1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 LA TWON WEAVER, Case No.: 18cv2888 BTM (LL) Petitioner, 13 ORDER DEFERRING RULING ON v. 14 PETITIONER’S RENEWED RONALD DAVIS, Warden of California MOTION FOR EQUITABLE 15 State Prison at San Quentin, TOLLING OF THE DEADLINE FOR 16 Respondent. FILING THE PETITION FOR WRIT OF HABEAS CORPUS [ECF No. 34] 17 PENDING FILING OF 18 PROTECTIVE PETITION 19 Pending before the Court is Petitioner’s Renewed Motion for Equitable Tolling of 20 the Deadline for Filing the Petition for Writ of Habeas Corpus. (ECF No. 34.) Respondent 21 opposes the motion. (ECF No. 36.) For the reasons discussed below, the Court DEFERS 22 ruling on Petitioner’s Renewed Motion for Equitable Tolling [ECF No. 34] pending the 23 filing of an initial or protective petition on or before November 14, 2019 that contains the 24 claims developed and drafted to date and a list of those that remain to be developed and 25 drafted. 26 /// 27 /// 28 1 I. RELEVANT PROCEDURAL HISTORY 2 On November 14, 2018, the California Supreme Court denied a state petition for writ 3 of habeas corpus and a motion for stay pending completing of investigation. (Lodgment 4 No. 102.) On November 27, 2018, Petitioner filed a motion for reconsideration of denial 5 of stay and summary denial of habeas corpus petition claims 12, 13 and 14 without allowing 6 the presentation of relevant supporting evidence, and on December 24, 2018, filed an 7 application to supplement his petition. (Lodgment Nos. 103, 104.) On January 2, 2019, 8 the California Supreme Court denied the motion and application. (Lodgment No. 105.) 9 On December 27, 2018, Petitioner filed a request for appointment of counsel in this 10 Court and on February 5, 2019, the Court granted that request and appointed counsel 11 pursuant to the recommendation of the Selection Board. (ECF Nos. 1, 5.) On April 24, 12 2019, Petitioner filed a Motion for Equitable Tolling. (ECF No. 18.) On May 2, 2019, 13 Respondent filed an Opposition to Petitioner’s Motion for Equitable Tolling, and on May 14 13, 2019, Petitioner filed a Reply. (ECF Nos. 23, 24.) On July 1, 2019, the Court issued 15 an order denying Petitioner’s motion for equitable tolling without prejudice. (ECF No. 16 30.) On October 4, 2019, Petitioner filed a Renewed Motion for Equitable Tolling of the 17 Deadline for Filing the Petition for Writ of Habeas Corpus, accompanied by a 18 Memorandum of Points and Authorities in Support of the Renewed Motion, in which he 19 again moves the Court for an order equitably tolling the statute of limitations for the period 20 between the denial of his state habeas petition and the appointment of counsel in this Court 21 for his federal habeas proceedings. (ECF No. 34.) On October 16, 2019, Respondent filed 22 an Opposition to Petitioner’s Renewed Motion for Equitable Tolling, and on October 21, 23 2019, Petitioner filed a Reply to Opposition to Renewed Motion for Equitable Tolling. 24 (ECF Nos. 36, 38.) 25 II. DISCUSSION 26 In an order filed July 1, 2019, the Court denied without prejudice Petitioner’s April 27 24, 2019 motion for equitable tolling of the statute of limitations for the 83 days between 28 the denial of his state habeas petition and the appointment of counsel in federal court, 1 concluding that while Petitioner had demonstrated diligence in pursuing his rights, he failed 2 to demonstrate that the circumstances at issue constituted an extraordinary circumstance 3 that would prevent timely filing of his federal petition by the November 14, 2019 deadline. 4 (See ECF No. 30 at 10); see also Holland v. Florida, 560 U.S. 631, 649 (2010) (“[A] 5 ‘petitioner’ is ‘entitled to equitable tolling’ only if he shows ‘(1) that he has been pursuing 6 his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and 7 prevented timely filing.”), quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). 8 With respect to the first prong of the analysis, this Court concluded that Petitioner 9 had shown diligence, reasoning that “in view of counsel’s declaration outlining his contacts 10 with CAP and Petitioner and indicating that the delays in receipt of the signed forms from 11 Petitioner were due to jail incidents which prevented contact between counsel and 12 Petitioner but did not involve Petitioner, the Court is persuaded Petitioner has established 13 the requisite showing of diligence for the time between the denial of his state habeas 14 petition and the appointment of federal counsel.” (ECF No. 30 at 6.) The Court found that 15 Petitioner’s showing failed on the second prong. (See ECF No. 30 at 6-10.) The Court 16 reasoned that: “Petitioner correctly observes that several district courts in California have 17 granted pre-petition equitable tolling, based at least in part on delays in the appointment of 18 federal habeas counsel,” but concluded that: “Upon conducting the requisite ‘fact-specific 19 inquiry,’ a comparison of Petitioner’s situation to those in which he points out equitable 20 tolling was granted does not compel a conclusion that similar tolling is warranted in this 21 case.” (ECF No. 30 at 6-77); see Doe v. Busby, 661 F.3d 1001, 1011 (9th Cir. 2011) (“Like 22 any equitable consideration, whether a prisoner is entitled to equitable tolling under 23 AEDPA will depend on a fact-specific inquiry by the habeas court which may be guided 24 by ‘decisions made in other similar cases.’”), quoting Holland, 560 U.S. at 650. As stated 25 in the July 1, 2019 order: “While Petitioner was without federally appointed counsel for 83 26 days, the Court is not persuaded he has shown this will prevent him from timely filing the 27 federal Petition,” and “rather than presenting specific facts detailing the work currently 28 completed, that yet to be done, and the amount of time needed, the primary facts offered in 1 support of the request for equitable tolling are that ‘the case is complex and involves a 2 voluminous record.’” (ECF No. 30 at 7.) 3 Among the arguments and facts presented in support of the instant renewed motion, 4 Petitioner now provides some further details about the estimated percentage of record 5 review and drafting completed to date, that yet to be done, and asserts that “petitioner 6 cannot, even with reasonable diligence, complete the petition by the current deadline absent 7 a grant of equitable tolling.” (ECF No. 34-1 at 6.) Petitioner presently indicates that: “To 8 date, counsel have completed approximately 35% to 40% of that record review,” states that 9 they continue to confer with Petitioner, each other, and service providers, estimates that 10 they “have completed approximately 50% to 55% of the necessary research and writing” 11 and that “[i]n total, counsel believe that they are approximately half-way done in 12 completing the petition and exhibits.” (Id. at 5-6.) Petitioner also addresses the Court’s 13 observation that current counsel represented him in state post-conviction proceedings and 14 that “[g]iven their prior representation of Petitioner, counsel is presumably at least 15 somewhat familiar with the contents of both the core and non-core case materials, rather 16 than reviewing them for the first time as would counsel new to the case.” (ECF No. 30 at 17 8.) Petitioner asserts that “[s]ignificant work remains regardless of these facts,” points out 18 that the final substantive pleadings on direct appeal and state habeas were filed in 2010 and 19 2013, respectively, that “it has been many years since counsel has reviewed the ‘core and 20 non-core case materials’ as to the vast majority of petitioner’s claims,” and contends that 21 “regardless of counsel’s familiarity with the record, due diligence requires counsel to 22 review the full record anew all the same.” (ECF No.
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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 LA TWON WEAVER, Case No.: 18cv2888 BTM (LL) Petitioner, 13 ORDER DEFERRING RULING ON v. 14 PETITIONER’S RENEWED RONALD DAVIS, Warden of California MOTION FOR EQUITABLE 15 State Prison at San Quentin, TOLLING OF THE DEADLINE FOR 16 Respondent. FILING THE PETITION FOR WRIT OF HABEAS CORPUS [ECF No. 34] 17 PENDING FILING OF 18 PROTECTIVE PETITION 19 Pending before the Court is Petitioner’s Renewed Motion for Equitable Tolling of 20 the Deadline for Filing the Petition for Writ of Habeas Corpus. (ECF No. 34.) Respondent 21 opposes the motion. (ECF No. 36.) For the reasons discussed below, the Court DEFERS 22 ruling on Petitioner’s Renewed Motion for Equitable Tolling [ECF No. 34] pending the 23 filing of an initial or protective petition on or before November 14, 2019 that contains the 24 claims developed and drafted to date and a list of those that remain to be developed and 25 drafted. 26 /// 27 /// 28 1 I. RELEVANT PROCEDURAL HISTORY 2 On November 14, 2018, the California Supreme Court denied a state petition for writ 3 of habeas corpus and a motion for stay pending completing of investigation. (Lodgment 4 No. 102.) On November 27, 2018, Petitioner filed a motion for reconsideration of denial 5 of stay and summary denial of habeas corpus petition claims 12, 13 and 14 without allowing 6 the presentation of relevant supporting evidence, and on December 24, 2018, filed an 7 application to supplement his petition. (Lodgment Nos. 103, 104.) On January 2, 2019, 8 the California Supreme Court denied the motion and application. (Lodgment No. 105.) 9 On December 27, 2018, Petitioner filed a request for appointment of counsel in this 10 Court and on February 5, 2019, the Court granted that request and appointed counsel 11 pursuant to the recommendation of the Selection Board. (ECF Nos. 1, 5.) On April 24, 12 2019, Petitioner filed a Motion for Equitable Tolling. (ECF No. 18.) On May 2, 2019, 13 Respondent filed an Opposition to Petitioner’s Motion for Equitable Tolling, and on May 14 13, 2019, Petitioner filed a Reply. (ECF Nos. 23, 24.) On July 1, 2019, the Court issued 15 an order denying Petitioner’s motion for equitable tolling without prejudice. (ECF No. 16 30.) On October 4, 2019, Petitioner filed a Renewed Motion for Equitable Tolling of the 17 Deadline for Filing the Petition for Writ of Habeas Corpus, accompanied by a 18 Memorandum of Points and Authorities in Support of the Renewed Motion, in which he 19 again moves the Court for an order equitably tolling the statute of limitations for the period 20 between the denial of his state habeas petition and the appointment of counsel in this Court 21 for his federal habeas proceedings. (ECF No. 34.) On October 16, 2019, Respondent filed 22 an Opposition to Petitioner’s Renewed Motion for Equitable Tolling, and on October 21, 23 2019, Petitioner filed a Reply to Opposition to Renewed Motion for Equitable Tolling. 24 (ECF Nos. 36, 38.) 25 II. DISCUSSION 26 In an order filed July 1, 2019, the Court denied without prejudice Petitioner’s April 27 24, 2019 motion for equitable tolling of the statute of limitations for the 83 days between 28 the denial of his state habeas petition and the appointment of counsel in federal court, 1 concluding that while Petitioner had demonstrated diligence in pursuing his rights, he failed 2 to demonstrate that the circumstances at issue constituted an extraordinary circumstance 3 that would prevent timely filing of his federal petition by the November 14, 2019 deadline. 4 (See ECF No. 30 at 10); see also Holland v. Florida, 560 U.S. 631, 649 (2010) (“[A] 5 ‘petitioner’ is ‘entitled to equitable tolling’ only if he shows ‘(1) that he has been pursuing 6 his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and 7 prevented timely filing.”), quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). 8 With respect to the first prong of the analysis, this Court concluded that Petitioner 9 had shown diligence, reasoning that “in view of counsel’s declaration outlining his contacts 10 with CAP and Petitioner and indicating that the delays in receipt of the signed forms from 11 Petitioner were due to jail incidents which prevented contact between counsel and 12 Petitioner but did not involve Petitioner, the Court is persuaded Petitioner has established 13 the requisite showing of diligence for the time between the denial of his state habeas 14 petition and the appointment of federal counsel.” (ECF No. 30 at 6.) The Court found that 15 Petitioner’s showing failed on the second prong. (See ECF No. 30 at 6-10.) The Court 16 reasoned that: “Petitioner correctly observes that several district courts in California have 17 granted pre-petition equitable tolling, based at least in part on delays in the appointment of 18 federal habeas counsel,” but concluded that: “Upon conducting the requisite ‘fact-specific 19 inquiry,’ a comparison of Petitioner’s situation to those in which he points out equitable 20 tolling was granted does not compel a conclusion that similar tolling is warranted in this 21 case.” (ECF No. 30 at 6-77); see Doe v. Busby, 661 F.3d 1001, 1011 (9th Cir. 2011) (“Like 22 any equitable consideration, whether a prisoner is entitled to equitable tolling under 23 AEDPA will depend on a fact-specific inquiry by the habeas court which may be guided 24 by ‘decisions made in other similar cases.’”), quoting Holland, 560 U.S. at 650. As stated 25 in the July 1, 2019 order: “While Petitioner was without federally appointed counsel for 83 26 days, the Court is not persuaded he has shown this will prevent him from timely filing the 27 federal Petition,” and “rather than presenting specific facts detailing the work currently 28 completed, that yet to be done, and the amount of time needed, the primary facts offered in 1 support of the request for equitable tolling are that ‘the case is complex and involves a 2 voluminous record.’” (ECF No. 30 at 7.) 3 Among the arguments and facts presented in support of the instant renewed motion, 4 Petitioner now provides some further details about the estimated percentage of record 5 review and drafting completed to date, that yet to be done, and asserts that “petitioner 6 cannot, even with reasonable diligence, complete the petition by the current deadline absent 7 a grant of equitable tolling.” (ECF No. 34-1 at 6.) Petitioner presently indicates that: “To 8 date, counsel have completed approximately 35% to 40% of that record review,” states that 9 they continue to confer with Petitioner, each other, and service providers, estimates that 10 they “have completed approximately 50% to 55% of the necessary research and writing” 11 and that “[i]n total, counsel believe that they are approximately half-way done in 12 completing the petition and exhibits.” (Id. at 5-6.) Petitioner also addresses the Court’s 13 observation that current counsel represented him in state post-conviction proceedings and 14 that “[g]iven their prior representation of Petitioner, counsel is presumably at least 15 somewhat familiar with the contents of both the core and non-core case materials, rather 16 than reviewing them for the first time as would counsel new to the case.” (ECF No. 30 at 17 8.) Petitioner asserts that “[s]ignificant work remains regardless of these facts,” points out 18 that the final substantive pleadings on direct appeal and state habeas were filed in 2010 and 19 2013, respectively, that “it has been many years since counsel has reviewed the ‘core and 20 non-core case materials’ as to the vast majority of petitioner’s claims,” and contends that 21 “regardless of counsel’s familiarity with the record, due diligence requires counsel to 22 review the full record anew all the same.” (ECF No. 34-1 at 6.) 23 However, the Court continues to have reservations about this matter. This includes, 24 but is not limited to, Petitioner’s apparent presumptions that equitable tolling is warranted 25 for any amount of time between the conclusion of state proceedings and federal 26 appointment of counsel and that there is an entitlement under AEDPA to one-year after 27 appointment of counsel to file a federal capital habeas petition. Petitioner asserts in the 28 instant renewed motion, as he similarly argued in the prior motion, that “[b]y tolling the 1 statute of limitations during the time petitioner was without counsel, petitioner would then 2 be given one year to prepare and file a federal habeas corpus petition with the assistance of 3 counsel as contemplated by AEDPA.” (ECF No. 34-1 at 4); (see also ECF No. 18-1 at 5) 4 (“By tolling the statute of limitations during the time petitioner was without counsel, 5 petitioner would then be given one year to prepare and file a federal habeas corpus petition 6 with the assistance of counsel.”) As discussed in the July 1, 2019 order, the Court 7 previously cited approvingly another district court decision specifically declining to 8 endorse a similar conclusion. (See ECF No. 30 at 9-10, citing Kayer v. Schriro, No. CV 9 07-2120-PHX-DGC, 2007 WL 4150213, at *2 (D. Ariz. Nov. 19, 2007) (“The Court 10 declines to find, as a general rule, that an adequate petition requires one year of preparation 11 simply because the AEDPA provides that time period as a statute of limitations.”), and 12 Dennis v. Woodford, 65 F.Supp.2d 1093, 1097 & n.5 (N.D. Cal. 1999).) 13 Nor is the Court persuaded that the July 1, 2019 decision is “inconsistent with Ninth 14 Circuit law.” (See ECF No. 34-1 at 9-11, citing Socop-Gonzalez v. I.N.S., 272 F.3d 1176 15 (9th Cir. 2001) (en banc).) “Socop-Gonzalez rejected the approach to equitable tolling 16 wherein courts consider whether a claimant should have been expected to file his lawsuit 17 within the amount of time left in the statute of limitations, after an extraordinary 18 circumstance barring filing was lifted,” and stated that “[i]nstead, ‘the event that “tolls” the 19 statute simply stops the clock until the occurrence of a later event that permits the statute 20 to resume running.’” Gibbs v. Legrand, 767 F.3d 879, 892 (9th Cir. 2014), quoting Socop- 21 Gonzalez, 272 F.3d at 1195. Petitioner’s argument presumes that delay in appointment of 22 counsel is an extraordinary circumstance that “stops the clock” pursuant to Socop- 23 Gonzalez. Yet, as plainly stated in the July 1, 2019 order, this Court declined to find at 24 that time that Petitioner had established the delay in appointment of counsel amounted to 25 an extraordinary circumstance which prevented the timely filing of his petition. (See ECF 26 No. 30 at 10.) Unlike in Socop-Gonzalez, where the Ninth Circuit found the event in 27 question tolled the statute, this Court specifically refrained from reaching such a conclusion 28 in the July 1, 2019 order. (See id.) (finding evidentiary development or hearing on 1 diligence unnecessary because denial of motion was based on Petitioner’s failure to 2 establish that instant circumstances constituted extraordinary circumstances preventing 3 timely filing of federal habeas petition, not on any lack of diligence). 4 While the Court acknowledges that this district and other districts have on more than 5 one occasion granted equitable tolling for delays in appointment of counsel, it is far from 6 a foregone conclusion that equitable tolling is inevitably warranted for any interval 7 between the filing of a request for appointment of counsel and appointment of federal 8 counsel, or between the conclusion of state proceedings and the appointment of federal 9 counsel,1 without a showing that it constituted an extraordinary circumstance that 10 prevented timely filing. Moreover, while Petitioner continues to cite to, and rely upon, 11 another district court decision that presents a superficially similar situation involving a 12 comparable length of time elapsed prior to appointment of federal counsel, as the Court 13 explained in the July 1, 2019 order, the factual circumstances in Tully are distinguishable 14 from those presented here and in any event the Court “is not persuaded by the reasoning in 15 Tully.” (ECF No. 30 at 8.) Of particular importance to this Court’s continued concern is 16 the fact that in Tully, Respondent waived the statute of limitations defense and did not 17 oppose the motion for equitable tolling. (See ECF No. 18-2 at 3.) Again, in the instant 18 case, Respondent opposed the initial request for equitable tolling and opposes the instant 19 renewed motion. 20
21 1 To this point, the Court finds it again merits clarification, as indicated in the July 22 1, 2019 order, that contrary to Petitioner’s repeated contention otherwise, Petitioner’s 23 request for appointment of counsel was pending in this Court between December 27, 2018 and February 5, 2019, and not between November 14, 2018 and February 5, 2019. (See 24 ECF Nos. 1, 5); (contrast with ECF No. 24 at 10) (“[T]his Court should grant equitable 25 tolling for the time period from November 14, 2018 to February 5, 2019, during which petitioner’s motion for appointment of counsel was pending.”); (see also ECF No. 38 at 26 20) (“[T]his Court should grant equitable tolling for the time period from November 14, 27 2018 to February 5, 2019, during which petitioner’s motion for appointment of counsel was pending.”) 28 1 That said, while recognizing that delays in appointment of counsel may serve to 2 || obstruct timely preparation and filing of a federal capital habeas petition, the Court remains 3 || unpersuaded that a grant of equitable tolling is necessary or warranted at the present time. 4 ||Instead, the Court will defer ruling on this matter until after the filing of an initial or 5 || protective petition on or before November 14, 2019, to contain the claims developed and 6 || drafted to date and a list of those that remain to be developed and drafted. Once that is 7 || filed, the Court will be in a better position to assess this matter. If the Court granted 8 ||equitable tolling now over the Respondent’s objection and no petition was filed by 9 || November 14, 2019 and the Ninth Circuit reversed, the Petitioner may well have his federal 10 claims barred as untimely. In the absence of controlling Ninth Circuit precedent, counsel 11 ||should not be gambling with the timeliness of his client’s claims. 12 Hil. CONCLUSION AND ORDER 13 For the reasons discussed above, the Court DEFERS ruling on Petitioner’s Renewed 14 || Motion for Equitable Tolling [ECF No. 34], until after the filing of an initial or protective 15 || petition on or before November 14, 2019. The Petitioner can then explain why the delay 16 ||necessarily attendant in the appointment of counsel process should result in equitable 17 || tolling. 18 || IT ISSO ORDERED. 19 || Dated: November 4, 2019 } 20 Tied. Meth, 21 BARRY TED MOSKOWIT 79 United States District Judge 23 24 25 26 27 28