(DP) McWhorter v. Davis

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7 UNITED STATES DISTRICT COURT

8 EASTERN DISTRICT OF CALIFORNIA

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10 RICHARD ALLEN McWHORTER, Case No. 1:20-cv-00215-NONE

11 Petitioner, DEATH PENALTY CASE

12 v. ORDER GRANTING EQUITABLE

TOLLING TO AND INCLUDING

13 RONALD DAVIS, Warden of California State MARCH 31, 2021, and DENYING

Prison at San Quentin, WITHOUT PREJUDICE FURTHER

14 EQUITABLE TOLLING

Respondent.

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18 On July 15, 2020, petitioner Richard Allen McWhorter, moved through counsel to

19 equitably toll the limitations deadline under 28 U.S.C. § 2244(d)(1) for the filing of his petition

20 in this action from January 22, 2021 to and including March 31, 2021 due to delay in the

21 appointment of federal habeas counsel, and to further equitably toll that deadline to “one year

22 from the date that San Quentin State Prison removes restrictions on legal visiting and

23 California’s stay-at-home order, issued on March 19, 2020, is lifted[,]” due to the impacts of

24 the COVID-19 pandemic. (Doc. No. 15 at 2.)

25 On July 28, 2020, respondent Warden Ronald Davis, through counsel, filed his

26 opposition to equitable tolling beyond March 31, 2021. Petitioner filed a reply in support of

27 the motion on August 3, 2020.

1 Having considered the pleadings and the record before it, the court finds the pending

2 motion amenable to decision without a hearing.1 For the reasons explained below, the court

3 will grant equitable tolling of the applicable statute of limitations to and including March 31,

4 2021, and deny without prejudice any further equitable tolling of the limitations period at this

5 time.

6 BACKGROUND

7 On March 2, 1998, petitioner was convicted of two first degree murders and first degree

8 residential robbery, with special circumstances of multiple-murder and robbery-murder, and was

9 sentenced to death. See Kern County Superior Court Case No. 65352A.

10 On August 6, 2009, the California Supreme Court affirmed petitioner’s judgment of

11 conviction and sentence on automatic appeal. People v. Richard Allen McWhorter, 47 Cal. 4th

12 318 (2009), as modified (Oct. 14, 2009), rehearing denied (Oct. 14, 2009). The United States

13 Supreme Court denied certiorari on October 4, 2010. Richard Allen McWhorter v. California,

14 562 U.S. 844 (2010).

15 On January 22, 2020, the California Supreme Court summarily denied petitioner’s

16 habeas corpus petition. In re McWhorter, Case No. S180404.

17 On February 11, 2020, petitioner commenced this federal habeas proceeding pursuant

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

19 appointment of counsel.

20 On February 18, 2020, the court granted petitioner’s requests to proceed in forma

21 pauperis and for appointment of counsel. On that same day, Deputy Attorney General Brook

22 A. Bennigson filed notice of appearance on behalf of respondent, Warden Ronald Davis.

23 On March 31, 2020, the court adopted the recommendation of the Selection Board for

24 the Eastern District of California and appointed attorneys Soar E. Stetler and Kresta Nora Daly

25 to represent petitioner in this federal capital habeas proceeding.2

26

1 See Doc. No. 14, at 2 n.2; Doc. No. 15, at 1 n.1.

27

2 The order appointing counsel was signed by the court on March 30, 2020, and docketed by

1 On April 27, 2020, the court directed counsel to meet and confer regarding initial case

2 scheduling and to file a joint statement addressing that subject.

3 On May 26, 2020, the parties filed their joint statement, reporting an: (i) agreement

4 that the 28 U.S.C. § 2244(d)(1) limitations deadline for the filing of petitioner’s federal habeas

5 petition is January 22, 2021; (ii) agreement that respondent will not assert the 28 U.S.C. §

6 2244(d)(1) limitations deadline until March 31, 2021, i.e. one year after appointment of

7 petitioner’s counsel; and (iii) inability to agree on equitable tolling beyond March 31, 2021

8 based upon the impact of and extraordinary circumstances presented by the COVID-19

9 pandemic.

10 On June 1, 2020, following its review of the parties’ joint statement, the court set a

11 briefing schedule with respect to petitioner’s now pending motion to equitably toll the

12 limitations deadline under 28 U.S.C. § 2244(d)(1).

13 On July 24, 2020, respondent lodged the record.

14 DISCUSSION

15 Petitioner argues for equitable tolling of the statute of limitations deadline of January

16 22, 2021 to and including March 31, 2021 on grounds that the delay in appointment of federal

17 habeas counsel has and will prevent timely filing of a complete federal petition. (Doc. No. 15

18 at 1-5.) Respondent has agreed not to assert the limitations period until March 31, 2021, i.e.

19 one year following appointment of petitioner’s counsel. (Doc. No. 13 at 2; Doc. No. 19 at 2.)

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

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

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

23 (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)); accord Menominee Indian Tribe of

24 Wis. v. United States, __ U.S.__, 136 S. Ct. 750, 755-56 (2016) (quoting Holland, 560 U.S. at

25 649); Espinoza-Matthews v. California, 432 F.3d 1021, 1026, n.5 (9th Cir. 2005) (citing Pace

26 v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see also Calderon v. United States Dist. Ct.

27 (Beeler), 128 F.3d 1283, 1288-89 (9th Cir. 1997) (approving prospective equitable tolling of

1 circumstances” beyond a prisoner's control make it impossible to file a petition on time),

2 partially overruled on other grounds by Calderon v. United States Dist. Ct. (Kelly V), 163 F.3d

3 530, 540 (9th Cir. 1998), abrogated on other grounds by Woodford v. Garceau, 538 U.S. 202

4 (2003).

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

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

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

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

9 the cause of the prisoner’s untimeliness.”). A literal impossibility to file a timely petition,

10 however, is not required. Grant v. Swarthout, 862 F.3d 914, 918 (9th Cir. 2017) (stating that

11 equitable tolling is appropriate even where “it would have technically been possible for a

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

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

14 sparingly. Cadet v. State of Florida Department of Corrections, 853 F.3d 1216, 1221 (11th

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

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

17 (9th Cir. 1999); see also Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir. 2011) (the effort required

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

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

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

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

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

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

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

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

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

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

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

2 counsel prevent the timely filing of a proper federal habeas petition in this action.

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

4 3599(a)(2). “[T]he right to appointed counsel includes a right to legal assistance in the

5 preparation of a habeas corpus application.” McFarland v. Scott, 512 U.S. 849, 855-6 (1994).

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

7 nature of capital habeas proceedings and the seriousness of the death penalty. Id. at 855–56.

8 In particular, “the right to counsel necessarily includes a right for that counsel meaningfully to

9 research and present a defendant's habeas claims.” Id. at 858.

10 In this case, any lack of reasonable diligence in commencing this proceeding and

11 obtaining appointed counsel is not attributable to petitioner. (See Doc. Nos. 1, 2, 9; see also

12 Doc. No. 15 at 7.) The limitations period began to run on January 22, 2020, when the

13 California Supreme Court denied petitioner’s state habeas corpus petition. The record reflects

14 that petitioner signed documents commencing this action on February 3, 2020, and with the

15 assistance of the Office of the Federal Defender filed those documents with the court on

16 February 11, 2020. Counsel were appointed seven weeks later. (See Doc. Nos 1, 2, 9); see

17 also Dennis v. Woodford, 65 F. Supp. 2d 1093, 1097 (N.D. Cal. 1999) (the timing of the

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

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

20 time passed since the capital crime, petitioner’s possible mental impairments, the complexity

21 of issues, the voluminous record, and the extensive investigation required of the defense team.

22 (See Doc. No. 15 at 7-8); see also Bunyard v. Davis, No. 2:15-cv-01790 WBS AC DP, 2016

23 WL 128429, at *3 (E.D. Cal. Jan. 12, 2016) (the question is whether the lack of representation,

24 in the context of all the relevant circumstances, prevents timely filing and warrants the court’s

25 exercise of its equitable powers), report and recommendation adopted, No. 2:15-cv-01790

26 WBS AC P, 2016 WL 366230 (E.D. Cal. Jan. 29, 2016). Here, the court observes that the

27 record lodged in this case spans 12,775 pages, including the 232 page appellate opening brief

1 opinion affirming petitioner’s judgment of conviction and sentence as modified on automatic

2 appeal; and the 376 page state habeas corpus petition (amended) asserting 17 claims for relief

3 including subclaims and supported by 79 exhibits totaling 774 pages. (Doc. Nos. 16-18.)

4 Like Bunyard, this case “is comparable to others in which district courts in California

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

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

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

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

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

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

11 00357 AWI, 2006 WL 3359231, at *3 (E.D. Cal. Nov. 20, 2006) (tolling for the 138 day period

12 between the initial filing and the appointment of counsel).

13 As noted, in this case respondent does not oppose prospective equitable tolling for the

14 delay in appointment of federal habeas counsel.3 Respondent thus appears to concede

15 petitioner’s diligence and the extraordinary circumstances presented by the delay in

16 appointment of counsel as well as the absence of prejudice arising from tolling the statutory

17 limitations deadline to and including March 31, 2021.

18 The court concludes that petitioner has demonstrated entitlement to equitable tolling of

19 the statutory deadline to and including March 31, 2021.

20 Nest, petitioner argues for further equitable tolling of the statute of limitations to “one

21 year from the date that San Quentin State Prison removes restrictions on legal visiting and

22 California’s stay-at-home order, issued on March 19, 2020, is lifted[,]” on grounds these and

23 other extraordinary circumstances of the ongoing COVID-19 pandemic have and will prevent

24 earlier filing of a complete federal habeas petition, notwithstanding continuing diligent efforts

25

26 3 The statute of limitations is an affirmative defense that must be asserted by the government in

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), (limitations

defense not waived unless by a responsive pleading), opinion amended and superseded on

1 by his defense team, who continue to work on the matter. (Doc. No. 15 at 2, 5-9.)

2 Petitioner points to general impacts of the ongoing COVID-19 pandemic that include:

3 (i) continuing states of emergency at national, state and local levels and within this court; (ii)

4 stay-at-home and work-from-home directives; (iii) cancellation of prison visits; and (iv)

5 limitations upon record assembly, evidence review, claim investigation, discovery, travel, in-

6 person meetings and witness interviews, and expert services and consultation.

7 Petitioner suggests case specific impacts of the ongoing COVID-19 pandemic that have

8 and will continue to impede: (i) record assembly and review; (ii) claim investigation,

9 development, and discovery planning; (iii) consultation with prior counsel; (iv) identifying and

10 interviewing witnesses; (v) interviewing and evaluating petitioner; (vi) retaining experts and

11 utilizing their services; (vii) determining the scope and range of investigation into guilt and

12 penalty phase issues; and (viii) preparing and filing a comprehensive federal habeas petition.

13 (Doc. No. 15 at 2, 8-9) (citing Doc. Nos. 15-1, 15-2, 15-3, and 15-4; Doc. No. 20 at 1.)

14 Respondent opposes petitioner’s request for further “anticipatory equitable tolling” of

15 the limitations period for an “undetermined period of time,” arguing the request is premature

16 and should be denied without prejudice. (Doc. No. 19 at 2; see also id. at 1, 3-4.) Respondent

17 argues the recent Ninth Circuit decision in Smith v. Davis, 953 F.3d 582 (9th Cir. 2020) (en

18 banc) is authority for the proposition that equitable tolling of § 2244’s limitations period is

19 available only retrospectively, i.e. after the filing of an untimely petition. Respondent further

20 argues that:

21 [i]f [petitioner] cannot file a petition that includes all of his

intended claims by [the as tolled] March 31, 2021 [deadline],

22 then on or before that day, petitioner could file a ’protective

petition’ that includes the claims he has already fully developed,

23 thus ensuring that those claims are timely. Afterward, he could

move to amend the petition with any additional claims and, at the

24 same time, seek equitable tolling for them. See 28 U.S.C. §

2242; Fed. R. Civ. P. 15(a).

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26 (Doc. No. 19 at 3.)

27 Petitioner argues in reply that the holding in Smith did not impose a blanket ban on

1 Ninth Circuit in Smith, is an extraordinary circumstance on the facts and circumstances of this

2 case that, absent further tolling, makes timely filing of a complete petition impossible despite

3 the exercise of reasonable diligence on his behalf. (Doc. No. 20 at 3-12.)

4 The court is unpersuaded by respondent’s argument that the Ninth Circuit’s decision in

5 Smith effectively eliminated prospective equitable tolling of the AEDPA statute of limitations

6 in all cases. The Supreme Court has not held that equitable tolling of the 28 U.S.C. § 2244

7 deadline is unavailable prior to filing of an untimely petition. Moreover, the Ninth Circuit has

8 long countenanced prospective equitable tolling. See Beeler, 128 F.3d at 1285, 1289 (finding

9 no basis for upsetting the district court’s decision to grant the petitioner’s request to

10 prospectively equitably toll the AEDPA statute of limitations and extend the filing date for his

11 federal habeas petition due to a substitution of habeas counsel over which petitioner had no

12 control); accord Hargrove v. Brigano, 300 F.3d 717, 721 (6th Cir. 2002) (“[W]e find that

13 prospectively tolling § 2244(d)(1)'s one year limitation period was reasonable in this case.”)

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

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

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

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

18 1513371, at *8 (recommending pre-petition tolling, noting that “[P]etitioner has shown a

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

20 Respondent cites no authority to support his position to the contrary.”); Bunyard, 2016 WL

21 128429, at *5 (“[T]he court concludes that the 68 day delay in appointment of counsel in this

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

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

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

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

26 **4-6 (E.D. Cal. Sept. 14, 2015) (“Petitioner’s request for assistance from counsel was delayed

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

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

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

3 respondent).

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

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

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

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

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

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

10 in appointment of counsel warranted a period of tolling, concluding that “just over six months

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

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

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

14 without prejudice pre-petition equitable tolling where petitioner had failed to show

15 extraordinary 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

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

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

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

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

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

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

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

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

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

26 /////

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1 prepare and file his federal petition.4 The Ninth Circuit in Smith found the petitioner had

2 simply failed to show that he exercised the diligence required for equitable tolling under

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

4 In doing so, the Ninth Circuit merely held that the length of any equitable tolling cannot be

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

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

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

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

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

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

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

12 demonstrated, and committed to the continued exercise of due diligence.

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

14 not even before the court in that case.5 That decision cannot be interpreted as deciding a

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

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

17 AEDPA statute of limitations where it is supported by an appropriate showing. The Ninth

18 Circuit in Smith certainly did not expressly overrule Beeler; indeed, it did not even mention the

19 decision in Beeler. In Smith, the court analyzed the Holland factors retrospectively on facts

20 where an untimely federal petition had been filed and the impeding extraordinary circumstance

21 abated long before the AEDPA limitations period had expired. See Smith, 953 F.3d at 589-91,

22 598-600. In Beeler, the court analyzed the Holland factors prospectively on facts where the

23 petitioner sought pre-petition tolling in the face of an impediment that was ongoing during the

24

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

25

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

26 impediment was removed. See Smith, 953 F.3d at 586.

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 for

1 AEDPA limitations period. See 128 F.3d at 1289. The two cases, consistent on the law and

2 distinguishable on their facts, are not irreconcilable. See Miller v. Gammie, 335 F.3d 889, 893,

3 900 (9th Cir. 2003) (circuit precedent is implicitly overruled where intervening higher

4 authority undercuts the underlying theory or reasoning, such that the cases are clearly

5 irreconcilable); accord Organic Cannabis Foundation, LLC v. Comm’r., 962 F.3d 1082, 1092-

6 93 (9th Cir. 2020); see also Close v. Sotheby’s, Inc., 894 F.3d 1061, 1072-73 (9th Cir. 2018) (if

7 a court can apply prior circuit precedent without running afoul of intervening authority, it must

8 do so).

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

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

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

12 230 F.3d 461, 467 (1st Cir. 2000)); see also Cooper v. MRM Inv. Co., 367 F.3d 493, 507 (6th

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

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

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

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

17 2:18-CV-03928-SVW-RAO, 2019 WL 1063389, at *10 (C.D. Cal. Jan. 15, 2019) (“Until the

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

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

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

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

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

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

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

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

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

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

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

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

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

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

5 file an untimely federal petition that violates case scheduling orders and risk dismissal and

6 imposition of sanctions. But neither equity nor the holding in Smith require that in all cases

7 petitioner be bound to these options and the concomitant consumption of extremely scarce

8 judicial resources. Indeed, in Holland the Supreme Court recognized that flexibility is inherent

9 in equity in order to meet new situations that demand equitable intervention. See 560 U.S. at

10 650. Moreover, the Ninth Circuit in Smith acknowledged that equity is not meant to create

11 blanket, prospective rules, but rather to address case specific circumstances.6 See 953 F.3d at

12 590.

13 Despite the undersigned’s recognition of Beeler’s binding effect, the court is

14 unpersuaded that, based on the facts and circumstances shown to date by petitioner’s counsel,

15 the extraordinary circumstances brought about by the COVID-19 pandemic have already

16 rendered petitioner presently unable to file a complete federal habeas petition prior to “one

17 year from the date that San Quentin State Prison removes restrictions on legal visiting and

18

6 In addition to prior orders issued by the undersigned (see Cowan v. Davis, No. 1:19-CV-

19 00745-DAD, 2020 WL 4698968 (E.D. Cal. Aug. 13, 2020) and Brown v. Davis, No. 1:19-cv-

01796-DAD, 2020 WL 5069654 (E.D. Cal. Aug. 27, 2020), at least three other district courts

20 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 have reached different

21

conclusions. In one of those cases, the motion for prospective equitable tolling was denied

22 without prejudice and the petitioner was directed 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-

23 5219-PHX-MTL, 2020 WL 3414700, at **4–5 (D. Ariz. June 22, 2020). In that case the court

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

24 decision in Smith “implicitly rejects prospective tolling in this Circuit.” 2020 WL 3414700, at

*3. In contrast, two other district courts have granted motions for prospective equitable tolling

25

in the wake of Smith. See Maury v. Davis, No. 2:12-cv-1043 WBS DB, 2020 WL 5880483, at

26 *1 (E.D. Cal., 2020); Dunn v. Baca, No. 3:19-cv-00702-MMD-WGC, 2020 WL 2525772, at

*2 (D. Nev. May 18, 2020) (recognizing that “the extraordinary circumstance of the COVID-

27 19 pandemic is ongoing, and at the moment it is preventing [petitioner] from filing a timely

amended petition.”). For the reasons explained above, the undersigned concludes that the

1 California’s stay-at-home order, issued on March 19, 2020, is lifted[,]” notwithstanding the

2 continued exercise of reasonable diligence by counsel. (Doc. No. 15 at 2, 5-9; see also Rules

3 Governing § 2254 Cases, Rule 2, 28 U.S.C.A. foll. § 2254 [regarding contents of the petition

4 for habeas corpus].)

5 Petitioner’s arguments in support of open-ended equitable tolling beyond March 31,

6 2021 are, in this case, conclusory and speculative. Petitioner argues that “[u]nder present

7 conditions there is no possible way [he] can file a complete federal petition on March 31,

8 2021.” (Doc. No. 20 at 11.) Petitioner argues that “all indications are that the pandemic will

9 continue to get worse before it gets better.” (Doc. No. 20 at 11.) Petitioner argues that “[he]

10 essentially cannot begin work on his petition until the pandemic resolves….” (Id.)

11 The “exercise of a court’s equity powers must be made on a case-by-case basis.”

12 Holland, 560 U.S. at 649–50. Moreover, the petitioner “bears a heavy burden to show that [he]

13 is entitled to equitable tolling, lest the exceptions swallow the rule.” Rudin v. Myles, 781 F.3d

14 1043, 1055 (9th Cir. 2015); accord Milam, 953 F.3d at 1132.

15 The court has granted case specific prospective equitable tolling on grounds that the

16 COVID-19 pandemic, in its present form, has presented an extraordinary circumstance that

17 impeded timely filing of a complete federal habeas petition. See Cowan v. Davis, No. 1:19-

18 CV-00745-DAD, 2020 WL 4698968, at **5-6 (E.D. Cal. Aug. 13, 2020); Brown v. Davis, No.

19 1:19-CV-01796-DAD, 2020 WL 5069654, at ** 7-8 (E.D. Cal. Aug. 27, 2020). However,

20 here, petitioner has simply not yet demonstrated that notwithstanding continuing reasonable

21 diligence, the COVID-19 pandemic makes it unlikely the federal petition can be completed and

22 filed prior to “one year from the date that San Quentin State Prison removes restrictions on

23 legal visiting and California’s stay-at-home order, issued on March 19, 2020, is lifted[.]” (Doc.

24 No. 15 at 2; see Grant, 862 F.3d at 918.

25 Petitioner presents no case specific facts regarding work on the federal petition that has

26 been accomplished; work that has yet to be accomplished; and the ongoing and specific

27 COVID-19 impediments that prevent preparation and filing of a complete petition earlier than

1 See e.g., Dennis, 65 F.Supp.2d at 1097 n.5 (rejecting an equitable tolling claim due to “lack of

2 specific, particularized facts which would make equitable tolling appropriate”); Jurado v.

3 Wong, 2009 WL 3320494, at *7 (S.D. Cal. Oct.14, 2009) (the court considered petitioner's

4 showing of the work to be done to complete a comprehensive federal petition and thereupon

5 equitably tolled for only a portion of the time consumed by the extraordinary circumstance);

6 Bunyard, 2016 WL 128429, at *6 (equitable tolling for full duration of exceptional

7 circumstance denied where petitioner made no particularized showing that the portions of the

8 record they lacked were so crucial that nothing else could be done until they were reviewed).

9 Respondent’s failure to address the Holland factors (see Doc. No. 19), and the seemingly

10 complex and voluminous record lodged in this case (see Doc. No. 20 at 4; Doc. Nos. 16-18) are

11 not alone a basis to conclude otherwise.

12 While an attorney’s assistance in that endeavor is crucial and includes a right for that

13 counsel meaningfully to research and present a defendant’s claims, McFarland, 512 U.S. at

14 855-57, AEDPA does not necessarily entitle petitioner to one full year of attorney assisted

15 preparation. See Kayer v. Schriro, No. CV 07-2120-PHX-DGC, 2007 WL 4150213, at *2 (D.

16 Ariz. Nov. 19, 2007) (“The Court declines to find, as a general rule, that an adequate petition

17 requires one year of preparation simply because the AEDPA provides that time period as a

18 statute of limitations.”) (citing Dennis, 65 F.Supp.2d at 1097 n.5).

19 Additionally, in this case petitioner has not addressed the possible prejudice to

20 respondent’s ability to oppose challenges raised to the underlying 1998 judgment of conviction

21 arising from the passage of time during the requested open-ended tolling. The AEDPA’s

22 acknowledged purpose of “reduc[ing] delays in the execution of state and federal criminal

23 sentences.” Schriro v. Landrigan, 550 U.S. 465, 475 (2007) (citing Garceau, 538 U.S. at

24 206)); see also Carey v. Saffold, 536 U.S. 214, 226 (2002) (statutory purpose of limitations

25 period is to “encourag[e] prompt filings in federal court in order to protect the federal system

26 from being forced to hear stale claims.”); Welch v. Carey, 350 F.3d 1079, 1083 (9th Cir.2003).

27 /////

wOAOe UV MVE INE VEU oe PI Ie AY tw I A

1 Accordingly, the pending motion for equitable tolling (Doc. No. 15) is granted-in-part.

2 | Petitioner shall file his federal habeas petition on or before March 31, 2021. The motion is

3 | otherwise denied without prejudice to its renewal at a later time based upon a more complete

4 | and tangible showing.

5

6 IT IS SO ORDERED. ~ ‘ie

7 Dated: _ October 7, 2020 LL, fl □□ ae

UNITED STATES DISTRICT JUDGE

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