(DP) Contreras v. Davis ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JORGE CONTRERAS, Case No. 1:19-cv-01523-AWI-SAB 12 Petitioner, DEATH PENALTY CASE 13 v. ORDER (1) DECLINING TO ADOPT FINDINGS AND RECOMMENDATION 14 RONALD DAVIS, Warden of California DENYING WITHOUT PREJUDICE State Prison at San Quentin, EQUTIABLE TOLLING BEYOND 15 FEBRUARY 9, 2022, and (2) GRANTING Respondent.1 FURTHER EQUITABLE TOLLING TO 16 AND INCLUDING JUNE 9, 2022 17 18 19 Petitioner Jorge Contreras, a state prisoner convicted and sentenced to death in Tulare 20 County Superior Court on December 11, 1996, proceeds through appointed counsel, Brian M. 21 Pomerantz, Esq. and Ken Murray, Esq., in this proceeding commenced on October 28, 2019, 22 pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge 23 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 24 Before the Court is the magistrate court’s November 19, 2021 recommendation denying 25 without prejudice Petitioner’s October 6, 2021 motion to equitably toll, on grounds of continuing 26 impediments arising from the COVID-19 pandemic, the deadline under 28 U.S.C. § 2244 to file 27 1 Ron Broomfield, Warden of San Quentin State Prison, is substituted for Ronald Davis, former 1 his federal petition in the case for the period February 10, 2022 to and including June 9, 2022. 2 The Court, on January 7, 2022, adopted the magistrate court’s recommendation granting 3 unopposed equitable tolling on such grounds to and including February 9, 2022, and held in 4 abeyance the magistrate court’s recommendation denying equitable tolling beyond February 9, 5 2022, pending Respondent’s response to Petitioner’s December 9, 2021 objections to the 6 recommendation and evidence newly submitted with the recommendation. Respondent, on 7 January 19, 2022, filed his response and evidence newly submitted therewith. On January 29, 8 2022, Petitioner filed supplemental authority in support of his objections.2 9 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, the 10 Court has conducted a de novo review of the case. Having carefully reviewed the entire file, and 11 for the reasons explained below, the Court will: (1) decline to adopt the recommendation 12 denying without prejudice equitable tolling beyond February 9, 2022, and (2) grant Petitioner’s 13 motion for further equitable tolling to and including June 9, 2022, on grounds of continuing 14 impediments arising from the COVID-19 pandemic. 15 DISCUSSION 16 Petitioner objects that the magistrate court erred in recommending equitable tolling 17 beyond February 9, 2022, be denied. He revisits his argument to the magistrate court that 18 COVID-19 and its Delta variant impede safe in-person, face-to-face, one-on-one investigation 19 within San Quentin State Prison (where he lives) and Tulare County, California (where his 20 family and lay witnesses live), and necessary expert consultation and evaluation. (See ECF No. 21 88 at 6, 8, 10-38.)3 He revisits argument to the magistrate court that the constitutionally required 22 investigation and development of record and non-record claims is complex and extensive, and 23 that vaccines and inadequate and unenforced COVID-19 safety protocols do not sufficiently 24 mitigate the risks of contracting and transmitting the virus. (Id.) He argues for the first time that 25 2 The Court takes judicial notice of the proffered supplemental authority, an order issued on 26 January 28, 2022, by United States District Judge Dale Drozd, granting further equitable tolling 27 in a separate capital habeas proceeding, Brown v. Davis, E. D. Cal. Case No. 1:19-cv-01796 DAD, ECF No. 37. Fed. R. Evid. 201(b). 1 the post-recommendation emergence of the COVID-19 Omicron variant and surge raise and 2 exacerbate these same impediments to field investigation and record and non-record claim 3 development. (See ECF No. 88 at 7, 9-10; see also ECF No. 88-3 at 34.) 4 Additionally, Petitioner objects that the magistrate court erred by denying him his 5 statutory entitlement to an unimpeded one-year of the assistance of counsel to investigate, 6 develop and present federal claims. (See ECF No. 88 at 20, citing 28 U.S.C. § 2244(d)(1).) 7 Petitioner supports his objections with information and evidence not presented to or 8 considered by the magistrate court. (See ECF Nos. 88-1 - 88-5.) 9 Respondent responds to the objections and supporting proffer by arguing that the 10 magistrate court did not err in finding Petitioner failed to carry his burden of showing the 11 COVID-19 pandemic remains an extraordinary circumstance justifying further equitable tolling. 12 (See ECF No. 90 at 2.) He argues the mere “continuing theoretical possibility” of COVID-19 13 transmission, and speculation that unidentified non-record witnesses and new evidence would 14 lead to the development of colorable new claims, are not alone extraordinary circumstances 15 preventing timely development and presentation of a federal habeas petition, which need only 16 include fully exhausted claims. (See ECF No. 90 at 3-9.) 17 Respondent argues that Petitioner has not been reasonably diligent in preparing and 18 presenting his federal petition. (See ECF No. 90 at 6-9.) He suggests that: over 70% of 19 Californians and 90% of San Quentin inmates have been vaccinated and 80% of San Quentin 20 inmates have received booster shots (see ECF No. 90 at 5; ECF No. 90-1 at 2), San Quentin has 21 been open for confidently legal phone calls and mostly open for confidential in-person legal 22 visits for at least the twelve month period of alleged statutory entitlement to the assistance of 23 counsel (see ECF No. 90 at 5-6, citing ECF No. 90-1; see also ECF No. 90-2), and Counsel and 24 the defense team have been able to safely travel and meet with and interview reasonably 25 necessary record witnesses by complying with COVID-19 safety guidelines, policies, and 26 protocols (see ECF No. 90 at 3, 6-9). 27 Additionally, Respondent argues that Petitioner cannot show diligence under Holland v. 1 ideal, or developing unexhausted evidence and claims. (Id.) 2 Respondent supports his response to the objections and supporting proffer with 3 information and evidentiary facts not presented to or considered by the magistrate court. (See 4 ECF No. 90-1 - 90-2.) 5 The Court, upon de novo review of the record and consideration of the newly proffered 6 evidence and matters judicially noticed, finds that notwithstanding existing and anticipated 7 reasonable diligence by Petitioner and Counsel, extraordinary circumstances raised by the 8 ongoing COVID-19 pandemic including the Omicron variant and surge, make the investigation, 9 development, and presentation of a complete federal habeas petition unlikely if not impossible, 10 prior to the requested as tolled date of June 9, 2022, as explained below.4 See Brown v. Roe, 279 11 F.3d 742, 744 (9th Cir. 2002) (citing United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000)) 12 (a district court has discretion to consider evidence presented for the first time in a party's 13 objection to a magistrate court's recommendation). 14 It is undisputed the magistrate court observed the controlling legal standard: 15 “A habeas petitioner is entitled to equitable tolling only if he shows (1) that he has 16 been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Fue v. Biter, 842 F.3d 650, 653 (9th 17 Cir. 2016) (en banc) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)); see also Espinoza-Matthews v. California, 432 F.3d 1021, 1026 n.5 (9th Cir. 2005) 18 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1288-89 (9th Cir. 1997) (approving 19 prospective equitable tolling of the one year statute of limitations under 28 U.S.C. § 2244(d) where “extraordinary circumstances” beyond a prisoner’s control make 20 it impossible to file a petition on time), partially overruled on other grounds by Calderon v. United States Dist. Ct. (Kelly V), 163 F.3d 530, 540 (9th Cir. 1998), 21 abrogated on other grounds by Woodford v. Garceau, 538 U.S. 202 (2003). 22 In addition, there must be a causal link between the extraordinary circumstance and the inability to timely file the petition. See Sossa v. Diaz, 729 F.3d 1225, 23 1229 (9th Cir. 2013) (“[E]quitable tolling is available only when extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on 24 time and the extraordinary circumstances were the cause of the prisoner’s untimeliness.”). A literal impossibility to file, however, is not required. Grant v. 25 Swarthout, 862 F.3d 914, 918 (9th Cir. 2017) (acknowledging that equitable tolling is appropriate even where “it would have technically been possible for a 26 prisoner to file a petition,” so long as the prisoner “would have likely been unable 27 4 The Court, for the reasons stated, finds that were a motion for equitable tolling to accompany a 1 to do so.”). 2 Equitable tolling is limited to rare and exceptional circumstances and typically applied sparingly. Cadet v. State of Florida Department of Corrections, 853 F.3d 3 1216, 1221 (11th Cir. 2017). It may be appropriate where external forces, rather than a petitioner’s lack of diligence, account for the failure to file a timely claim. 4 Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999); see also Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir. 2011) (the effort required is what a reasonable person 5 might be expected to deliver under his or her particular circumstances). Among the factors that courts have considered relevant in deciding whether equitable 6 tolling of the limitations period is appropriate are the complexity of the legal proceedings and whether the state would suffer prejudice from the delay. Hoyos 7 v. Wong, Case No. 09-cv-0388 L (NLS), 2010 WL 596443, at *4–5 (S.D. Cal. Feb. 16, 2010). 8 This “exercise of a court’s equity powers must be made on a case-by-case basis” 9 and it “enables courts to meet new situations that demand equitable intervention, and to accord all the relief necessary to correct particular injustices.” Holland, 560 10 U.S., at 649–50. The petitioner “bears the burden of showing that this extraordinary exclusion should apply to him.” Miranda v. Castro, 292 F.3d 1063, 11 1065 (9th Cir. 2002); accord Milam v. Harrington, 953 F.3d 1128, 1132 (9th Cir. 2020). 12 13 (ECF No. 85 at 6-8.) 14 The magistrate court, applying that standard to the facts and evidence then before it, 15 fairly and properly found Petitioner failed to present case specific evidentiary facts that 16 exceptional circumstances raised by the COVID-19 pandemic entitled him to equitable tolling 17 beyond February 9, 2022. (ECF No. 85 at 8-10, citing Jurado v. Wong, 2009 WL 3320494, at *7 18 (S.D. Cal. Oct.14, 2009) (the court considered petitioner's showing of the work to be done to 19 complete a comprehensive federal petition and thereupon equitably tolled for only a portion of 20 the time consumed by the extraordinary circumstance); Bunyard v. Davis, 2016 WL 128429, at 21 *6 (equitable tolling for full duration of exceptional circumstance denied where petitioner made 22 no particularized showing that the portions of the record they lacked were so crucial that nothing 23 else could be done until they were reviewed); see also Blair Smith, Plaintiff, v. United State of 24 America, Defendant, No. C21-5747-BHS-SKV, 2021 WL 5910486, at *4 (W.D. Wash. Dec. 1, 25 2021) (citing Garcia v. United States, C21-0322-JLR, 2021 WL 3403540, at *2-3 (W.D. Wash. 26 August 4, 2021)) (the COVID-19 pandemic does not automatically warrant equitable tolling, 27 because the party seeking tolling must still show that he was pursuing his rights diligently and that the pandemic specifically prevented him from presenting his claim). 1 However, Petitioner has augmented his arguments to the magistrate court with new case 2 specific evidentiary facts of impediments and health and safety concerns raised by the COVID- 3 19 pandemic. (See e.g., ECF Nos. 88-1, 88-3.) The newly proffered evidence, not before or 4 considered by the magistrate court, provides factual support for COVID-19 impediments to 5 Counsel’s investigation of record and non-record claims and related mental state and mitigation 6 evidence. (Id.) 7 Moreover, in the days following the magistrate court’s recommendation, the emergence 8 of the Omicron variant and surge caused the relative risk of COVID-19 infection and illness 9 presented by in-person contact with Petitioner, witnesses and experts, and related travel and 10 personal interaction to trend significantly upward, even among the vaccinated. The Court, in this 11 regard, takes notice of: (i) the relative rise in COVID-19 cases and deaths nationwide (see 12 https://covid.cdc.gov/covid-data-tracker/#trends_dailycases [dailydeaths], 13 https://www.cdc.gov/coronavirus/2019-ncov/variants/omicron-variant.html, 14 https://www.cdc.gov/coronavirus/2019-ncov/science/forecasting/mathematical-modeling- 15 outbreak.html (last visited Feb. 3, 2022), and within California (see https://covid19.ca.gov/state- 16 dashboard/#county-statewide) (last visited Feb. 3, 2022), (ii) the current high COVID-19 17 transmission level throughout California (see https://covid.cdc.gov/covid-data-tracker/#county- 18 view?list_select_state=California&data-type=Risk&list_select_county=6107) (last visited Feb. 19 3, 2022), and (iii) the current COVID-19 modified program in effect at all California prisons 20 including San Quentin (where Petitioner lives) excluding all visitors during the period January 9, 21 2022 through at least February 6, 2022 (see www.cdcr.ca.gov/visitors/) (last visited Feb. 3, 2022; 22 see also ECF No. 90 at 5 citing ECF No. 90-1, ECF No. 90-2). Fed. R. Evid. 201(b); see also 23 Brown, E. D. Cal. Case No. 1:19-cv-01796 DAD, ECF No. 37, at 7-9. Relatedly, some federal 24 courts in California have temporarily suspended jury trials until the end of February 2022. (See 25 Brown, E. D. Cal. Case No. 1:19-cv-01796 DAD, ECF No. 37 at 8 n.4 and citations therein.) 26 The Omicron surge and resultant re-implementation of COVID-19 safety restrictions and 27 practices, and heightened concern and hesitance over COVID-19 transmissibility and illness, 1 and non-record evidence and potentially colorable claims. For example, Counsel and the defense 2 team and their households include individuals at increased risk of COVID-19 infection and at 3 least one such individual has suffered a breakthrough infection. The defense team variously has 4 been delayed and denied with regard to prison visits, assembly and discovery of relevant records, 5 access to lay witnesses some of whom are at increased risk of COVID-19 infection, and 6 examination, analysis, and opinion work by experts, some of whom have refused to travel to San 7 Quentin and evaluate Petition in the current circumstances. (See ECF Nos. 88-1, 88-3 at 34-35.) 8 Petitioner is not entitled to 365 impediment-free days to prepare and file his federal 9 petition, as he suggests. See Smith v. Davis, 953 F.3d 582, 591-92 (9th Cir. 2020) (rejecting 10 argument that AEDPA provides petitioners with a full year to prepare a habeas petition); accord 11 Kayer v. Schriro, No. CR-07-2120-PHX-DGC, 2007 WL 4150213, at *2-3 (D. Ariz. Nov. 19, 12 2007). Still, on the facts of this case, the extraordinary COVID-19 impediments raised by the 13 Omicron surge undoubtedly have delayed and will delay assembly and development of 14 investigative facts and expert opinion. (See ECF Nos. 88-1, 88-3 at 34-35.) 15 Furthermore, Petitioner adequately has supported existing and anticipated reasonable 16 diligence in the face of the evolving COVID-19 pandemic. Respondent did not object to the 17 magistrate court’s finding of continuing reasonable diligence in support of the current as tolled 18 date of February 9, 2022. (See ECF No. 85 at 8; see also ECF No. 90.) Respondent’s argument 19 in response to Petitioner’s objections, that Petitioner need only file a protective petition 20 containing claims previously exhausted in state court and thus cannot show diligence by 21 pursuing unexhausted evidence and potential new colorable claims, already has been rejected by 22 the Court. (See ECF Nos. 55, 59); see also Rules Governing § 2254 Cases, Rules 2, 28 U.S.C.A. 23 foll. § 2254; Ayestas v. Davis, 138 S. Ct. 1080, 1094 (2018) (proper application of the 24 “reasonably necessary” standard of 18 U.S.C. § 3599(f) requires courts to consider the potential 25 merit of the claims that the applicant wants to pursue, the likelihood that the services will 26 generate useful and admissible evidence, and the prospect that the applicant will be able to clear 27 any procedural hurdles standing in the way); Rhines v. Weber, 544 U.S. 269, 277 (2005) 1 Smith, 953 F.3d at 601 (when a petitioner acts diligently to prepare a habeas petition, it matters 2 not if he recycles arguments previously made by counsel to state courts). 3 In light of the foregoing, the general availability of COVID-19 vaccines, boosters, masks, 4 social distancing, and other safety practices noted by respondent, alone are unlikely to mitigate 5 the noted exceptional circumstances in a way that would allow presentation of a complete federal 6 habeas petition prior to the requested as tolled date of June 9, 2022. Particularly so, given the 7 size and complexity of this capital habeas case, and the apparent extent of the mitigation 8 investigation to be conducted, as noted by the magistrate court. (See ECF No. 85 at 9, citing 9 ECF No. 71 at 7, ECF No. 55 at 10, and ECF Nos. 44-48.) 10 Additionally, Respondent does not suggest he would suffer any prejudice should the 11 petition filing deadline be further tolled to June 9, 2022. (See ECF No. 90.) The Court finds no 12 reason to believe the relief granted hereunder would have a significant impact upon 13 Respondent’s ability to oppose any challenges raised by Petitioner to his underlying 1996 14 judgment of conviction. 15 The Court concludes the noted extraordinary circumstances of the COVID-19 pandemic 16 continue to impede Petitioner’s right to the assistance of appointed habeas counsel in preparing 17 and presenting his federal habeas petition prior to June 9, 2022, notwithstanding Counsel’s 18 existing and anticipated reasonable diligence. 18 U.S.C. § 3599(a)(2); McFarland v. Scott, 512 19 U.S. 849, 855-57 (1994) (given the complex nature of capital habeas proceedings and the 20 seriousness of the possible penalty, an attorney’s assistance in preparing a federal habeas corpus 21 petition is crucial and includes a right for that counsel meaningfully to research and present a 22 defendant’s claims); McCleskey v. Zant, 499 U.S. 467, 498 (1991) (in the pre-AEDPA context, 23 stating that “[P]etitioner must conduct a reasonable and diligent investigation aimed at including 24 all relevant claims and grounds for relief in the first federal habeas petition.”), superseded by 25 statute as recognized in Banister v. Davis, __U.S.__, 140 S. Ct. 1698, 1707 (2020). 26 Accordingly, the Court (1) declines to adopt the magistrate court’s recommendation 27 denying without prejudice equitable tolling beyond February 9, 2022, and (2) grants Petitioner’s 1 | continuing impediments arising from the COVID-19 pandemic. 2 3 IT IS SO ORDERED. 4 | Dated: _ February 8, 2022 : : _-SENIOR DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28