McWhorter v. Davis, Case No. 1:20-cv-00215-NONE
| Decision Date | 07 October 2020 |
| Docket Number | Case No. 1:20-cv-00215-NONE |
| Citation | 493 F.Supp.3d 871 |
| Parties | Richard Allen MCWHORTER, Petitioner, v. Ronald DAVIS, Warden of California State Prison at San Quentin, Respondent. |
| Court | U.S. District Court — Eastern District of California |
Jennifer Marie Corey Mann, Office of the Federal Defender, Sacramento, CA, Kelly L. Culshaw, Pittsburgh, PA, Kresta Nora Daly, Barth Daly LLP, Davis, CA, Saor E. Stetler, Law Offices Of Saor E. Stetler, Mill Valley, CA, for Petitioner.
Brook A. Bennigson, Kenneth Norman Sokoler, California Attorney General's Office, Sacramento, CA, for Respondent.
ORDER GRANTING EQUITABLE TOLLING TO AND INCLUDING MARCH 31, 2021, and DENYING WITHOUT PREJUDICE FURTHER EQUITABLE TOLLING
On July 15, 2020, petitioner Richard Allen McWhorter, moved through counsel to equitably toll the limitations deadline under 28 U.S.C. § 2244(d)(1) for the filing of his petition in this action from January 22, 2021 to and including March 31, 2021 due to delay in the appointment of federal habeas counsel, and to further equitably toll that deadline to "one year from the date that San Quentin State Prison removes restrictions on legal visiting and California's stay-at-home order, issued on March 19, 2020, is lifted[,]" due to the impacts of the COVID-19 pandemic. (Doc. No. 15 at 2.)
On July 28, 2020, respondent Warden Ronald Davis, through counsel, filed his opposition to equitable tolling beyond March 31, 2021. Petitioner filed a reply in support of the motion on August 3, 2020.
Having considered the pleadings and the record before it, the court finds the pending motion amenable to decision without a hearing.1 For the reasons explained below, the court will grant equitable tolling of the applicable statute of limitations to and including March 31, 2021, and deny without prejudice any further equitable tolling of the limitations period at this time.
On March 2, 1998, petitioner was convicted of two first degree murders and first degree residential robbery, with special circumstances of multiple-murder and robbery-murder, and was sentenced to death. See Kern County Superior Court Case No. 65352A.
On August 6, 2009, the California Supreme Court affirmed petitioner's judgment of conviction and sentence on automatic appeal. People v. Richard Allen McWhorter , 47 Cal. 4th 318, 97 Cal.Rptr.3d 412, 212 P.3d 692 (2009), as modified (Oct. 14, 2009), rehearing denied (Oct. 14, 2009). The United States Supreme Court denied certiorari on October 4, 2010. Richard Allen McWhorter v. California, 562 U.S. 844, 131 S.Ct. 80, 178 L.Ed.2d 52 (2010).
On January 22, 2020, the California Supreme Court summarily denied petitioner's habeas corpus petition. In re McWhorter, Case No. S180404.
On February 11, 2020, 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 and appointment of counsel.
On February 18, 2020, the court granted petitioner's requests to proceed in forma pauperis and for appointment of counsel. On that same day, Deputy Attorney General Brook A. Bennigson filed notice of appearance on behalf of respondent, Warden Ronald Davis.
On March 31, 2020, the court adopted the recommendation of the Selection Board for the Eastern District of California and appointed attorneys Soar E. Stetler and Kresta Nora Daly to represent petitioner in this federal capital habeas proceeding.2
On April 27, 2020, the court directed counsel to meet and confer regarding initial case scheduling and to file a joint statement addressing that subject.
On May 26, 2020, the parties filed their joint statement, reporting an: (i) agreement that the 28 U.S.C. § 2244(d)(1) limitations deadline for the filing of petitioner's federal habeas petition is January 22, 2021; (ii) agreement that respondent will not assert the 28 U.S.C. § 2244(d)(1) limitations deadline until March 31, 2021, i.e. one year after appointment of petitioner's counsel; and (iii) inability to agree on equitable tolling beyond March 31, 2021 based upon the impact of and extraordinary circumstances presented by the COVID-19 pandemic.
On June 1, 2020, following its review of the parties’ joint statement, the court set a briefing schedule with respect to petitioner's now pending motion to equitably toll the limitations deadline under 28 U.S.C. § 2244(d)(1).
On July 24, 2020, respondent lodged the record.
Petitioner argues for equitable tolling of the statute of limitations deadline of January 22, 2021 to and including March 31, 2021 on grounds that the delay in appointment of federal habeas counsel has and will prevent timely filing of a complete federal petition. (Doc. No. 15 at 1-5.) Respondent has agreed not to assert the limitations period until March 31, 2021, i.e. one year following appointment of petitioner's counsel. (Doc. No. 13 at 2; Doc. No. 19 at 2.)
"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 Menominee Indian Tribe of Wis. v. United States , 577 U.S. 250, 136 S. Ct. 750, 755-56, 193 L.Ed.2d 652 (2016) (quoting Holland , 560 U.S. at 649, 130 S.Ct. 2549 ); 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) (), 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) (). A literal impossibility to file a timely petition, however, is not required. Grant v. Swarthout , 862 F.3d 914, 918 (9th Cir. 2017) ().
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) (). 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 to the extent he has established extraordinary circumstances brought about by the delay in appointment of his federal habeas counsel prevent the timely filing of a proper federal habeas petition in this action.
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, 855-6, 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. at 855–56, 114 S.Ct. 2568. In particular, "the right to counsel necessarily includes a right for that counsel meaningfully to research and present a defendant's habeas claims." Id. at 858, 114 S.Ct. 2568.
In this case, any lack of reasonable diligence in commencing this proceeding and obtaining appointed counsel is not attributable to petitioner. (See Doc. Nos. 1, 2, 9; see also Doc. No. 15 at 7.) The limitations period began to run on January 22, 2020, when the California Supreme Court denied petitioner's state habeas corpus petition. The record reflects that petitioner signed documents commencing this action on February 3, 2020, and with the assistance of the Office of the Federal Defender filed those documents with the court on February 11, 2020. Counsel were appointed seven weeks later. (See Doc. Nos 1, 2, 9); see also Dennis v. Woodford , 65 F. Supp. 2d 1093, 1097 (N.D. Cal. 1999) (...
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