Dunn v. Baca

District Court, D. Nevada·Decided May 18, 2020·No. 3:19-cv-00702·Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 PATRICK DUNN, Case No. 3:19-cv-00702-MMD-WGC

7 Petitioner, ORDER v. 8

9 ISIDRO BACA, et al.,

10 Respondents.

11 12 I. SUMMARY 13 This is a habeas corpus action under 28 U.S.C. § 2254. Currently before the Court 14 is Petitioner Patrick Dunn’s motion for equitable tolling due to COVID-19. (ECF No. 11.) 15 Respondents have filed an opposition (ECF No. 12) and Dunn has filed a reply (ECF No. 16 14). The Court finds that under the extraordinary circumstances of the COVID-19 17 pandemic, equitable tolling for a fixed time until August 10, 2020, is warranted. Dunn also 18 has filed an unopposed motion for extension of time. (ECF No. 15.) The Court denies this 19 motion as moot because the Court is granting Dunn's motion for equitable tolling. 20 II. PROCEDURAL HISTORY 21 Dunn was convicted in state district court of second-degree murder. (ECF No. 7 at 22 2.) Under 28 U.S.C. § 2244(d)(1)(A), Dunn has one year from the date his judgment of 23 conviction became final to file a petition for a writ of habeas corpus under 28 U.S.C. 24 § 2254. The judgment became final when the time expired to petition the Supreme Court 25 of the United States for a writ of certiorari. Jimenez v. Quarterman, 555 U.S. 113, 119-20 26 (2009). See also Sup. Ct. R. 13(1). The Nevada Supreme Court decided the appeal on 27 March 2, 2015, and denied rehearing on April 29, 2015. The judgment of conviction thus 28 became final on July 28, 2015. (ECF No. 11 at 3.) 2 not count toward the one-year limit. 28 U.S.C. § 2244(d)(2). Dunn filed a state post- 3 conviction habeas corpus petition on July 27, 2015, one day before his judgment of 4 conviction became final. (ECF No. 11 at 4.) That petition thus tolled the one-year limit 5 immediately upon its start. The state district court denied the petition. Dunn appealed. The 6 Nevada Court of Appeals affirmed on April 29, 2019, and remittitur issued on May 24, 7 2019. (Id.) Statutory tolling ended, and the one-year limit effectively started running the 8 next day. 9 Dunn effectively commenced this action on November 20, 2019, when he delivered 10 his initial proper-person § 2254 petition to a prison officer for mailing to the Court. (ECF 11 No. 7 at 1; Rule 3(d), Rules Governing Section 2254 Cases in the United States District 12 Courts.) The initial petition is timely. By the Court's preliminary calculations, the one-year 13 limit of 28 U.S.C. § 2244(d)(1)(A) expires at the end of Tuesday, May 26, 2020, taking into 14 account that the deadline otherwise would have occurred on Memorial Day weekend. 15 The Court appointed the Federal Public Defender to represent Dunn. (ECF No. 10.) 16 The Court gave Dunn the opportunity to file a counseled amended petition. (Id.) The 17 deadline for filing the amended petition currently is May 11, 2020. (Id.) 18 III. DISCUSSION 19 A. THE COURT WILL GRANT PROSPECTIVE EQUITABLE TOLLING 20 Equitable tolling can be available to save an untimely petition. Holland v. Florida, 21 560 U.S. 631, 645 (2010). "[A] ‘petitioner’ is ‘entitled to equitable tolling’ only if he shows 22 ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary 23 circumstance stood in his way’ and prevented timely filing." Id. at 649 (quoting Pace v. 24 DiGuglielmo, 544 U.S. 408, 418 (2005)). 25 Prospective equitable tolling is a departure from the usual practice of the Court and 26 counsel for petitioners. The Court has been reluctant to give prospective equitable tolling 27 for unknown claims in an unseen petition. Equitable tolling, by its nature, is a retrospective 28 equitable remedy in those extraordinary circumstances when application of the statute of 2 practice of the Federal Public Defender is to quickly file a timely amended petition, 3 effectively a rough draft based upon a brief initial investigation, to which later amended 4 petitions can relate back. Counsel also usually asks for leave to further amend the petition 5 after a full investigation. The problem for counsel is even that practice now is difficult to 6 impossible. 7 The Court has little to no doubt that Dunn, represented by the Federal Public 8 Defender, is pursuing his rights diligently. The problem is the COVID-19 pandemic. Visits 9 to prison are restricted to keep the disease from spreading into the prisons. Travel to other 10 areas for investigation is difficult. Trying to interview people on potentially sensitive issues 11 while maintaining distance also is unwise. Courthouses are closed, and so obtaining 12 records is difficult to impossible. Counsel for Dunn and for Respondents are working from 13 home, as are their colleagues. The Court has received many requests for extension of 14 time from both due to technical difficulties of setting up secure remote connections to their 15 work computers, and their home computers might not be as efficient as their work 16 computers. Some people have children whose schools or day-cares have closed. The 17 parents have suddenly and unexpectedly become teachers, in addition to their normal 18 work duties. In short, the COVID-19 pandemic is an extraordinary circumstance that is 19 preventing parties from meeting deadlines established both by rules and by statutes. 20 In the past, the Ninth Circuit has allowed prospective equitable tolling, at least in 21 capital habeas corpus cases. Calderon v. U.S. District Court (Beeler), 128 F.3d 1283, 22 1289 (9th Cir. 1997), overruled on other grounds by Calderon v. U.S. District Court (Kelly), 23 163 F.3d 530 (9th Cir. 1998); accord, Hargrove v. Brigano, 300 F.3d 717 (6th Cir. 2002). 24 However, the Ninth Circuit recently has ruled that equitable tolling does not act as stop- 25 clock tolling the way that 28 U.S.C. § 2244(d)(2) does. Smith v. Davis, 953 F.3d 582 (9th 26 Cir. 2020) (en banc). If an extraordinary circumstance has prevented a petitioner from 27 timely filing a habeas corpus petition, then the petitioner must be reasonably diligent in 28 filing the petition once the extraordinary circumstance dissipates. Id. 2 Respondents did not need to work from home under less than optimal conditions, if the 3 courthouse was open, then the Court likely would hold that Smith implicitly eliminated 4 prospective equitable tolling. If a court cannot use stop-clock equitable tolling for an 5 untimely petition, then it necessarily follows that a court cannot use stop-clock prospective 6 equitable tolling. But those problems have existed for the past two months. Effectively, two 7 months of Dunn’s opportunity to prepare an amended petition have been wiped out. At the 8 time of writing this order, the State of Nevada has lessened some restrictions, but the other 9 challenges still remain.