(HC)(DP) Maury v. Martel ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 ROBERT EDWARD MAURY, No. 2:12-cv-1043 WBS DB 13 Plaintiff, DEATH PENALTY CASE 14 v. 15 RONALD DAVIS, ORDER 16 Defendant. 17 18 ----oo0oo---- 19 Petitioner is a condemned state prisoner proceeding 20 through counsel with a petition for writ of habeas corpus under 21 28 U.S.C. § 2254. The matter was referred to a United States 22 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local 23 Rule 302. 24 On August 28, 2020, the Magistrate Judge filed findings 25 and recommendations herein which were served on all parties and 26 which contained notice to all parties that any objections to the 27 findings and recommendations were to be filed within thirty days. 28 1 Respondent filed objections to the findings and recommendations. 2 Specifically, respondent argues that petitioner’s 3 motion for equitable tolling is premature under Smith v. Davis, 4 953 F.3d 582 (9th Cir. 2020), and that Smith overruled Calderon 5 v. U.S. Dist. Court for the Cent. Dist. Of Cal. (Beeler), 128 6 F.3d 1283, 1285 (9th Cir. 1997), which upheld prospective 7 equitable tolling of a time limitation. (See Request for 8 Reconsideration at 3–7.) (ECF No. 184.) However, the question of 9 prospective tolling of the Antiterrorism and Effective Death 10 Penalty Act (AEDPA) statute of limitation was not before the 11 court in Smith. Cowan v. Davis, No. 1:19-CV-00745-DAD, 2020 WL 12 4698968 at *4 (E.D. Cal. Aug. 13, 2020). Moreover, Smith does 13 not expressly overrule or even mention Beeler, and is not 14 irreconcilable with that decision. Id. 15 Thus, the court rejects respondent’s contention that 16 the Magistrate Judge’s order is clearly erroneous or contrary to 17 law. See Fed. R. Civ. P. 72(a); see also Local Rule 303(f). 18 In accordance with the provisions of 28 U.S.C. § 19 636(b)(1)(C) and Local Rule 304, this court has conducted a de 20 novo review of this case. Having carefully reviewed the entire 21 file, the court finds the findings and recommendations to be 22 supported by the record and by proper analysis. 23 IT IS THEREFORE ORDERED that: 24 1. The findings and recommendations filed August 28, 25 2020 are adopted in full; 26 2. Petitioner’s motion to stay these proceedings and 27 equitably toll the statue of limitations (ECF No. 179) is 28 granted; WOAOe DDR MVEUEIOT □□ FOR PF OY VV VIG 1 3. These proceedings are stayed through November 26, 2 2020; and 3 4, Petitioner is entitled to equitable tolling of the 4 statute of limitations for an additional 90 days through 5 September 7, 2020. 6 | Dated: October 2, 2020 / td □ ak. 2 , 7 WILLIAMB.SHUBB ©. 3 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28