(DP) Contreras v. Davis

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7 UNITED STATES DISTRICT COURT

8 EASTERN DISTRICT OF CALIFORNIA

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10 JORGE CONTRERAS, Case No. 1:19-cv-01523-AWI-SAB

11 Petitioner, DEATH PENALTY CASE

12 v. FINDINGS AND

RECOMMENDATION ON

13 RONALD DAVIS, Warden of California State PETITIONER’S FOURTH MOTION

Prison at San Quentin, FOR EQUITABLE TOLLING

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Respondent.1 (ECF No. 94)

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FOURTEEN (14) DAY DEADLINE TO

16 OBJECT

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18 On March 8, 2022, Petitioner Jorge Contreras, through counsel, moved to equitably toll

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

20 petition in this action. The motion, Petitioner’s fourth, requests that the current as tolled

21 petition filing deadline of June 9, 2022, be further equitably tolled to and including August 1,

22 2022.

23 Respondent Warden Ronald Davis, through counsel, timely filed his response to the

24 motion on April 5, 2022. Petitioner timely filed his reply in support of the motion on that same

25 day. No hearing date has been set and the Court finds that none is required. The matter is

26 deemed submitted.2

27 1 Ron Broomfield, Acting Warden of San Quentin State Prison, is substituted for Ronald Davis, former Warden of

San Quentin State Prison, pursuant to Federal Rules of Civil Procedure, Rule 25(d).

1 Upon consideration of the pleadings, and the record, the Court makes the following

2 findings and recommendation.

3 I.

4 BACKGROUND

5 The facts of this case, reflected in the Court’s docket, are summarized as follows.

6 On December 11, 1996, Petitioner was convicted of first degree felony murder and

7 robbery, with the special circumstance of murder in the commission of the robbery found true,

8 and sentenced to death. Tulare County Superior Court Case No. 37619.

9 Petitioner’s conviction was affirmed on appeal. People v. George Lopez Contreras, 58

10 Cal. 4th 123 (2013). His state petition for writ of habeas corpus was summarily denied on the

11 merits. In re Jorge Contreras on Habeas Corpus, California Supreme Court Case No. S199915.

12 On October 28, 2019, Petitioner began this federal habeas proceeding pursuant to 28

13 U.S.C. § 2254.

14 On December 9, 2019, the Court appointed Brian M. Pomerantz and Ken Murray to

15 represent Petitioner in the case,.

16 The Court granted Petitioner’s three prior motions for equitable tolling of the petition

17 filing deadline, on grounds of extraordinary circumstances raised by the COVID-19 pandemic.

18 (ECF Nos. 59, 74, 89, 92.)

19 II.

20 DISCUSSION

21 Petitioner moves for an additional fifty-three (53) days of tolling, representing time lost

22 to the COVID-19 pandemic. He supports the motion by (1) revisiting arguments and evidence

23 presented in support of his prior tolling motions (see ECF No. 94 at 1-3, incorporating ECF

24 Nos. 49, 53, 65, 70, 81, 84, 88), and (2) pointing to other capital cases pending in the district’s

25 Fresno division where the Court granted equitable tolling to August 1, 2022, on grounds of the

26 ongoing COVID-19 pandemic (see Brown v. Davis, E.D. Cal. Case No. 1:19-cv-01796-DAD;

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1 McWhorter v. Davis, E.D. Cal. Case No. 1:20-cv-00215-JLT).3

2 Respondent opposes any further equitable tolling of the § 2244(d)(1) petition filing

3 deadline. He argues that Petitioner has not carried his burden of presenting new facts that (1)

4 the risk of COVID-19 transmission and illness remains an extraordinary circumstance (see

5 ECF No. 97 at 2-5; see also ECF Nos. 83-1 through 83-5 [regarding COVID-19 programming

6 at San Quentin State Prison); California Penal Code § 5058.7 [mandating confidential legal

7 phone calls at state correctional facilities upon counsel’s request, since January 1, 2021]), and

8 (2) counsel have been reasonably diligent under the constraints imposed by the COVID-29

9 pandemic. For example, he states Petitioner has not demonstrated that: COVID-19 closures

10 actually delayed preparation of a federal petition (see ECF No. 97 at 2), a mere continuing

11 theoretical possibility of COVID transmission constitutes an extraordinary circumstance, and

12 presentation of an initial federal petition containing only non-record evidence and claims has

13 been impeded by COVID-19. (Id.; see also ECF No. 83 at 2, 4-10.)

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

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

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

17 (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)); see also Espinoza-Matthews v.

18 California, 432 F.3d 1021, 1026 n.5 (9th Cir. 2005) (citing Pace v. DiGuglielmo, 544 U.S. 408,

19 418 (2005)); Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1288-89 (9th Cir.

20 1997) (approving prospective equitable tolling of the one year statute of limitations under 28

21 U.S.C. § 2244(d) where “extraordinary circumstances” beyond a prisoner’s control make it

22 impossible to file a petition on time), partially overruled on other grounds by Calderon v.

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

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

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

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

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3 Reference is to CM/ECF system pagination unless otherwise stated.

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

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

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

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

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

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

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

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

9 2017). It may be appropriate where external forces, rather than a petitioner’s lack of diligence,

10 account for the failure to file a timely claim. Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.

11 1999); see also Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir. 2011) (the effort required is what

12 a reasonable person might be expected to deliver under his or her particular circumstances).

13 Among the factors that courts have considered relevant in deciding whether equitable tolling of

14 the limitations period is appropriate are the complexity of the legal proceedings and whether

15 the state would suffer prejudice from the delay. Hoyos v. Wong, Case No. 09-cv-0388 L

16 (NLS), 2010 WL 596443, at *4–5 (S.D. Cal. Feb. 16, 2010).

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

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

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

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

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

22 1132 (9th Cir. 2020).

23 Here, the Court finds that Petitioner has shown, at least inferentially: continuing

24 extraordinary circumstances of COVID-19 likely impede preparation of a complete federal

25 petition prior to the requested as tolled date of August 1, 2022, continuing and anticipated

26 reasonable diligence by counsel, and the lack of prejudice to Respondent from the brief fifty-

27 three (53) days of further tolling requested by Petitioner.

1 the Omicron surge, has delayed and continues to limit investigation and development of

2 evidence from Petitioner and lay and expert witnesses. (See e.g., ECF Nos. 49-2, 84-1, 88-1,

3 88-3 at 34-35.) It appears that in-person investigation and interaction involving Petitioner and

4 lay and expert witnesses, some of whom are at increased risk of COVID-19 infection and

5 illness or concerned and hesitant in that regard, is ongoing and will required time beyond the

6 current petition filing deadline. (Id.) While the rate of COVID-19 transmission in Marin

7 County, California (where Petitioner lives) and Tulare County, California (where the trial took

8 place and some witnesses reside) is low (see cdc.gov/coronavirus/2019-ncov/your-

9 health/covid-by-county.html, last visited April 13, 2022), the specter of COVID-19 infection

10 and illness remains. California still records nearly 2100 new cases daily, including over 80

11 new cases in Marin County occupying nearly half of the available ICU beds, and over 450 new

12 cases in Tulare County occupying more than half of the available ICU beds (see

13 covid19.ca.gov/state-dashboard, last visited April 13, 2022).

14 Particularly, the Omicron variant surge and its aftermath have delayed and continue to

15 limit access to Petitioner by the defense team and experts, matters Petitioner reasonably could

16 not have anticipated at the time he filed his third tolling motion on October 6, 2021. The Court

17 is persuaded that the investigation and development of possible new mental state and

18 mitigation evidence, including expert neuropsychological opinion, requires time beyond the

19 current petition filing deadline due to delays and backlogs resulting from COVID-19, and

20 pandemic limitations on travel and in-person contact and related hesitancies. (See e.g., ECF

21 No. 81 at 22-27; ECF No. 84 at 14-15; ECF No. 84-1; ECF No. 88-1.)

22 For example, as recently as December 9, 2021, Petitioner’s counsel advised the Court

23 that expert neuropsychologists were being vetted, and that those under consideration required a

24 number of months for review of the case, evaluation of Petitioner, and rendering of an opinion.

25 (ECF No. 88-1 at 3-5.) The Court takes notice that following closure due to the Omicron

26 surge, San Quentin has reopened for some in-person legal visitation, limited to Fridays through

27 Sundays, by up to two people, with appointments scheduled at least one week in advance. (See

1 for visiting at San Quentin following the closure for Omicron.

2 Next, the Court finds that Petitioner has raised an inference that counsel have been and

3 will continue to be reasonably diligence in the face of the ongoing pandemic. See Ford v.

4 Gonzalez, 683 F.3d 1230, 1237 (9th Cir. 2012) (citing Holland, 560 U.S. at 653) (“The

5 diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible

6 diligence.”). For example, counsel point to previously proffered facts supporting (1)

7 continuing communication with Petitioner by available means, (2) continuing assembly and

8 review of the record, (3) continuing development of the mitigation plan, (4) continuing efforts

9 at developing expert opinion, and (5) continuing efforts at development and presenting record

10 and non-record claims. (See e.g., ECF No. 81 at 16-17, 23, 27-28; ECF No. 84 at 14-15; ECF

11 No. 84-1; ECF No. 88-1.)

12 Relatedly, the Court previously rejected Respondent’s suggestion that Petitioner need

13 only file a protective petition containing record claims, and that Petitioner cannot show

14 diligence by pursuing unexhausted evidence and potential new colorable claims. (See ECF

15 No. 92 at 7-8, citing ECF Nos. 55, 59); see also Rules Governing § 2254 Cases, Rule 2, 28

16 U.S.C.A. foll. § 2254; Ayestas v. Davis, 138 S. Ct. 1080, 1094 (2018) (proper application of

17 the “reasonably necessary” standard of 18 U.S.C. § 3599(f) requires courts to consider the

18 potential merit of the claims that the applicant wants to pursue, the likelihood that the services

19 will generate useful and admissible evidence, and the prospect that the applicant will be able to

20 clear any procedural hurdles standing in the way); Rhines v. Weber, 544 U.S. 269, 277 (2005)

21 (petitioner may file a federal mixed petition for state exhaustion in limited circumstances); cf.

22 Smith v. Davis, 953 F.3d 582, 601 (9th Cir. 2020) (when a petitioner acts diligently to prepare

23 a habeas petition, it matters not if he recycles arguments previously made by counsel to state

24 courts).

25 Finally, the Court observes the size and complexity of this capital habeas case, the

26 apparent extent of the mitigation investigation to be conducted within California and Mexico,

27 and Respondent’s apparent concession that further equitable tolling would not be prejudicial.

1 No. 55 at 10-11; ECF Nos. 44-48.) It remains that Respondent does not suggest he would

2 suffer any prejudice should the requested brief period of additional tolling be granted. The

3 Court finds no reason to believe that further tolling of fifty-three (53) days would have a

4 significant impact upon Respondent’s ability to oppose any challenges raised by Petitioner to

5 his underlying 1996 judgment of conviction.

6 The ongoing extraordinary circumstances raised by the COVID-19 pandemic discussed

7 above, have impeded Petitioner’s right to the assistance of appointed habeas counsel in

8 preparing a complete federal petition. 18 U.S.C. § 3599(a)(2); McFarland v. Scott, 512 U.S.

9 849, 855-57 (1994) (given the complex nature of capital habeas proceedings and the

10 seriousness of the possible penalty, an attorney’s assistance in preparing a federal habeas

11 corpus petition is crucial and includes a right for that counsel meaningfully to research and

12 present a defendant’s claims); McCleskey v. Zant, 499 U.S. 467, 498 (1991) (in the pre-

13 AEDPA context, stating that “petitioner must conduct a reasonable and diligent investigation

14 aimed at including all relevant claims and grounds for relief in the first federal habeas

15 petition.”), superseded by statute as recognized in Banister v. Davis, __U.S.__, 140 S. Ct.

16 1698, 1707 (2020).

17 For all the reasons stated, the Court finds that Petitioner has carried his burden of

18 showing that notwithstanding the continuing exercise of reasonable diligence, the present

19 extraordinary circumstances of the COVID-19 pandemic make it unlikely that a proper federal

20 habeas petition in this case can be completed and filed prior to August 1, 2022. Holland, 560

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

22 Governing § 2254 Cases, Rule 2, 28 U.S.C.A. foll. § 2254. For the same reasons, the Court

23 finds that were a motion for equitable tolling to accompany a federal habeas petition filed on

24 August 1, 2022, Petitioner would carry his burden on the motion. However, this was will the

25 last extension the court will provide, absent the appropriate legal standard and not for the

26 reasons already stated.

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1 Il.

2 FINDINGS AND RECOMMENDATION

3 Accordingly, based upon the findings above, it is recommended that Petitioner’s fourth

4 | motion for equitable tolling (ECF No. 94) be granted, such that Petitioner shall file his federal

5 | petition for writ of habeas corpus on or before August 1, 2022,

6 These findings and recommendation will be submitted to the United States District

7 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)d). Within

8 | fourteen (14) days following service of these findings and recommendation, any party may

9 | file written objections with the Court. The document should be captioned “Objections to

10 | Magistrate Judge’s Findings and Recommendation.” Any failure to file objections within the

11 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d

12 | 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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4 IT IS SO ORDERED. 2 ee

15 | Dated: _ April 15, 2022 LF

16 UNITED STATES MAGISTRATE JUDGE

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