Brown v. Davis

• Decision Date: 27 August 2020
• Docket Number: Case No. 1:19-cv-01796-DAD
• Citation: 482 F.Supp.3d 1049
• Court: U.S. District Court — Eastern District of California
• Parties: Steven Allen BROWN, Petitioner, v. Ronald DAVIS, Warden of California State Prison at San Quentin, Respondent.

482 F.Supp.3d 1049

Steven Allen BROWN, Petitioner,

v.Ronald DAVIS, Warden of California State Prison at San Quentin, Respondent.

Case No. 1:19-cv-01796-DAD

United States District Court, E.D. California.

Signed August 27, 2020

Jennifer Marie Corey Mann, Office of the Federal Defender, Sacramento, CA, John Robert Mills, Phillips Black, Inc., Oakland, CA, Kelly L. Culshaw, Pittsburgh, PA, Sara Melissa Cohbra, Law Office of Sara Cohbra, PC, Cheltenham, PA, for Petitioner.

Charity Seraph Whitney, California Attorney General, Fresno, CA, Kenneth Norman Sokoler, Office of the Attorney General, Sacramento, CA, for Respondent.

ORDER (1) GRANTING UNOPPOSED MOTION TO FILE LATE REPLY BRIEF, and (2) GRANTING EQUITABLE TOLLING TO AND INCLUDING JUNE 1, 2021

Dale A. Drozd, UNITED STATES DISTRICT JUDGE

On June 11, 2020, petitioner Steven Allen Brown, through counsel, moved to equitably toll the September 11, 2020 limitations deadline under 28 U.S.C. § 2244 for the filing of his federal habeas petition in this action. The motion requests that the current petition filing deadline of September 11, 2020 be equitably tolled to February 1, 2021 on grounds of delay in the appointment of federal habeas counsel, and further equitably tolled to June 1, 2021 on grounds of impediments arising as a result of the COVID-19 pandemic.

On July 13, 2020, respondent Warden Ronald Davis, through counsel, filed his opposition to equitable tolling beyond February 1, 2021. Petitioner filed a reply in support of the equitable tolling motion on July 28, 2020, and therein moved, unopposed, to allow the late filing of the reply.

The court having considered the parties’ filings and the record finds the pending motions amenable to decision without a hearing.¹

For the reasons explained below, the court will allow the filing of petitioner's untimely reply, and will grant petitioner's motion for equitable tolling of the applicable statute of limitations to and including June 1, 2021.

I. BACKGROUND

On January 5, 1996, petitioner was convicted of first degree murder, sodomy, and forcible lewd acts on a minor under 14, with the special circumstance of murder in the commission of the sexual offenses, and sentenced to death. See Tulare County Superior Court Case No. 32842.

On April 6, 2010, petitioner filed his automatic appeal. People v. Steven Allen Brown , Case No. S052374.

On February 27, 2012, petitioner filed his state habeas petition.

In re Steven Allen Brown on Habeas Corpus , Case No. S200366.

On June 2, 2014, the California Supreme Court affirmed petitioner's judgment of conviction and sentence on automatic appeal. People v. Brown , 59 Cal. 4th 86, 172 Cal.Rptr.3d 576, 326 P.3d 188 (2014). The United States Supreme Court denied certiorari on February 23, 2015. Steven Allen Brown v. California, ––– U.S. ––––, 135 S. Ct. 1402, 191 L.Ed.2d 373 (2015).

On September 11, 2019, the California Supreme Court summarily denied petitioner's state habeas petition on the merits. Brown on H.C., Case No. S200366.

On December 23, 2019, petitioner commenced this federal habeas proceeding pursuant to 28 U.S.C. § 2254 by filing pro se requests for the granting of in forma pauperis status, appointment of counsel, and a stay of execution.

On January 13, 2020, the court granted petitioner's requests to proceed in forma pauperis and for appointment of counsel and denied without prejudice his request for a stay of execution.

On January 31, 2020, the court adopted the recommendation of the Selection Board for the Eastern District of California and appointed Sara Cohbra, Esq. and John Mills, Esq. to represent petitioner in this federal habeas proceeding.²

On February 4, 2020, the court set the initial case management conference for June 1, 2020, and directed counsel to meet and confer regarding initial case scheduling and file a joint statement thereon.

On May 22, 2020, the parties filed a joint statement, which included: (i) their agreement that respondent would not assert the 28 U.S.C. § 2244(d)(1) limitations deadline for the filing of the federal habeas petition until February 1, 2021, i.e. one year and one day after appointment of petitioner's counsel, and (ii) notice of their disagreement over whether petitioner is entitled to further equitable tolling of the applicable statute of limitations to June 1, 2021 on the grounds that impacts stemming from the ongoing COVID-19 pandemic have and will prevent timely completion of the federal habeas petition to be filed in this action notwithstanding the exercise of reasonable diligence on behalf of petitioner and his counsel.

On May 26, 2020, following its review of the parties’ joint statement, the court vacated the June 1, 2020 case management conference and set a briefing schedule for petitioner's tolling motion that is now pending before the court.

On July 30, 2020, respondent lodged the record.

II. DISCUSSION

Petitioner has moved for leave to file one day late his reply brief in support of the equitable tolling motion. (Doc. No. 18.) Petitioner argues the due date was erroneously calendared by his counsel and that the error went unrecognized because of counsel's COVID-19 related childcare responsibilities. (Id. ) Respondent does not oppose this request. (Id. )

The court finds good cause to allow the one day late filed reply brief.

Petitioner has also moved for equitable tolling from the statutory deadline of September 11, 2020 to February 1, 2021 on grounds delay in the appointment of federal habeas counsel has and will prevent timely filing of a complete federal habeas petition, notwithstanding continuing diligent efforts by the defense team, who continue to work on the matter. (Doc. No. 16 at 6-8.)

Respondent, while not conceding that "the time it takes the [c]ourt to appoint counsel constitutes an extraordinary circumstance for the purpose of equitable tolling[,]" has agreed not to assert the AEDPA deadline on this ground until February 1, 2021. (Doc. No. 14 at 2; Doc. No. 17 at 4, n.1.)

"A habeas petitioner is entitled to equitable tolling only if he shows (1) that he has 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 Cir. 2016) (en banc ) (quoting Holland v. Florida , 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) ); accord Espinoza-Matthews v. California , 432 F.3d 1021, 1026, n.5 (9th Cir. 2005) (citing Pace v. DiGuglielmo , 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) ); see also Calderon v. United States Dist. Ct. (Beeler) , 128 F.3d 1283, 1288-89 (9th Cir. 1997) (approving 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 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), abrogated on other grounds by Woodford v. Garceau , 538 U.S. 202, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003).

In addition, there must be a causal link between the extraordinary circumstance and the inability to timely file the petition. Sossa v. Diaz , 729 F.3d 1225, 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 time and the extraordinary circumstances were the cause of the prisoner's untimeliness."). A literal impossibility to file, however, is not required. Grant v. Swarthout , 862 F.3d 914, 918 (9th Cir. 2017) (stating that equitable tolling is appropriate even where "it would have technically been possible for a prisoner to file a petition," so long as the prisoner "would have likely been unable to do so.").

Equitable tolling is limited to rare and exceptional circumstances and typically applied sparingly. Cadet v. State of Florida Department of Corrections , 853 F.3d 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. 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 might be expected to deliver under his or her particular circumstances). Among the factors that courts have considered relevant in deciding whether equitable 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 v. Wong , Case No. 09-CV-0388 L, 2010 WL 596443, at **4, 5 (S.D. Cal. Feb. 16, 2010).

This "exercise of a court's equity powers must be made on a case-by-case basis" 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 U.S. at 649–50, 130 S.Ct. 2549. The petitioner "bears the burden of showing that this extraordinary exclusion should apply to him." Miranda v. Castro , 292 F.3d 1063, 1065 (9th Cir. 2002) ; accord Milam v. Harrington , 953 F.3d 1128, 1132 (9th Cir. 2020). Here, petitioner has satisfied that burden by establishing that the extraordinary circumstances brought about by the delay in appointment of federal habeas counsel render him presently unable to file a proper federal habeas petition in this action by the statutory deadline of September 11, 2020.

An indigent capital habeas petitioner has a statutory right to counsel. 18 U.S.C. § 3599(a)(2). "[T]he right to appointed counsel includes a right to legal assistance in the preparation of a habeas corpus application." McFarland v. Scott, 512 U.S. 849, 855-56, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994). An attorney's assistance in preparing a capital habeas petition is crucial owing to the complex nature of capital habeas proceedings and the seriousness of the death penalty. Id. In particular, "the right to counsel...