition to the equitable tolling motion. Petitioner filed a reply in support of the equitable 26 tolling motion on August 22, 2020. The matter was taken under submission.2

27 1 On August 5, 2020, Petitioner filed a supplement to the motion. 1 Upon consideration of the parties’ filings, the record, and controlling legal authority, the 2 Court makes the following findings and recommendation. 3 I. 4 BACKGROUND AND PROCEDURAL HISTORY 5 On December 11, 1996, Petitioner was convicted of first degree felony murder and 6 robbery, with the special circumstance of murder in the commission of the robbery, and sentenced 7 to death. See Tulare County Superior Court Case No. 37619. 8 On June 17, 2008, Petitioner filed his automatic appeal. People v. George Lopez 9 Contreras, California Supreme Court Case No. S058019. 10 On February 6, 2012, Petitioner filed his state habeas petition. In re Jorge Contreras on 11 Habeas Corpus, California Supreme Court Case No. S199915. 12 On December 12, 2013, the California Supreme Court affirmed Petitioner’s judgment of 13 conviction and sentence on automatic appeal. People v. George Lopez Contreras, 58 Cal. 4th 123 14 (2013). 15 On October 9, 2019, the California Supreme Court summarily denied on the merits 16 Petitioner’s state habeas petition. In re Jorge Contreras on Habeas Corpus, Case No. S199915. 17 On October 28, 2019, Petitioner commenced this federal habeas proceeding pursuant to 28 18 U.S.C. § 2254 by filing pro se requests for the granting of in forma pauperis status, and 19 appointment of counsel. 20 On November 5, 2019, the Court granted Petitioner’s requests to proceed in forma pauperis 21 and for appointment of counsel. 22 On November 7, 2019, Deputy Attorney General Christina Hitomi Simpson filed her notice 23 of appearance on behalf of Respondent. 24 On December 9, 2019, the Court adopted the recommendation of the Selection Board for 25 the Eastern District of California and appointed Brian M. Pomerantz, Esq. and Ken Murray, Esq. 26 to represent Petitioner in this federal habeas proceeding.3 27 1 On December 11, 2019, the Court set the initial case management conference, and directed 2 counsel to meet and confer regarding initial case scheduling and to file a joint statement. 3 On January 22, 2020, the parties filed their joint statement, which included: (i) their 4 agreement that Respondent would not assert the 28 U.S.C. § 2244(d)(1) limitations deadline for the 5 filing of the federal habeas petition until December 9, 2020, i.e. one year and one day after 6 appointment of Petitioner’s counsel. 7 On February 26, 2020, following its review of the parties’ joint statement, the Court tolled 8 the 28 U.S.C. § 2244(d)(1) petition filing deadline to December 9, 2020, pursuant to the parties’ 9 stipulation.4 10 On February 14, 2020, Respondent lodged the record.5 11 II. 12 LEGAL STANDARD 13 “A habeas petitioner is entitled to equitable tolling only if he shows (1) that he has been 14 pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and 15 prevented timely filing.” Fue v. Biter, 842 F.3d 650, 653 (9th Cir. 2016) (en banc) (quoting 16 Holland v. Florida, 560 U.S. 631, 649 (2010)); accord Menominee Indian Tribe of Wis. v. United 17 States, __ U.S.__, 136 S. Ct. 750, 755-56 (2016); Espinoza-Matthews v. California, 432 F.3d 1021, 18 1026, n.5 (9th Cir. 2005) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see also 19 Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1288-89 (9th Cir. 1997) (approving 20 prospective equitable tolling of the one year statute of limitations under 28 U.S.C. § 2244(d) where 21 “extraordinary circumstances” beyond a prisoner’s control make it impossible to file a petition on 22 time), partially overruled on other grounds by Calderon v. United States Dist. Ct. (Kelly V), 163 23 F.3d 530, 540 (9th Cir. 1998), abrogated on other grounds by Woodford v. Garceau, 538 U.S. 202 24 (2003). 25 In addition, there must be a causal link between the extraordinary circumstance and the 26 inability to timely file the petition. Sossa v. Diaz, 729 F.3d 1225, 1229 (9th Cir. 2013)

27 4 See ECF Nos. 12, 18, 27, 31. 1 (“[E]quitable tolling is available only when extraordinary circumstances beyond a prisoner’s 2 control make it impossible to file a petition on time and the extraordinary circumstances were the 3 cause of the prisoner’s untimeliness.”). A literal impossibility to file, however, is not required. 4 Grant v. Swarthout, 862 F.3d 914, 918 (9th Cir. 2017) (stating that equitable tolling is appropriate 5 even where “it would have technically been possible for a prisoner to file a petition,” so long as the 6 prisoner “would have likely been unable to do so.”). 7 Equitable tolling is limited to rare and exceptional circumstances and typically applied 8 sparingly. Cadet v. State of Florida Department of Corrections, 853 F.3d 1216, 1221 (11th Cir. 9 2017). It may be appropriate where external forces, rather than a petitioner’s lack of diligence, 10 account for the failure to file a timely claim. Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999); 11 see also Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir. 2011) (the effort required is what a 12 reasonable person might be expected to deliver under his or her particular circumstances). Among 13 the factors that courts have considered relevant in deciding whether equitable tolling of the 14 limitations period is appropriate are the complexity of the legal proceedings and whether the state 15 would suffer prejudice from the delay. Hoyos v. Wong, Case No. 09-CV-0388 L (NLS), 2010 WL 16 596443, at **4, 5 (S.D. Cal. Feb. 16, 2010). 17 This “exercise of a court’s equity powers must be made on a case-by-case basis” and it 18 “enables courts to meet new situations that demand equitable intervention, and to accord all the 19 relief necessary to correct particular injustices.” Holland, 560 U.S., at 649–50. The petitioner 20 “bears the burden of showing that this extraordinary exclusion should apply to him.” Miranda v. 21 Castro, 292 F.3d 1063, 1065 (9th Cir. 2002); accord Milam v. Harrington, 953 F.3d 1128, 1132 22 (9th Cir. 2020). 23 III. 24 ARGUMENT 25 Petitioner supports his further tolling motion by pointing to general impacts from the 26 COVID-19 pandemic including: (i) continuing states of emergency at national, state and local 27 levels and within this Court, (ii) social distancing and travel restrictions, (iii) stay-at-home orders, 1 responsibilities. (ECF No. 49, at 2-17; see also ECF No. 49-2, at 3-4; ECF No. 49-3, 49-4, 49-5.) 2 Petitioner also points to case specific impacts from the ongoing COVID-19 pandemic that 3 have and will impede: (i) core and non-core record assembly and review, (ii) review of evidence, 4 (iii) the mitigation investigation, and (iv) claim development and related discovery, travel, in- 5 person meetings and interviews with Petitioner, experts, and lay witnesses, and rendition of expert 6 services. (ECF No. 49, at 7-17; ECF No. 49-2, at 2-5.) At bottom, Petitioner argues the defense 7 team “will continue to be unable to provide effective representation to their client until there is a 8 vaccine available or the transmission rate of COVID-19 dramatically drops.” (ECF No. 49, at 15, 9 citing ECF No. 49-3, at 2.) 10 Respondent opposes COVID-19 based anticipatory equitable tolling, arguing that the 11 motion is premature and should be denied without prejudice. (ECF No. 52, at 2, 4.) Respondent 12 points to the recent Ninth Circuit decision in Smith v. Davis, 953 F.3d 582 (9th Cir. 2020) (en 13 banc) as authority for the proposition that equitable tolling of § 2244’s limitations period is 14 available only retrospectively, i.e. after the filing of an untimely petition. Respondent further 15 argues that “[i]f [Petitioner] cannot file[] a petition that includes all of his intended claims by 16 December 9, 2020, then on or before that date, he could file a ‘protective petition’ that includes the 17 claims that he has fully developed, thus ensuring that those claims are timely.” (ECF No. 52, at 3.) 18 Afterward, according to Respondent’s counsel, Petitioner “could move [to] amend the petition 19 with any additional claims and, [at] the same time, seek equitable tolling for those claims. See 28 20 U.S.C. § 2242; Fed. R. Civ. P. 15(a).” (Id.) 21 Petitioner replies that the holding in Smith is not irreconcilable with Beeler; that Smith 22 does not impose a blanket ban on prospective equitable tolling; and that the COVID-19 pandemic 23 continues to be an extraordinary circumstance that has already prevented the timely filing of a 24 complete federal habeas petition notwithstanding his counsels’ exercise of reasonable diligence. 25 (ECF No. 53, at 5-13.) Petitioner replies that timely filing of a shell petition in lieu of prospective 26 equitable tolling, the approach espoused by Respondent, would deny Petitioner a constitutionally 27 adequate federal habeas petition and needlessly consume scarce judicial resources necessary to 1 replies that notwithstanding continuing diligence, the extraordinary circumstances of the COVID- 2 19 pandemic render him presently unable to file a complete federal habeas petition by December 9, 3 2020. (ECF No. 53, at 15.) 4 IV. 5 ANALYSIS 6 The undersigned finds that equitable tolling of the AEDPA6 limitations deadline is 7 available prospectively, and that Petitioner is entitled to further equitable tolling to June 9, 2021, 8 based upon his ongoing reasonable diligence and the impact of the present extraordinary 9 circumstances of the continuing COVID-19 pandemic on his case. The reasons for the Court’s 10 findings are explained below. 11 A. Availability of Prospective Equitable Tolling 12 This Court has rejected Respondent’s identical argument that “the recent decision of the 13 Ninth Circuit in Smith effectively eliminates prospective equitable tolling of the AEDPA statute of 14 limitations in all cases.” See Cowan v. Davis, No. 1:19-CV-00745-DAD, 2020 WL 4698968, at 15 *3 (E.D. Cal. Aug. 13, 2020); Brown v. Davis, No. 1:19-CV-01796, 2020 WL 5069654, at * 5 16 (E.D. Cal. August 27, 2020). The Cowan Court surveyed the legal authorities, stating that:

17 The Supreme Court has not held that equitable tolling of the 28 U.S.C. § 2244 deadline is unavailable prior to filing of an untimely petition. Moreover, the 18 Ninth Circuit has long countenanced prospective equitable tolling. See Beeler, 128 F.3d at 1285, 1289 (finding no basis for upsetting the district court’s decision 19 to grant the [P]etitioner’s request to prospectively equitably toll the AEDPA statute of limitations and extend the filing date for his federal habeas petition due 20 to a substitution of habeas counsel over which, [P]etitioner had no control); accord Hargrove v. Brigano, 300 F.3d 717, 721 (6th Cir. 2002) (“[W]e find that 21 prospectively tolling § 2244(d)(1)’s one year limitation period was reasonable in this case.”) 22 District judges of this court have, of course, long followed Beeler and therefore 23 authorized prospective equitable tolling. See e.g., Williams v. Chappell, No. 1:12-CV-01344 LJO, 2013 WL 3863942, at **4-5 (E.D. Cal. July 24, 2013) 24 (“Prospective equitable tolling has been practiced in California federal cases since [Beeler].”) (citing cases); Kennedy v. Warden, San Quentin State Prison, No. 25 2:13-CV-02041 LKK KJ, 2014 WL 1513371, at *8 (E.D. Cal. Apr. 16, 2014) (recommending pre-petition tolling, noting that “[P]etitioner has shown a number 26 of courts in this circuit have found equitable tolling appropriate pre-petition. Respondent cites no authority to support his position to the contrary.”), findings 27 1 and recommendations adopted at ECF No. 35 (E.D. Cal. Jun. 17, 2014); Bunyard v. Davis, No. 2:15-cv-01790 WBS AC DP, 2016 WL 128429, at *5 (E.D. Cal. 2 Jan. 12, 2016) (“[T]he court concludes that the 68-day delay in appointment of counsel in this case, considered in light of the age and complexity of the case 3 (including the fact of the penalty retrial and the size of the record), constitutes an exceptional circumstance outside [P]etitioner’s control that prevents him from 4 filing within the one-year period.”); Whalen v. Warden, California State Prison at San Quentin, No. 1:14-cv-01865-LJO-SAB, 2015 WL 5359833, at **4-6 (E.D. 5 Cal. Sept. 14, 2015) (“Petitioner’s request for assistance from counsel was delayed the noted 82 days through no fault of his own. For this reason and those 6 discussed below, he was effectively unable to prepare the petition during the period of delay,” and also citing the need to develop and present additional 7 claims, the fact that the record was incomplete and voluminous, that the issues were complex, and the lack of demonstrated prejudice to the respondent). 8 Other federal district courts in California have relied upon the Ninth Circuit’s 9 holding in Beeler in granting prospective equitable tolling of the AEDPA limitations period. See e.g. Tully v. Davis, No. 18-CV-04763-EMC, 2019 WL 10 1676080, at *3 (N.D. Cal. April 17, 2019) (the lack of appointed counsel for 85 days warranted tolling, noting the volume of the record, the complex nature of 11 capital habeas litigation, and respondent’s waiver of the statute of limitations for the requested period of tolling); Hoyos, 2010 WL 596443, at *6 (217 day delay in 12 appointment of counsel warranted a period of tolling, concluding that “just over six months of equitable tolling will allow counsel an opportunity to complete 13 record review, investigation, a mental health evaluation of [P]etitioner, and file the habeas petition.”); cf. Weaver v. Davis, No. 18-CV-2888 BTM (LL), 2019 14 WL 2743969, at *3 (S.D. Cal. July 1, 2019) (denying without prejudice pre- petition equitable tolling where [P]etitioner failed to show extraordinary 15 circumstances preventing the timely filing of his federal petition).

16 In short, under Beeler, the law of the Ninth Circuit has long been that prospective equitable tolling of the AEDPA statute of limitations is appropriate in capital 17 habeas cases where a fact specific showing justifying such equitable tolling has been made. In Smith, a non-capital federal habeas action, the question of 18 prospective tolling of the AEDPA statute of limitation was not even before the court. Rather, in that case the [P]etitioner had filed his federal petition two 19 months after the expiration of the deadline for seeking federal habeas relief. Smith, 953 F3d at 587. The Ninth Circuit, sitting en banc, rejected the 20 [P]etitioner’s retrospective “stop-clock” argument (i.e. that the limitations period was tolled during the two months delay in providing him with the trial court 21 record), because the [P]etitioner could not show he had exercised diligence during the ten months thereafter that he otherwise had to prepare and file his federal 22 petition. n.3 The court in that case found the [P]etitioner had simply failed to show that he exercised the diligence required for equitable tolling under Holland 23 before, during, and after he had obtained the state court record. 953 F.3d at 601- 02. In doing so, the Ninth Circuit merely held that the length of any equitable 24 tolling cannot be mechanically determined and that the existence of extraordinary circumstances does not automatically result in equitable tolling absent a showing 25 of the exercise of diligence through the entire time period. Id. at 601. That holding does not prohibit prospective equitable tolling of the AEDPA statute of 26 limitations based upon extraordinary circumstances that have already taken place and had their impact (i.e. the COVID-19 pandemic), where a finding has been 27 made by the court that those ongoing circumstances make the timely filing of a complete federal habeas petition unlikely if not impossible and where petitioner’s 1 diligence.

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3 n.3 The “stop-clock” approach extends the limitations period by the duration of the impediment to filing the petition, regardless of whether petitioner was 4 reasonably diligent after the impediment was removed. See Smith, 953 F.3d, at 586. 5 -----------------------------------END FOOTNOTE-------------------------------------- 6 7 Cowan, 2020 WL 4698968, at **3-4. 8 The Court in Cowan rejected respondent’s argument that Smith implicitly overruled Beeler, 9 stating that:

10 Of course, the Ninth Circuit did not address this issue [of prospective equitable tolling] in Smith because it was clearly not even before the court in that case. n.4. 11 That decision can’t be interpreted as deciding a question it didn’t address. Moreover, the decision in Beeler remains binding Ninth Circuit precedent with 12 respect to the court’s authority to grant prospective equitable tolling of the AEDPA statute limitations where, as here, it is supported by an appropriate 13 showing. The Ninth Circuit in Smith certainly did not expressly overrule Beeler; indeed, it did not even mention the decision in Beeler. In Smith, the court 14 analyzed the Holland factors retrospectively on facts where an untimely federal petition had been filed and the impeding extraordinary circumstance abated long 15 before the AEDPA limitations period had expired. See Smith, 953 F.3d at 589- 91, 598-600. In Beeler, the court analyzed the Holland factors prospectively on 16 facts where the petitioner sought pre-petition tolling in the face of an impediment that was ongoing during the AEDPA limitations period. See 128 F.3d at 1289. 17 The two cases, consistent on the law and distinguishable on their facts, are not irreconcilable. See Miller v. Gammie, 335 F.3d 889, 893, 900 (9th Cir. 2003) 18 (circuit precedent is implicitly overruled where intervening higher authority undercuts the underlying theory or reasoning, such that the cases are clearly 19 irreconcilable); accord Organic Cannabis Foundation, LLC v. Comm’r., 962 F.3d 1082, 1092-93 (9th Cir. 2020); see also Close v. Sotheby’s, Inc., 894 F.3d 1061, 20 1072-73 (9th Cir. 2018) (if a court can apply prior circuit precedent without running afoul of intervening authority, it must do so). 21 -------------------------------------FOOTNOTE------------------------------------------- 22 n.4 As the court in Smith itself acknowledged, “we granted rehearing en banc to 23 resolve a conflict within our cases about the nature of the diligence required for a petitioner to be eligible for equitable tolling.” 953 F.3d, at 587. 24 -----------------------------------END FOOTNOTE-------------------------------------- 25 Of course, “overrulings by implication are disfavored, and, in the best of 26 circumstances, a [court] ought not lightly presume the implicit overruling of an established circuit precedent.” United States v. Chhien, 266 F.3d 1, 11 (1st Cir. 27 2001) (citing Stewart v. Dutra Constr. Co., 230 F.3d 461, 467 (1st Cir. 2000)); see also Cooper v. MRM Inv. Co., 367 F.3d 493, 507 (6th Cir. 2004) (“Implicit overrulings, however, are disfavored . . . . When possible, we will distinguish 1 seemingly inconsistent decisions rather than find an overruling by implication.”); Mickens v. Taylor, 240 F.3d 348, 359 (4th Cir. 2001) (“O]verruling by 2 implication is not favored.”), aff’d, 535 U.S. 162 (2002); SEIU Local 121RN v. Los Robles Reg’l Med. Ctr., No. 2:18-CV-03928-SVW-RAO, 2019 WL 1063389, 3 at *10 (C.D. Cal. Jan. 15, 2019) (“Until the Ninth Circuit affirmatively answers the question of whether prior authority was implicitly overruled by intervening 4 higher authority, the district court is constrained to apply binding Ninth Circuit precedent.”); Scheafnocker v. Comm’r of I.R.S., No. CIV S-05-2002 RRB EFB 5 PS, 2008 WL 478009, at *2 (E.D. Cal. Feb. 19, 2008) (rejecting the implicit overruling of binding precedent where the intervening higher authority did not 6 directly reach the issue considered in the prior precedent [i.e. equitable tolling in the context of a tax refund claim versus a wrongful levy claim] such that the 7 context of the analysis was different). While there may arguably be some conceivable tension between the decisions in Beeler and Smith, that is an 8 insufficient basis upon which to conclude that the former was implicitly overruled by the latter. See Aleman Gonzalez v. Barr, 955 F.3d 762, 768-69 (9th Cir. 9 2020); United States v. Walker, 953 F.3d 577, 581 (9th Cir. 2020).

10 Under respondent’s interpretation of the decision in Smith, a petitioner faced with an ongoing extraordinary circumstance impeding completion of the federal 11 petition either would need to: (i) prepare and timely file in federal court a shell (i.e. incomplete) petition, later move to amend it, and then seek relation back or 12 equitable tolling on a claim by claim basis, or (ii) file an untimely federal petition that violates case scheduling and risks dismissal and sanctions. But neither equity 13 nor the holding in Smith require that in all cases petitioner be bound to these options and the concomitant consumption of extremely scarce judicial resources. 14 Indeed, in Holland the Supreme Court recognized that flexibility is inherent in equity in order to meet new situations that demand equitable intervention. See 15 560 U.S. at 650. Moreover, the Ninth Circuit in Smith acknowledged that equity is not meant to create blanket, prospective rules, but rather to address case 16 specific circumstances. See 953 F.3d at 590. 17 Cowan, 2020 WL 4698968, at **4-5. 18 The Court’s reasoning in Cowan has equal application here. Nothing before the Court 19 provides a basis to find otherwise. 20 B. Entitlement to Prospective Equitable Tolling Due to COVID-19 21 The Court has found, on facts then before it, that the ongoing exceptional circumstances 22 arising from the COVID-19 pandemic provided a basis upon which to grant prospective equitable 23 tolling where, despite continuing reasonable diligence, present impediments of the pandemic make 24 it unlikely a proper federal habeas petition can be completed and filed prior to the requested as 25 tolled deadline. See Cowan, 2020 WL 4698968, at *6; Brown, 2020 WL 5069654, at *8. 26 The Court in Cowan noted that, “[a]t the time of this order, the courthouses of this district 27 have been closed to the public by General Order for months and will remain so for the foreseeable future, the Judicial Council of the Ninth Circuit has certified that emergency conditions existing in 1 the Eastern District of California justifying the temporary suspension of the 70–day period to bring 2 criminal defendants to trial, and that this Court’s ability to function normally has been severely 3 impaired as a result of the ongoing pandemic.”7 Nothing has changed. 4 Petitioner has pointed to present case specific impacts from the continuing COVID-19 5 pandemic that have and will impede record assembly and review, lay and expert discovery, claim 6 investigation and development, and preparation of a complete federal habeas petition, 7 notwithstanding counsel’s continuing reasonable diligence. (ECF No. 49, at 7-17; ECF No. 49-2, 8 at 2-5; ECF No. 49, at 15, citing ECF No. 49-3, at 2); see also McCleskey v. Zant, 499 U.S. 467, 9 498 (1991) (in a pre-AEDPA case, stating that “petitioner must conduct a reasonable and diligent 10 investigation aimed at including all relevant claims and grounds for relief in the first federal habeas 11 petition.”), superseded by statute as recognized in Banister v. Davis, __U.S.__, 140 S. Ct. 1698, 12 1707 (2020).8 13 Relatedly, the Court observes the amended lodging of the record in this case spans 10,820 14 pages including: the 204 page supplemental opening brief stating 10 claims including subclaims, 15 the California Supreme Court’s 68 page reasoned opinion affirming judgment of conviction and 16 sentence on automatic appeal, and the 213 page state habeas corpus petition stating 14 claims and 17 subclaims supported by 205 exhibits totaling 4109 pages. (See ECF Nos. 44-48; see also 18 McFarland v. Scott, 512 U.S. 849, 855-56 (1994) (an attorney’s assistance in preparing a capital 19 habeas petition is crucial owing to the complex nature of capital habeas proceedings and the 20

21 7 See In re Approval of the Judicial Emergency Declared in the Eastern District of California. adopted by the Judicial Council of the Ninth Circuit on April 16, 2020. 22 8 Two district courts within the Ninth Circuit have addressed requests for prospective equitable tolling based on the 23 impact of the COVID-19 pandemic following the decision in Smith and have reached different conclusions. In one of those cases, the motion for prospective equitable tolling was denied without prejudice and the petitioner was directed 24 to file a shell petition which could later be amended (i.e. the same ruling Respondent seeks here). See Fitzgerald v. Shinn, No. CV-19-5219-PHX-MTL, 2020 WL 3414700, at **4–5 (D. Ariz. June 22, 2020). In that case, the court 25 acknowledged the Ninth Circuit’s holding in Beeler but concluded, without analysis, that the decision in Smith “implicitly rejects prospective tolling in this Circuit.” 2020 WL 3414700, at *3. In contrast, another court has granted a motion for prospective equitable tolling in the wake of Smith, recognizing that “the extraordinary circumstance of 26 the COVID-19 pandemic is ongoing, and at the moment it is preventing [petitioner] from filing a timely amended petition.” Dunn v. Baca, No. 3:19-CV-00702-MMD-WGC, 2020 WL 2525772, at *2 (D. Nev. May 18, 2020). For 27 the reasons explained above, the Court concludes that the decision in Beeler remains binding precedent in this circuit and, accordingly, that prospective equitable tolling is both available and appropriate in light of the showing made by 1 seriousness of the death penalty). 2 Respondent does not address such matters. Indeed, Respondent does not argue the Holland 3 factors at all, seemingly conceding by implication that: (i) Petitioner has been reasonably diligent, 4 and (ii) the COVID-19 pandemic is an ongoing extraordinary circumstance. 5 Additionally, Respondent does not even suggest the possibility that he would suffer 6 prejudice should the requested relief be granted here. The Court finds absolutely no reason to 7 believe that Respondent will suffer prejudice from the relatively brief (six month) further delay in 8 filing of the petition sought by Petitioner’s counsel. Nothing suggests any significant impact upon 9 the ability of Respondent to oppose any challenges raised by Petitioner to his underlying 1996 10 judgment of conviction and sentence. 11 For the reasons stated, the Court finds that Petitioner has carried his burden of showing that 12 notwithstanding the continuing exercise of reasonable diligence, the present extraordinary 13 circumstances of the COVID-19 pandemic make it unlikely that a proper federal habeas petition in 14 this case can be completed and filed prior to the requested, as tolled, deadline of June 9, 2021. 15 Holland, 560 U.S., at 649–50; Miranda, 292 F.3d, at 1065; see also Grant, 862 F.3d, at 918; Rules 16 Governing § 2254 Cases, Rule 2, 28 U.S.C.A. foll. § 2254. For the same reasons, the Court finds 17 that were a motion for equitable tolling to accompany a federal habeas petition filed on June 9, 18 2021, Petitioner would carry his burden on the motion. 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / wOAOe 4:40 OAD VO LOPE POY □ VE te

1 V. 2 FINDINGS AND RECOMMENDATION 3 Accordingly, based upon the findings above, it is recommended that the motion for further 4 | equitable tolling to and including June 9, 2021 (ECF No. 49) be granted. 5 These findings and recommendation will be submitted to the United States District Judge 6 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty (30) days 7 | after the filed date of these findings and recommendation, either party may file written objections 8 | with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 9 | and Recommendation.” Any failure to file objections within the specified time may result in the 10 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing 11 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 12 B IT IS SO ORDERED. DAM Le 14 | Dated: _ September 18, 2020

Is UNITED STATES MAGISTRATE JUDGE

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