4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9
10 RICHARD ALLEN McWHORTER, Case No. 1:20-cv-00215-NONE
11 Petitioner, DEATH PENALTY CASE
12 v. ORDER GRANTING FURTHER EQUITABLE TOLLING TO AND 13 RONALD DAVIS, Warden of California State INCLUDING SEPTEMBER 27, 2021 Prison at San Quentin, 14 Respondent. 15
16 17 On March 3, 2021, counsel on behalf of petitioner Richard Allen McWhorter moved to 18 equitably toll the applicable statute of limitations deadline under 28 U.S.C. § 2244 for the 19 filing of his federal habeas petition in this action. The motion, petitioner’s second, requests 20 that the current as tolled petition filing deadline of March 31, 2021, be further equitably tolled 21 to and including September 27, 2021. 22 Respondent Warden Ronald Davis, through counsel, timely filed his response to the 23 motion on March 16, 2021. Petitioner timely filed a reply in support of the motion on March 24 18, 2021. No hearing date has been set and the court finds that none is required. The matter is 25 deemed submitted for a decision. (See Doc. No. 24.) 26 Having considered the pleadings and the record, the court will grant petitioner’s motion 27 for further equitable tolling of the applicable statute of limitations to and including September 27, 2021, for the reasons explained below. 1 BACKGROUND 2 On March 2, 1998, petitioner was convicted of two first degree murders and first degree 3 residential robbery, with the special circumstances of multiple-murder and robbery-murder, 4 and was sentenced to death. See Kern County Superior Court Case No. 65352A. 5 On August 6, 2009, the California Supreme Court affirmed petitioner’s judgment of 6 conviction and sentence on automatic appeal. People v. Richard Allen McWhorter, 47 Cal. 4th 7 318 (2009). On October 4, 2010, the United States Supreme Court denied certiorari. Richard 8 Allen McWhorter v. California, 562 U.S. 844 (2010). 9 On January 22, 2020, the California Supreme Court summarily denied petitioner’s 10 habeas corpus petition. In re McWhorter, Case No. S180404. 11 On February 11, 2020, petitioner commenced this federal habeas proceeding pursuant 12 to 28 U.S.C. § 2254. 13 On July 24, 2020, respondent lodged the record with this court. 14 On October 7, 2020, the court granted petitioner’s first motion to equitably toll the 15 applicable limitations deadline under 28 U.S.C. § 2244 from January 22, 2021 to and including 16 March 31, 2021 due to the delay in appointment of federal habeas counsel, and denied further 17 equitable tolling due to impacts of the COVID-19 pandemic without prejudice to a renewal of 18 the motion for equitable tolling on that ground at a later time based upon a more complete and 19 tangible showing. (Doc. No. 22 at 15.) 20 DISCUSSION 21 Petitioner now argues that notwithstanding continuing diligent efforts by his defense 22 team in the areas of obtaining, organizing and reviewing state and non-core records, locating 23 witness and preparing to interview them, communicating by mail with petitioner, and preparing 24 a protective federal habeas petition, the extraordinary circumstances posed by the ongoing 25 COVID-19 pandemic have and will impede the investigation, development and presentation of 26 his federal habeas petition for an additional one hundred-eighty (180) days. (Doc. No. 23 at 3- 27 10; Doc. No. 27-1 at 2-6.) He argues particularly that development of potential claims relating 1 upon mental state and mitigation evidence is being impeded by the lack of in-person access to, 2 and expert evaluation of petitioner. (Doc. No. 23 at 5-10; Doc. No. 23-1 at 1-2; Doc. No. 27 at 3 3-4; Doc. No. 27-1 at 3-5.) Petitioner points to the ongoing COVID-19 state of emergency in 4 California and the accompanying restrictions upon prison visits, access to and discovery of 5 public and private records and information, travel, in-person meetings and interviews with 6 petitioner and witnesses, and expert services retention and consultation. (See Id.) Relatedly, 7 petitioner notes that counsel in this case have not yet been vaccinated against COVID-19. 8 (Doc. No. 27-1 at 5-6.) 9 Respondent opposes further equitable tolling of the applicable limitations period. He 10 reasserts argument, previously considered and rejected by the court, that prospective equitable 11 tolling is unavailable in the Ninth Circuit following the decision in Smith v. Davis, 953 F.3d 12 582 (9th Cir. 2020) (en banc), rendering the pending motion premature. (Doc. No. 26 at 1-2.) 13 Respondent does not otherwise oppose the motion, stating that: 14 In the event that this Court again rejects Respondent’s argument, then based on the ongoing COVID-19 pandemic, the information 15 set forth in Petition’s motion (Dkt. 23), and counsel’s declaration (Dkt. 23-1), Respondent does not oppose equitable tolling for a 16 period of 180 days, commencing on March 31, 2020, with regard to any claims not already barred by the statute of limitations. See 17 28 U.S.C. § 2244. 18 (Doc. No. 26 at 2.) 19 “A habeas petitioner is entitled to equitable tolling only if he shows (1) that he has been 20 pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way 21 and prevented timely filing.” Fue v. Biter, 842 F.3d 650, 653 (9th Cir. 2016) (en banc) 22 (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)); see also Espinoza-Matthews v. 23 California, 432 F.3d 1021, 1026, n.5 (9th Cir. 2005) (citing Pace v. DiGuglielmo, 544 U.S. 24 408, 418 (2005)); Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1288-89 (9th 25 Cir. 1997) (approving prospective equitable tolling of the one year statute of limitations under 26 28 U.S.C. § 2244(d) where “extraordinary circumstances” beyond a prisoner’s control make it 27 impossible to file a petition on time), partially overruled on other grounds by Calderon v. 1 grounds by Woodford v. Garceau, 538 U.S. 202 (2003). 2 In addition, there must be a causal link between the extraordinary circumstance and the 3 petitioner’s inability to timely file the petition. Sossa v. Diaz, 729 F.3d 1225, 1229 (9th Cir. 4 2013) (“[E]quitable tolling is available only when extraordinary circumstances beyond a 5 prisoner’s control make it impossible to file a petition on time and the extraordinary 6 circumstances were the cause of the prisoner’s untimeliness.”). A literal impossibility to file, 7 however, is not required. Grant v. Swarthout, 862 F.3d 914, 918 (9th Cir. 2017) 8 (acknowledging that equitable tolling is appropriate even where “it would have technically 9 been possible for a prisoner to file a petition,” so long as the prisoner “would have likely been 10 unable to do so.”). 11 Equitable tolling is limited to rare and exceptional circumstances and typically applied 12 sparingly. Cadet v.
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4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9
10 RICHARD ALLEN McWHORTER, Case No. 1:20-cv-00215-NONE
11 Petitioner, DEATH PENALTY CASE
12 v. ORDER GRANTING FURTHER EQUITABLE TOLLING TO AND 13 RONALD DAVIS, Warden of California State INCLUDING SEPTEMBER 27, 2021 Prison at San Quentin, 14 Respondent. 15
16 17 On March 3, 2021, counsel on behalf of petitioner Richard Allen McWhorter moved to 18 equitably toll the applicable statute of limitations deadline under 28 U.S.C. § 2244 for the 19 filing of his federal habeas petition in this action. The motion, petitioner’s second, requests 20 that the current as tolled petition filing deadline of March 31, 2021, be further equitably tolled 21 to and including September 27, 2021. 22 Respondent Warden Ronald Davis, through counsel, timely filed his response to the 23 motion on March 16, 2021. Petitioner timely filed a reply in support of the motion on March 24 18, 2021. No hearing date has been set and the court finds that none is required. The matter is 25 deemed submitted for a decision. (See Doc. No. 24.) 26 Having considered the pleadings and the record, the court will grant petitioner’s motion 27 for further equitable tolling of the applicable statute of limitations to and including September 27, 2021, for the reasons explained below. 1 BACKGROUND 2 On March 2, 1998, petitioner was convicted of two first degree murders and first degree 3 residential robbery, with the special circumstances of multiple-murder and robbery-murder, 4 and was sentenced to death. See Kern County Superior Court Case No. 65352A. 5 On August 6, 2009, the California Supreme Court affirmed petitioner’s judgment of 6 conviction and sentence on automatic appeal. People v. Richard Allen McWhorter, 47 Cal. 4th 7 318 (2009). On October 4, 2010, the United States Supreme Court denied certiorari. Richard 8 Allen McWhorter v. California, 562 U.S. 844 (2010). 9 On January 22, 2020, the California Supreme Court summarily denied petitioner’s 10 habeas corpus petition. In re McWhorter, Case No. S180404. 11 On February 11, 2020, petitioner commenced this federal habeas proceeding pursuant 12 to 28 U.S.C. § 2254. 13 On July 24, 2020, respondent lodged the record with this court. 14 On October 7, 2020, the court granted petitioner’s first motion to equitably toll the 15 applicable limitations deadline under 28 U.S.C. § 2244 from January 22, 2021 to and including 16 March 31, 2021 due to the delay in appointment of federal habeas counsel, and denied further 17 equitable tolling due to impacts of the COVID-19 pandemic without prejudice to a renewal of 18 the motion for equitable tolling on that ground at a later time based upon a more complete and 19 tangible showing. (Doc. No. 22 at 15.) 20 DISCUSSION 21 Petitioner now argues that notwithstanding continuing diligent efforts by his defense 22 team in the areas of obtaining, organizing and reviewing state and non-core records, locating 23 witness and preparing to interview them, communicating by mail with petitioner, and preparing 24 a protective federal habeas petition, the extraordinary circumstances posed by the ongoing 25 COVID-19 pandemic have and will impede the investigation, development and presentation of 26 his federal habeas petition for an additional one hundred-eighty (180) days. (Doc. No. 23 at 3- 27 10; Doc. No. 27-1 at 2-6.) He argues particularly that development of potential claims relating 1 upon mental state and mitigation evidence is being impeded by the lack of in-person access to, 2 and expert evaluation of petitioner. (Doc. No. 23 at 5-10; Doc. No. 23-1 at 1-2; Doc. No. 27 at 3 3-4; Doc. No. 27-1 at 3-5.) Petitioner points to the ongoing COVID-19 state of emergency in 4 California and the accompanying restrictions upon prison visits, access to and discovery of 5 public and private records and information, travel, in-person meetings and interviews with 6 petitioner and witnesses, and expert services retention and consultation. (See Id.) Relatedly, 7 petitioner notes that counsel in this case have not yet been vaccinated against COVID-19. 8 (Doc. No. 27-1 at 5-6.) 9 Respondent opposes further equitable tolling of the applicable limitations period. He 10 reasserts argument, previously considered and rejected by the court, that prospective equitable 11 tolling is unavailable in the Ninth Circuit following the decision in Smith v. Davis, 953 F.3d 12 582 (9th Cir. 2020) (en banc), rendering the pending motion premature. (Doc. No. 26 at 1-2.) 13 Respondent does not otherwise oppose the motion, stating that: 14 In the event that this Court again rejects Respondent’s argument, then based on the ongoing COVID-19 pandemic, the information 15 set forth in Petition’s motion (Dkt. 23), and counsel’s declaration (Dkt. 23-1), Respondent does not oppose equitable tolling for a 16 period of 180 days, commencing on March 31, 2020, with regard to any claims not already barred by the statute of limitations. See 17 28 U.S.C. § 2244. 18 (Doc. No. 26 at 2.) 19 “A habeas petitioner is entitled to equitable tolling only if he shows (1) that he has been 20 pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way 21 and prevented timely filing.” Fue v. Biter, 842 F.3d 650, 653 (9th Cir. 2016) (en banc) 22 (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)); see also Espinoza-Matthews v. 23 California, 432 F.3d 1021, 1026, n.5 (9th Cir. 2005) (citing Pace v. DiGuglielmo, 544 U.S. 24 408, 418 (2005)); Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1288-89 (9th 25 Cir. 1997) (approving prospective equitable tolling of the one year statute of limitations under 26 28 U.S.C. § 2244(d) where “extraordinary circumstances” beyond a prisoner’s control make it 27 impossible to file a petition on time), partially overruled on other grounds by Calderon v. 1 grounds by Woodford v. Garceau, 538 U.S. 202 (2003). 2 In addition, there must be a causal link between the extraordinary circumstance and the 3 petitioner’s inability to timely file the petition. Sossa v. Diaz, 729 F.3d 1225, 1229 (9th Cir. 4 2013) (“[E]quitable tolling is available only when extraordinary circumstances beyond a 5 prisoner’s control make it impossible to file a petition on time and the extraordinary 6 circumstances were the cause of the prisoner’s untimeliness.”). A literal impossibility to file, 7 however, is not required. Grant v. Swarthout, 862 F.3d 914, 918 (9th Cir. 2017) 8 (acknowledging that equitable tolling is appropriate even where “it would have technically 9 been possible for a prisoner to file a petition,” so long as the prisoner “would have likely been 10 unable to do so.”). 11 Equitable tolling is limited to rare and exceptional circumstances and typically applied 12 sparingly. Cadet v. State of Florida Department of Corrections, 853 F.3d 1216, 1221 (11th 13 Cir. 2017). It may be appropriate where external forces, rather than a petitioner’s lack of 14 diligence, account for the failure to file a timely claim. Miles v. Prunty, 187 F.3d 1104, 1107 15 (9th Cir. 1999); see also Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir. 2011) (the effort required 16 is what a reasonable person might be expected to deliver under his or her particular 17 circumstances). Among the factors that courts have considered as relevant in deciding whether 18 equitable tolling of the limitations period is appropriate are the complexity of the legal 19 proceedings and whether the state would suffer prejudice from the delay. Hoyos v. Wong, Case 20 No. 09-cv-0388 L (NLS), 2010 WL 596443, at *4–5 (S.D. Cal. Feb. 16, 2010). 21 Here, the court finds that at this point in time and on the facts and evidence now before 22 it, the noted extraordinary circumstances arising from the ongoing COVID-19 pandemic make 23 the filing of a complete federal habeas petition extremely unlikely, if not impossible, for 24 another one hundred eighty (180) days, notwithstanding the existing and anticipated exercise of 25 reasonable diligence from petitioner’s defense team. 26 As was the case with respect to the prior equitable tolling motion in this case, 27 respondent does not argue the Holland factors in the context of facts before the court. Indeed, 1 diligent, and (ii) the COVID-19 pandemic is an ongoing extraordinary circumstance. 2 The court declines respondent’s invitation to reconsider its prior ruling rejecting his 3 argument that prospective equitable tolling is unavailable as a matter of law. Respondent 4 provides no legal or factual basis for reconsideration of this court’s prior order addressing and 5 rejecting that contention. Nor does respondent suggest he would suffer any prejudice should 6 the requested relief be granted. The court finds no reason to believe that respondent would 7 suffer any prejudice from the one hundred eighty (180) day delay in the filing of the petition 8 sought by petitioner’s counsel here. Nothing before the court suggests any significant impact 9 upon the ability of respondent to oppose any challenges raised by petitioner to his underlying 10 1998 judgment of conviction. 11 The court previously observed that this case involves complex issues and a voluminous 12 record suggesting that an extensive investigation is required of the defense team. (Doc. No. 22 13 at 5.) Particularly, the court observed the record lodged in this federal habeas action spans 14 12,775 pages, including the 232 page appellate opening brief asserting 14 claims for relief 15 including subclaims; the California Supreme Court’s 81 page reasoned opinion affirming 16 petitioner’s judgment of conviction and sentence as modified on automatic appeal; and the 376 17 page state habeas corpus petition (amended) asserting 17 claims for relief including subclaims 18 and supported by 79 exhibits totaling 774 pages. (Id. at 5-6.) 19 The court concludes the exceptional and extraordinary circumstances of the COVID- 19 20 pandemic continue to impede petitioner’s right to the assistance of appointed habeas counsel in 21 preparing his federal petition. 18 U.S.C. § 3599(a)(2); McFarland v. Scott, 512 U.S. 849, 855- 22 57 (1994) (given the complex nature of capital habeas proceedings and the seriousness of the 23 possible penalty, an attorney’s assistance in preparing a federal habeas corpus petition is 24 crucial and includes a right for that counsel meaningfully to research and present a defendant’s 25 claims); McCleskey v. Zant, 499 U.S. 467, 498 (1991) (in the pre-AEDPA context, stating that 26 “petitioner must conduct a reasonable and diligent investigation aimed at including all relevant 27 claims and grounds for relief in the first federal habeas petition.”), superseded by statute as 1 For all of these reasons, the court can say at this time with certainty that in light of the 2 | exceptional and extraordinary circumstances recognized above, were a motion for equitable 3 | tolling to accompany a federal habeas petition filed on September 27, 2021, the court would 4 | grant it. 5 Accordingly, petitioner’s second motion for equitable tolling (Doc. No. 23) is granted. 6 | Petitioner shall file his federal habeas petition on or before September 27, 2021. 7 | IT IS SO ORDERED. me □ 8 Jj} 2 fa. £9 Dated: _ March 24, 2021 wee re Oo oe 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28