Weaver v. Davis ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LA TWON WEAVER, Case No.: 18cv2888 BTM (LL) Petitioner, 12 ORDER: v. 13 RONALD DAVIS, Warden of California (1) GRANTING RENEWED 14 State Prison at San Quentin, MOTION FOR EQUITABLE 15 Respondent. TOLLING [ECF NO. 34]; 16 (2) DENYING MOTION TO HOLD 17 FEDERAL HABEAS PROCEEDINGS IN ABEYANCE WITHOUT 18 PREJUDICE [ECF NO. 45]; AND 19 (3) SETTING DEADLINES 20 21 22 Pending before the Court are Petitioner’s Renewed Motion for Equitable Tolling of 23 the Deadline for filing the Petition for Writ of Habeas Corpus and Petitioner’s Motion to 24 Hold Federal Habeas Proceedings in Abeyance While the State Exhaustion Petitions are 25 Pending. (ECF Nos. 34, 45.) 26 For the reasons discussed below, the Court GRANTS Petitioner’s renewed motion 27 for equitable tolling [ECF No. 34], DENIES without prejudice the motion to hold federal 28 proceedings in abeyance [ECF No. 45] and SETS deadlines as outlined below. 1 RENEWED MOTION FOR EQUITABLE TOLLING 2 In an order dated November 4, 2019, the Court deferred ruling on the renewed 3 motion for equitable tolling pending the filing of an initial or protective petition on or 4 before November 14, 2019. (See ECF No. 40.) On November 5, 2019, Petitioner filed a 5 petition as directed, and on November 6, 2019, Petitioner filed a Notice Regarding Order 6 Deferring Ruling on Petitioner’s Renewed Motion for Equitable Tolling. (ECF Nos. 41, 7 42.) On November 7, 2019, Respondent filed a Response in opposition and on November 8 8, 2019, Petitioner filed a Reply. (ECF Nos. 47, 48.) In the Notice, “petitioner sets forth 9 the tasks that he was unable to fully accomplish prior to filing the petition,” including 10 “[t]horoughly review trial counsel files,” “[t]horoughly review each of the 339 exhibits to 11 the first state habeas petition,” “[c]onfer with expert witnesses, except for the experts 12 pertaining to the selective prosecution claims (Claims 1, 2, and 3) in the federal petition, 13 to determine whether developments in their fields require additional testing or assessment 14 or may provide the basis for additional federal constitutional claims,” and “[e]nsure that 15 the arguments in the automatic appeal and claims in state habeas petitions were merged in 16 a coherent order, and that redundant facts and arguments were eliminated.” (ECF No. 42 17 at 2.) In response to the Court’s request for a list of claims yet to be developed and drafted 18 (see ECF No. 40 at 7), Petitioner states that “counsel cannot alert the Court to claims of 19 which they are unaware because counsel have not completed the four tasks listed above,” 20 and that “[t]he period of ‘the delay necessarily attendant in the appointment of counsel 21 process’ would allow for the completion of these four tasks.’” (Id.) 22 As the Court previously noted, “the Supreme Court has stated that ‘the right to 23 counsel necessarily includes a right for that counsel meaningfully to research and present 24 a defendant’s habeas claims,’ and that ‘[b]y providing indigent capital defendants with a 25 mandatory right to qualified legal counsel in these proceedings, Congress has recognized 26 that federal habeas corpus has a particularly important role to play in promoting 27 fundamental fairness in the imposition of the death penalty.’ McFarland v. Scott, 512 U.S. 28 849, 858-59 (1994).” (ECF No. 30 at 4-5.) Mindful of this right and in view of the 1 remaining tasks outlined in Petitioner’s renewed motion and more recently-filed notice, 2 particularly counsel’s statements that they have not completed review of trial counsel files 3 or the exhibits filed with the prior state petition, coupled with the Court’s cursory review 4 of the petition now on file without exhibits, it appears evident that the delay in appointment 5 of counsel prevented Petitioner from completing tasks necessary for filing a fully- 6 developed federal petition within the statutory deadline. (See e.g. ECF No. 34-1 at 8) (“[I]f 7 equitable tolling is not granted, petitioner will not be able to complete the petition.”) 8 Respondent continues to oppose the motion for equitable tolling, asserts that the listed tasks 9 “must be done in every capital federal habeas case and are not sufficient to show that 10 ‘extraordinary circumstances’ prevent timely filing of the petition,” and argues that “these 11 claims assert nothing more than that counsel has continued to work diligently on the 12 petition but has not finished it.” (ECF No. 47 at 2.) Respondent does not appear to claim 13 prejudice would result from a short grant of equitable tolling. 14 Based on the facts and arguments presented and the initial or protective petition now 15 on file, the Court is persuaded that equity favors granting Petitioner the opportunity to 16 complete record review, investigation and development of his habeas claims and that it is 17 apparent the delay in appointment of counsel obstructed Petitioner’s ability to file a fully- 18 developed federal petition within the statutory deadline. See Doe v. Busby, 661 F.3d 1001, 19 1011 (9th Cir. 2011) (“Like any equitable consideration, whether a prisoner is entitled to 20 equitable tolling under AEDPA will depend on a fact-specific inquiry by the habeas court 21 which may be guided by ‘decisions made in other similar cases.’”), quoting Holland v. 22 Florida, 560 U.S. 631, 650 (2010). The Court also finds no basis to conclude that a grant 23 of equitable tolling would result in prejudice to Respondent, and again, Respondent does 24 not appear to make any such assertion. Accordingly, the Court GRANTS Petitioner’s 25 renewed motion for equitable tolling from the period between the denial of his state habeas 26 petition and the appointment of counsel in federal court. 27 /// 28 /// 1 MOTION TO HOLD FEDERAL PROCEEDINGS IN ABEYANCE 2 On November 6, 2019, Petitioner filed a Motion to Hold Federal Habeas Proceedings 3 in Abeyance While the State Exhaustion Petitions are Pending. (ECF No. 45.) However, 4 in view of the Court’s decision to grant equitable tolling in order to allow Petitioner to 5 complete record review and file a fully-developed federal petition including exhibits, as 6 well as recognizing the possibility that additional unexhausted claims could be developed 7 as a result, the instant motion appears premature at this time. In the motion, Petitioner 8 indicated he “has no objection to this Court deferring its ruling on the motion for stay until 9 the parties have met and conferred regarding exhaustion,” citing another district court 10 decision denying a motion for stay without prejudice to renewal after the parties met and 11 conferred on exhaustion. (See ECF Nos. 45-1 at 18, 45-5.) Accordingly, the Court 12 DENIES the motion to hold federal proceedings in abeyance WITHOUT PREJUDICE 13 to renewal after the parties meet, confer and attempt to reach agreement on the exhaustion 14 status of the claims in the petition to be filed on or before February 5, 2020, as set forth 15 below. 16 CONCLUSION AND ORDER 17 The Court GRANTS the renewed motion for equitable tolling [ECF No. 34] for the 18 period between the denial of the state habeas petition, November 14, 2018, and the 19 appointment of federal habeas counsel, February 5, 2019, and a federal habeas petition 20 filed on or before February 5, 2020 will be considered timely. The Court DENIES the 21 motion for stay and abeyance [ECF No. 45] WITHOUT PREJUDICE to renewal. 22 After that petition is filed, the parties are directed to meet, confer, and attempt to 23 reach agreement as to the exhaustion status of the claims in the petition. The parties will 24 file a joint statement on or before February 26, 2020, outlining and setting forth the areas 25 of agreement and/or disagreement on the exhaustion matter. If the parties at a minimum 26 agree that the petition contains both exhausted and unexhausted claims, Petitioner may file 27 a renewed motion or request for stay within 21 days of the deadline for filing the joint 28 statement, on or before March 18, 2020. If Petitioner files a request for stay and abeyance, 1 || Respondent may file a response/opposition within 14 days of the deadline for that filing, 2 ||on or before April 1, 2020, and Petitioner may file a reply within 7 days of the deadline 3 || for the response/opposition, on or before April 8, 2020. Unless the Court orders otherwise, 4 these matters will be decided on the joint statement and pleadings. If the parties are unable 5 ||to reach agreement to the extent discussed in this Order, the Court will issue a further 6 || scheduling Order as necessary. 7 || IT IS SO ORDERED. 8 Dated: December 3, 2019 9 (aay Tid, 10 BARRY TED MOSKOWIT ll United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28