(DP) Brown v. Davis

1

2

3

4

5

6

7 UNITED STATES DISTRICT COURT

8 EASTERN DISTRICT OF CALIFORNIA

9

10 STEVEN ALLEN BROWN, Case No. 1:19-cv-01796-DAD

11 Petitioner, DEATH PENALTY CASE

12 v. ORDER (1) GRANTING UNOPPOSED

MOTION TO FILE LATE REPLY

13 RONALD DAVIS, Warden of California State BRIEF, and (2) GRANTING

Prison at San Quentin, EQUITABLE TOLLING TO AND

14 INCLUDING JUNE 1, 2021

Respondent.

15

16

17

18 On June 11, 2020, petitioner Steven Allen Brown, through counsel, moved to equitably

19 toll the September 11, 2020 limitations deadline under 28 U.S.C. § 2244 for the filing of his

20 federal habeas petition in this action. The motion requests that the current petition filing

21 deadline of September 11, 2020 be equitably tolled to February 1, 2021 on grounds of delay in

22 the appointment of federal habeas counsel, and further equitably tolled to June 1, 2021 on

23 grounds of impediments arising as a result of the COVID-19 pandemic.

24 On July 13, 2020, respondent Warden Ronald Davis, through counsel, filed his

25 opposition to equitable tolling beyond February 1, 2021. Petitioner filed a reply in support of

26 the equitable tolling motion on July 28, 2020, and therein moved, unopposed, to allow the late

27 filing of the reply.

/////

1 The court having considered the parties’ filings and the record finds the pending

2 motions amenable to decision without a hearing.1

3 For the reasons explained below, the court will allow the filing of petitioner’s untimely

4 reply, and will grant petitioner’s motion for equitable tolling of the applicable statute of

5 limitations to and including June 1, 2021.

6 I. BACKGROUND

7 On January 5, 1996, petitioner was convicted of first degree murder, sodomy, and forcible

8 lewd acts on a minor under 14, with the special circumstance of murder in the commission of the

9 sexual offenses, and sentenced to death. See Tulare County Superior Court Case No. 32842.

10 On April 6, 2010, petitioner filed his automatic appeal. People v. Steven Allen Brown,

11 Case No. S052374.

12 On February 27, 2012, petitioner filed his state habeas petition. In re Steven Allen

13 Brown on Habeas Corpus, Case No. S200366.

14 On June 2, 2014, the California Supreme Court affirmed petitioner’s judgment of

15 conviction and sentence on automatic appeal. People v. Brown, 59 Cal. 4th 86 (2014). The

16 United States Supreme Court denied certiorari on February 23, 2015. Steven Allen Brown v.

17 California, 135 S. Ct. 1402 (2015).

18 On September 11, 2019, the California Supreme Court summarily denied petitioner’s

19 state habeas petition on the merits. Brown on H.C., Case No. S200366.

20 On December 23, 2019, petitioner commenced this federal habeas proceeding pursuant

21 to 28 U.S.C. § 2254 by filing pro se requests for the granting of in forma pauperis status,

22 appointment of counsel, and a stay of execution.

23 On January 13, 2020, the court granted petitioner’s requests to proceed in forma

24 pauperis and for appointment of counsel and denied without prejudice his request for a stay of

25 execution.

26 /////

27

1 On January 31, 2020, the court adopted the recommendation of the Selection Board for

2 the Eastern District of California and appointed Sara Cohbra, Esq. and John Mills, Esq. to

3 represent petitioner in this federal habeas proceeding.2

4 On February 4, 2020, the court set the initial case management conference for June 1,

5 2020, and directed counsel to meet and confer regarding initial case scheduling and file a joint

6 statement thereon.

7 On May 22, 2020, the parties filed a joint statement, which included: (i) their

8 agreement that respondent would not assert the 28 U.S.C. § 2244(d)(1) limitations deadline for

9 the filing of the federal habeas petition until February 1, 2021, i.e. one year and one day after

10 appointment of petitioner’s counsel, and (ii) notice of their disagreement over whether

11 petitioner is entitled to further equitable tolling of the applicable statute of limitations to June

12 1, 2021 on the grounds that impacts stemming from the ongoing COVID-19 pandemic have

13 and will prevent timely completion of the federal habeas petition to be filed in this action

14 notwithstanding the exercise of reasonable diligence on behalf of petitioner and his counsel.

15 On May 26, 2020, following its review of the parties’ joint statement, the court vacated

16 the June 1, 2020 case management conference and set a briefing schedule for petitioner’s

17 tolling motion that is now pending before the court.

18 On July 30, 2020, respondent lodged the record.

19 II. DISCUSSION

20 Petitioner has moved for leave to file one day late his reply brief in support of the

21 equitable tolling motion. (Doc. No. 18.) Petitioner argues the due date was erroneously

22 calendared by his counsel and that the error went unrecognized because of counsel’s COVID-

23 19 related childcare responsibilities. (Id.) Respondent does not oppose this request. (Id.)

24 The court finds good cause to allow the one day late filed reply brief.

25 Petitioner has also moved for equitable tolling from the statutory deadline of September

26 11, 2020 to February 1, 2021 on grounds delay in the appointment of federal habeas counsel

27

1 has and will prevent timely filing of a complete federal habeas petition, notwithstanding

2 continuing diligent efforts by the defense team, who continue to work on the matter. (Doc. No.

3 16 at 6-8.)

4 Respondent, while not conceding that “the time it takes the [c]ourt to appoint counsel

5 constitutes an extraordinary circumstance for the purpose of equitable tolling[,]” has agreed not

6 to assert the AEDPA deadline on this ground until February 1, 2021. (Doc. No. 14 at 2; Doc.

7 No. 17 at 4, n.1.)

8 “A habeas petitioner is entitled to equitable tolling only if he shows (1) that he has been

9 pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way

10 and prevented timely filing.” Fue v. Biter, 842 F.3d 650, 653 (9th Cir. 2016) (en banc)

11 (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)); accord Espinoza-Matthews v.

12 California, 432 F.3d 1021, 1026, n.5 (9th Cir. 2005) (citing Pace v. DiGuglielmo, 544 U.S.

13 408, 418 (2005)); see also Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1288-

14 89 (9th Cir. 1997) (approving prospective equitable tolling of the one year statute of limitations

15 under 28 U.S.C. § 2244(d) where “extraordinary circumstances” beyond a prisoner's control

16 make it impossible to file a petition on time), partially overruled on other grounds by Calderon

17 v. United States Dist. Ct. (Kelly V), 163 F.3d 530, 540 (9th Cir. 1998), abrogated on other

18 grounds by Woodford v. Garceau, 538 U.S. 202 (2003).

19 In addition, there must be a causal link between the extraordinary circumstance and the

20 inability to timely file the petition. Sossa v. Diaz, 729 F.3d 1225, 1229 (9th Cir. 2013)

21 (“[E]quitable tolling is available only when extraordinary circumstances beyond a prisoner’s

22 control make it impossible to file a petition on time and the extraordinary circumstances were

23 the cause of the prisoner’s untimeliness.”). A literal impossibility to file, however, is not

24 required. Grant v. Swarthout, 862 F.3d 914, 918 (9th Cir. 2017) (stating that equitable tolling

25 is appropriate even where “it would have technically been possible for a prisoner to file a

26 petition,” so long as the prisoner “would have likely been unable to do so.”).

27 Equitable tolling is limited to rare and exceptional circumstances and typically applied

1 Cir. 2017). It may be appropriate where external forces, rather than a petitioner’s lack of

2 diligence, account for the failure to file a timely claim. Miles v. Prunty, 187 F.3d 1104, 1107

3 (9th Cir. 1999); see also Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir. 2011) (the effort required

4 is what a reasonable person might be expected to deliver under his or her particular

5 circumstances). Among the factors that courts have considered relevant in deciding whether

6 equitable tolling of the limitations period is appropriate are the complexity of the legal

7 proceedings and whether the state would suffer prejudice from the delay. Hoyos v. Wong, Case

8 No. 09-CV-0388 L (NLS), 2010 WL 596443, at **4, 5 (S.D. Cal. Feb. 16, 2010).

9 This “exercise of a court’s equity powers must be made on a case-by-case basis” and it

10 “enables courts to meet new situations that demand equitable intervention, and to accord all the

11 relief necessary to correct particular injustices.” Holland, 560 U.S. at 649–50. The petitioner

12 “bears the burden of showing that this extraordinary exclusion should apply to him.” Miranda

13 v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002); accord Milam v. Harrington, 953 F.3d 1128,

14 1132 (9th Cir. 2020). Here, petitioner has satisfied that burden by establishing that the

15 extraordinary circumstances brought about by the delay in appointment of federal habeas

16 counsel render him presently unable to file a proper federal habeas petition in this action by the

17 statutory deadline of September 11, 2020.

18 An indigent capital habeas petitioner has a statutory right to counsel. 18 U.S.C. §

19 3599(a)(2). “[T]he right to appointed counsel includes a right to legal assistance in the

20 preparation of a habeas corpus application.” McFarland v. Scott, 512 U.S. 849, 855-56 (1994).

21 An attorney's assistance in preparing a capital habeas petition is crucial owing to the complex

22 nature of capital habeas proceedings and the seriousness of the death penalty. Id. In particular,

23 “the right to counsel necessarily includes a right for that counsel meaningfully to research and

24 present a defendant's habeas claims.” Id. at 858.

25 Here, any lack of diligence in commencing this proceeding and appointing counsel to

26 represent petitioner is not attributable to petitioner. The limitations period began to run on

27 September 11, 2019, when the California Supreme Court denied petitioner’s state habeas

1 delayed commencement of this proceeding by over three months, and that the process of

2 appointing counsel consumed another six weeks. (See Doc. No. 16 at 6-8; Doc. No. 17 at 4,

3 n.1); see also Dennis v. Woodford, 65 F. Supp. 2d 1093, 1097 (N.D. Cal. 1999) (the timing of

4 the appointment of counsel “[is] beyond the control of petitioner[.]”).

5 The lack of appointed counsel is an extraordinary circumstance in this case given the

6 time passed since the crime, the complexity of issues, the voluminous record, the extensive

7 required investigation, and petitioner’s possible incompetency and mental health issues. (See

8 Doc. No. 16 at 8; Doc. No. 16-2; Doc. Nos. 19-25); see also Bunyard v. Davis, No. 2:15-CV-

9 01790 WBS AC DP, 2016 WL 128429, at *3 (E.D. Cal. Jan. 12, 2016), report and

10 recommendation adopted, No. 2:15-CV-01790 WBS AC P, 2016 WL 366230 (E.D. Cal. Jan.

11 29, 2016) (the question is whether the lack of representation, in context of all the relevant

12 circumstances, prevents timely filing and warrants the court’s exercise of its equitable powers).

13 The court observes the core record lodged by respondent in this case spans 16,627 pages

14 including: the 365 page appellate opening brief stating 11 claims including subclaims, the

15 California Supreme Court’s 41 page reasoned opinion affirming the judgment of conviction

16 and sentence on automatic appeal, and the 159 page state habeas corpus petition asserting 18

17 claims and subclaims supported by 8 exhibits totaling 159 pages. (See Doc. Nos. 19-25.)

18 As in Bunyard, this case “is comparable to others in which district courts in California

19 have granted equitable tolling for delays in the appointment of counsel in light of voluminous

20 records, case complexity, and a general showing by plaintiff’s counsel of the work to be done.”

21 Bunyard, 2016 WL 128429, at *5, citing Kennedy v. Warden, No. 2:13-CV-02041 LKK KJN

22 DP, 2014 WL 1513371, at *11 (E.D. Cal. Apr. 16, 2014) (recommending tolling for 120 day

23 period between initial filing and appointment of counsel), findings and recommendations

24 adopted at Doc. No. 35 (E.D. Cal. Jun. 17, 2014); see also Dickey v. Ayers, No. 1:06-CV-

25 00357 AWI, 2006 WL 3359231, at *3 (E.D. Cal. Nov. 20, 2006) (tolling for 138 day period

26 between initial filing and appointment of counsel).

27 /////

1 As also noted, respondent does not oppose prospective equitable tolling for the delay in

2 appointment of counsel.3 Respondent seemingly concedes petitioner’s diligence and the

3 extraordinary circumstances presented by the delay in appointing federal habeas counsel, as

4 well as the absence of prejudice in tolling the statutory limitations deadline for the filing of the

5 petition to February 1, 2021.

6 Based upon these circumstances, the court concludes that petitioner is entitled to

7 equitable tolling of the statutory deadline to and including February 1, 2021.

8 Finally, petitioner has moved for further equitable tolling to June 1, 2021, on the

9 grounds that the extraordinary circumstances posed by the ongoing COVID-19 pandemic have

10 and will prevent timely filing of a complete federal petition, notwithstanding the diligent

11 efforts by the defense team, who have worked and continue to work on the matter. (Doc. No.

12 16 at 9-19.)

13 Petitioner supports his further tolling request by pointing to the devastating general

14 impacts of the COVID-19 pandemic including: (i) continuing states of emergency at national,

15 state and local levels and within this court, (ii) stay-at-home and work-from-home directives,

16 (iii) cancellation of prison visits, and (iv) remote schooling and attendant parental childcare

17 responsibilities. (Doc. No. 16 at 3, 9-19; see also Doc. Nos. 16-3, 16-4, 16-5.)

18 Petitioner also points to case specific impacts of the ongoing COVID-19 pandemic that

19 have and will impede the following tasks necessary for the filing of the federal petition in this

20 case: (i) core and non-core record assembly and review, (ii) evidence review, (iii)

21 psychosocial, criminal, mental state and mitigation investigation, (iv) claim development and

22 related discovery, travel, in-person meetings and interviews with petitioner, experts, and lay

23 witnesses, and rendition of expert services. (Doc. No. 16 at 3, 9-19; Doc. Nos. 16-2; see also

24 Doc. Nos. 18-1 at 3-4, 18-2, 18-3.) Petitioner argues these case specific impediments are

25

3 The statute of limitations is an affirmative defense that must be asserted by the government in

26

the answer. See Rule 5(b) of the Rules Governing Section 2254 Cases in the United States

27 District Courts; Randle v. Crawford, 578 F.3d 1177, 1183-87 (9th Cir. 2009), opinion amended

and superseded on denial of reh’g, 604 F.3d 1047 (9th Cir. 2010) (limitations defense not

1 exacerbated by the failure of petitioner’s trial counsel to present any mitigating evidence, and

2 the inadequate investigation conducted by petitioner’s trial and post-conviction counsel. (See

3 Doc. No. 16 at 9-19; Doc. No. 18-1 at 3-6.)

4 Respondent opposes COVID-19 based anticipatory equitable tolling, arguing that the

5 motion is premature and should be denied without prejudice. (Doc. No. 17 at 4-6.)

6 Respondent points to the recent Ninth Circuit decision in Smith v. Davis, 953 F.3d 582 (9th

7 Cir. 2020) (en banc) as authority for the proposition that equitable tolling of § 2244’s

8 limitations period is available only retrospectively, i.e. after the filing of an untimely petition.

9 Respondent further argues that “[i]f [petitioner] cannot file[] a petition that includes all of his

10 intended claims by February 1, 2021, then on or before that date, he could file a ‘protective

11 petition’ that includes the claims that he has fully developed, thus ensuring that those claims

12 are timely. Afterward, according to respondent’s counsel, petitioner “could move [to] amend

13 the petition with any additional claims and, [at] the same time, he may seek equitable tolling

14 for those claims. See 28 U.S.C. § 2242; Fed. R. Civ. P. 15(a).” (Doc. No. 17 at 6.)

15 Petitioner replies that the holding in Smith does not impose a blanket ban on

16 prospective equitable tolling, and that the COVID-19 pandemic continues to be an

17 extraordinary circumstance that has already prevented the timely filing of a complete federal

18 habeas petition, notwithstanding his counsels’ obvious exercise of reasonable diligence. (Doc.

19 No. 18-1 at 2-6.)

20 The court is unpersuaded by respondent’s argument that the recent decision of the

21 Ninth Circuit in Smith effectively eliminates prospective equitable tolling of the AEDPA

22 statute of limitations in all cases. The Supreme Court has not held that equitable tolling of the

23 28 U.S.C. § 2244 deadline is unavailable prior to filing of an untimely petition. Moreover, the

24 Ninth Circuit has long countenanced prospective equitable tolling. See Beeler, 128 F.3d at

25 1285, 1289 (finding no basis for upsetting the district court’s decision to grant the petitioner’s

26 request to prospectively equitably toll the AEDPA statute of limitations and extend the filing

27 date for his federal habeas petition due to a substitution of habeas counsel over which

1 (“[W]e find that prospectively tolling § 2244(d)(1)’s one year limitation period was reasonable

2 in this case.”)

3 District judges of this court have, of course, long followed Beeler and therefore

4 authorized prospective equitable tolling. See e.g., Williams v. Chappell, No. 1:12-CV-01344

5 LJO, 2013 WL 3863942, at **4-5 (E.D. Cal. July 24, 2013) (“Prospective equitable tolling has

6 been practiced in California federal cases since [Beeler].”) (citing cases); Kennedy, 2014 WL

7 1513371, at *8 (recommending pre-petition tolling, noting that “[P]etitioner has shown a

8 number of courts in this circuit have found equitable tolling appropriate pre-petition.

9 Respondent cites no authority to support his position to the contrary.”), findings and

10 recommendations adopted at Doc. No. 35 (E.D. Cal. Jun. 17, 2014); Bunyard, 2016 WL

11 128429, at *5 (“[T]he court concludes that the 68-day delay in appointment of counsel in this

12 case, considered in light of the age and complexity of the case [including the fact of the penalty

13 retrial and the size of the record], constitutes an exceptional circumstance outside petitioner’s

14 control that prevents him from filing within the one-year period.”); Whalen v. Warden,

15 California State Prison at San Quentin, No. 1:14-CV-01865-LJO-SAB, 2015 WL 5359833, at

16 **4-6 (E.D. Cal. Sept. 14, 2015) (“Petitioner’s request for assistance from counsel was delayed

17 the noted 82 days through no fault of his own. For this reason and those discussed below, he

18 was effectively unable to prepare the petition during the period of delay,” and also citing the

19 need to develop and present additional claims, the fact that the record was incomplete and

20 voluminous, that the issues were complex, and the lack of demonstrated prejudice to the

21 respondent).

22 Other federal district courts in California have relied upon the Ninth Circuit’s holding

23 in Beeler in granting prospective equitable tolling of the AEDPA limitations period. See e.g.

24 Tully v. Davis, No. 18-CV-04763-EMC, 2019 WL 1676080, at *3 (N.D. Cal. April 17, 2019)

25 (the lack of appointed counsel for 85 days warranted tolling, noting the volume of the record,

26 the complex nature of capital habeas litigation, and respondent’s waiver of the statute of

27 limitations for the requested period of tolling); Hoyos, 2010 WL 596443, at *6 (217 day delay

1 of equitable tolling will allow counsel an opportunity to complete record review, investigation,

2 a mental health evaluation of petitioner, and file the habeas petition.”); cf. Weaver v. Davis,

3 No. 18-CV-2888 BTM (LL), 2019 WL 2743969, at *3 (S.D. Cal. July 1, 2019) (denying

4 without prejudice pre-petition equitable tolling where petitioner failed to show extraordinary

5 circumstances preventing the timely filing of his federal petition).

6 In short, under Beeler, the law of the Ninth Circuit has long been that prospective

7 equitable tolling of the AEDPA statute of limitations is appropriate in capital habeas cases

8 where a fact specific showing justifying such equitable tolling has been made. In Smith, a non-

9 capital federal habeas action, the question of prospective tolling of the AEDPA statute of

10 limitation was not even before the court. Rather, in that case the petitioner had filed his federal

11 petition two months after the expiration of the deadline for seeking federal habeas relief.

12 Smith, 953 F3d at 587. The Ninth Circuit, sitting en banc, rejected the petitioner’s

13 retrospective “stop-clock” argument (i.e. that the limitations period was tolled during the two

14 months delay in providing him with the trial court record), because the petitioner could not

15 show he had exercised diligence during the ten months thereafter that he otherwise had to

16 prepare and file his federal petition.4 The court in that case found the petitioner had simply

17 failed to show that he exercised the diligence required for equitable tolling under Holland

18 before, during, and after he had obtained the state court record. 953 F.3d at 601-02. In doing

19 so, the Ninth Circuit merely held that the length of any equitable tolling cannot be

20 mechanically determined and that the existence of extraordinary circumstances does not

21 automatically result in equitable tolling absent a showing of the exercise of diligence through

22 the entire time period. Id. at 601. That holding does not prohibit prospective equitable tolling

23 of the AEDPA statute of limitations based upon extraordinary circumstances that have already

24 taken place and had their impact (i.e. the COVID-19 pandemic), where a finding has been

25 made by the court that those ongoing circumstances make the timely filing of a complete

26

27 4 The “stop-clock” approach extends the limitations period by the duration of the impediment

to filing the petition, regardless of whether petitioner was reasonably diligent after the

1 federal habeas petition unlikely, if not impossible, and where petitioner’s counsel has both

2 demonstrated and committed to the continued exercise of due diligence.

3 Of course, the Ninth Circuit did not address this issue in Smith because it was clearly

4 not even before the court in that case.5 That decision can’t be interpreted as deciding a

5 question it didn’t address. Moreover, the decision in Beeler remains binding Ninth Circuit

6 precedent with respect to the court’s authority to grant prospective equitable tolling of the

7 AEDPA statute limitations where, as here, it is supported by an appropriate showing. The

8 Ninth Circuit in Smith certainly did not expressly overrule Beeler; indeed, it did not even

9 mention the decision in Beeler. In Smith, the court analyzed the Holland factors

10 retrospectively on facts where an untimely federal petition had been filed and the impeding

11 extraordinary circumstance abated long before the AEDPA limitations period had expired. See

12 Smith, 953 F.3d at 589-91, 598-600. In Beeler, the court analyzed the Holland factors

13 prospectively on facts where the petitioner sought pre-petition tolling in the face of an

14 impediment that was ongoing during the AEDPA limitations period. See 128 F.3d at 1289.

15 The two cases, consistent on the law and distinguishable on their facts, are not irreconcilable.

16 See Miller v. Gammie, 335 F.3d 889, 893, 900 (9th Cir. 2003) (circuit precedent is implicitly

17 overruled where intervening higher authority undercuts the underlying theory or reasoning,

18 such that the cases are clearly irreconcilable); accord Organic Cannabis Foundation, LLC v.

19 Comm’r., 962 F.3d 1082, 1092-93 (9th Cir. 2020); see also Close v. Sotheby’s, Inc., 894 F.3d

20 1061, 1072-73 (9th Cir. 2018) (if a court can apply prior circuit precedent without running

21 afoul of intervening authority, it must do so).

22 Of course, “overrulings by implication are disfavored, and, in the best of circumstances,

23 a [court] ought not lightly presume the implicit overruling of an established circuit precedent.”

24 United States v. Chhien, 266 F.3d 1, 11 (1st Cir. 2001) (citing Stewart v. Dutra Constr. Co.,

25 230 F.3d 461, 467 (1st Cir. 2000)); see also Cooper v. MRM Inv. Co., 367 F.3d 493, 507 (6th

26

27 5 As the court in Smith itself acknowledged, “we granted rehearing en banc to resolve a

conflict within our cases about the nature of the diligence required for a petitioner to be eligible

1 Cir. 2004) (“Implicit overrulings, however, are disfavored . . . . When possible, we will

2 distinguish seemingly inconsistent decisions rather than find an overruling by implication.”);

3 Mickens v. Taylor, 240 F.3d 348, 359 (4th Cir. 2001) (“O]verruling by implication is not

4 favored.”), aff'd, 535 U.S. 162 (2002); SEIU Local 121RN v. Los Robles Reg'l Med. Ctr., No.

5 2:18-CV-03928-SVW-RAO, 2019 WL 1063389, at *10 (C.D. Cal. Jan. 15, 2019) (“Until the

6 Ninth Circuit affirmatively answers the question of whether prior authority was implicitly

7 overruled by intervening higher authority, the district court is constrained to apply binding

8 Ninth Circuit precedent.”); Scheafnocker v. Comm'r of I.R.S., No. CIV S-05-2002 RRB EFB

9 PS, 2008 WL 478009, at *2 (E.D. Cal. Feb. 19, 2008) (rejecting the implicit overruling of

10 binding precedent where the intervening higher authority did not directly reach the issue

11 considered in the prior precedent [i.e. equitable tolling in the context of a tax refund claim

12 versus a wrongful levy claim] such that the context of the analysis was different). While there

13 may arguably be some conceivable tension between the decisions in Beeler and Smith, that is

14 an insufficient basis upon which to conclude that the former was implicitly overruled by the

15 latter. See Aleman Gonzalez v. Barr, 955 F.3d 762, 768-69 (9th Cir. 2020); United States v.

16 Walker, 953 F.3d 577, 581 (9th Cir. 2020).

17 Under respondent’s interpretation of the decision in Smith, a petitioner faced with an

18 ongoing extraordinary circumstance impeding completion of the federal petition either would

19 need to: (i) prepare and timely file in federal court a shell (i.e. incomplete) petition, later move

20 to amend it, and then seek relation back or equitable tolling on a claim by claim basis, or (ii)

21 file an untimely federal petition that violates case scheduling and risks dismissal and sanctions.

22 But neither equity nor the holding in Smith require that in all cases petitioner be bound to these

23 options and the concomitant consumption of extremely scarce judicial resources. Indeed, in

24 Holland the Supreme Court recognized that flexibility is inherent in equity in order to meet

25 new situations that demand equitable intervention. See 560 U.S. at 650. Moreover, the Ninth

26 Circuit in Smith acknowledged that equity is not meant to create blanket, prospective rules, but

27 rather to address case specific circumstances. See 953 F.3d at 590.

1 The court is persuaded that, on the facts and circumstances of this case, the

2 extraordinary circumstances brought about by the COVID-19 pandemic have rendered

3 petitioner presently unable to file a complete federal habeas petition prior to the requested, as

4 tolled, filing deadline of June 1, 2021.6 Petitioner has carried the burden of showing that

5 notwithstanding the continuing exercise of reasonable diligence, the COVID-19 pandemic

6 makes it unlikely and very well impossible that a comprehensive federal habeas petition in this

7 case can be completed and filed prior to the requested, as tolled, deadline of June 1, 2021.

8 Holland, 560 U.S. at 649–50; Miranda, 292 F.3d at 1065; see also Grant, 862 F.3d at 918;

9 Rules Governing § 2254 Cases, Rule 2, 28 U.S.C.A. foll. § 2254.

10 As discussed above, petitioner has pointed to case specific impacts of the ongoing

11 COVID-19 pandemic that have and will continue to impede record assembly and review, lay

12 and expert discovery, claim investigation and development, and preparation of a complete

13 federal habeas petition. (Doc. No. 16 at 3, 9-19; Doc. No. 16-2; Doc. No. 18-1 at 3-4; Doc.

14 Nos. 18-2, 18-3.) Petitioner has pointed to facts of allegedly deficient conduct by trial and

15 appellate counsel in state court proceedings that exacerbate the COVID-19 impacts on the

16 work to be done in this action on behalf of petitioner. (See Doc. No. 16 at 9-19; Doc. No. 18-1

17 at 3-6.) Petitioner has supported his assertion that the issues and claims in this case are legally

18 and factually complex. (See Doc. No. 16 at 3, 9-19; Doc. No. 16-2; see also Doc. No. 18-1 at

19 3-6, Doc. No. 18-2, Doc. No. 18-3); McCleskey v. Zant, 499 U.S. 467, 498 (1991) (in a pre-

20 AEDPA case, stating that “petitioner must conduct a reasonable and diligent investigation

21 aimed at including all relevant claims and grounds for relief in the first federal petition.”),

22 /////

23 /////

24

25 6 In another case, based on the facts and circumstances then before the court in that case, the

undersigned recently granted prospective equitable tolling on grounds the COVID-19

26

pandemic presented an extraordinary circumstance that impeded timely filing of a complete

27 federal habeas petition, impacting petitioner’s right to the assistance of appointed habeas

counsel in preparing his federal petition. See Cowan v. Davis, No. 1:19-CV-00745-DAD, 2020

1 superseded by statute as recognized in Banister v. Davis, __U.S.__, 140 S. Ct. 1698, 1707

2 (2020).7

3 In opposing petitioner’s motion for prospective tolling here, respondent has not

4 addressed such matters. Indeed, respondent has not argued the Holland factors at all,

5 conceding by implication that: (i) petitioner has been reasonably diligent, and (ii) the COVID-

6 19 pandemic is an ongoing extraordinary circumstance. Additionally, respondent has not

7 suggested any possibility that he would suffer prejudice should the requested relief be granted

8 here. The court finds absolutely no reason to believe that respondent will suffer prejudice from

9 the relatively brief (four month) further delay in filing of the federal petition sought by

10 petitioner’s counsel in this case. Nothing suggests any impact by the granting of this motion

11 upon the ability of respondent to oppose any challenges raised by petitioner to his underlying

12 1996 judgment of conviction and sentence.

13 At the time of this order, the courthouses of this district have been closed to the public

14 by General Order for over five months and will remain so for the foreseeable future, the

15 Judicial Council of the Ninth Circuit has certified that emergency conditions existing in the

16 Eastern District of California justifying the temporary suspension of the 70–day period to bring

17 criminal defendants to trial, and this court’s ability to function normally has been severely

18

19 7 Two district courts within the Ninth Circuit have addressed requests for prospective equitable

tolling based on the impact of the COVID-19 pandemic following the decision in Smith and

20 have reached different conclusions. In one of those cases, the motion for prospective equitable

tolling was denied without prejudice and the petitioner was directed to file a shell petition

21 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

22

that case the court acknowledged the Ninth Circuit’s holding in Beeler but concluded, without

23 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

24 tolling in the wake of Smith, recognizing that “the extraordinary circumstance of the COVID-

19 pandemic is ongoing, and at the moment it is preventing [petitioner] from filing a timely

25 amended petition.” Dunn v. Baca, No. 3:19-cv-00702-MMD-WGC, 2020 WL 2525772, at *2

(D. Nev. May 18, 2020); see also Dale v. Williams, No. 3:20-cv-00031-MMD-CLB, 2020 WL

26

4904624 (D. Nev. Aug. 202, 2020) (same). For the reasons explained above, the undersigned

27 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

wOow 4:40 UV VEE URAL MMIC PI OF ee Yt tw VI A

1 | impaired as a result of the ongoing pandemic. Given these established facts and for the reasons

2 | explained above, the court concludes that petitioner has carried his burden of establishing that

3 | notwithstanding the exercise of reasonable diligence, extraordinary circumstances brought

4 | about by the COVID-19 pandemic have rendered him presently unable to file a proper federal

5 | habeas petition® in this action prior to June 1, 2021.

6 Alternatively, should the undersigned’s conclusion that Beeler remains binding

7 | precedent be later determined to be incorrect, this court affirmatively states that it can now say

8 | with certainty that in light of the circumstances noted above, were a motion for equitable

9 | tolling to accompany a federal habeas petition filed on June, 1, 2021, the court would grant it.

10 CONCLUSION

11 For the reasons stated above, the court concludes petitioner has shown his entitlement

12 | to prospective equitable tolling of the applicable statute of limitations on grounds of delay in

13 | appointment of federal habeas counsel and the impact of the COVID-19 pandemic.

14 | Accordingly, petitioner’s unopposed motion for late filing of the reply brief (Doc. No. 18) is

15 | granted. Petitioner’s motion for equitable tolling (Doc. No. 16) is granted. Petitioner shall file

16 | his federal habeas petition on or before June 1, 2021.

17 | IT IS SO ORDERED. me □

Dated: _ August 27, 2020 Yi A Load

19 UNITED STATES DISTRICT JUDGE

20

21

22

23

24

25

26

27

28 | 8 See Rules Governing § 2254 Cases, Rule 2, 28 U.S.C.A. foll. § 2254.

15