Dykes v. Ayers
Filing
12
ORDER GRANTING PETITIONER'S MOTION FOR EQUITABLE TOLLING 7 (Illston, Susan) (Filed on 8/28/2012) (Additional attachment(s) added on 8/28/2012: # 1 Certificate/Proof of Service) (wsn, COURT STAFF).
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA
10
SAN FRANCISCO DIVISION
11
12
Ernest DYKES,
Case Number 3-11-cv-4454-SI
Petitioner,
13
v.
14
15
Kevin CHAPPELL,1
Acting Warden of San Quentin State Prison,
16
Respondent.
DEATH-PENALTY CASE
ORDER GRANTING
PETITIONER’S MOTION FOR
EQUITABLE TOLLING
[Doc. No. 7]
17
18
Petitioner is a condemned inmate at San Quentin State Prison. He initiated the present
19
capital habeas action on September 7, 2011, when he asked the Court to appoint counsel and to stay
20
his execution pending the completion of this action. (Doc. No. 1.) That same day, the Court granted
21
Petitioner’s requests and referred the matter to the Court’s Selection Board for the recommendation
22
of counsel to represent him. (Doc. No. 3.) However, the Court was unable to appoint counsel until
23
December 21, 2011. (Doc. No. 6.)
24
A one-year statute of limitations applies to federal habeas petitions filed by state prisoners.
25
28 U.S.C. 2244(d) § (2012). The parties agree that the limitation period for Petitioner began to run
26
when the Supreme Court of California denied Petitioner’s initial state habeas petition. (Doc. No.
27
1
28
Kevin Chappell is automatically substituted for his predecessor pursuant to Federal Rule of
Civil Procedure 25(d).
Case No. 3-11-cv-4454-SI
ORDER GRANTING PETITIONER’S MOTION FOR EQUITABLE TOLLING
(DPSAGOK)
1
7 at 3–4; Doc. No. 10 at 3.) This occurred on August 31, 2011; accordingly, absent equitable
2
tolling, the limitation period will expire on August 31, 2012.2
3
Petitioner’s Motion for Equitable Tolling is pending. (Doc. No. 7; see also Doc. No. 11.)
4
Petitioner seeks equitable tolling until the date of counsel’s appointment so that his counsel may
5
have one year to prepare a finalized petition.3 Respondent opposes Petitioner’s Motion. (Doc. No.
6
10.)
7
The Supreme Court of the United States has held that “the timeliness provision in the federal
8
habeas corpus statute is subject to equitable tolling.” Holland v. Florida, 560 U.S. ___, 130 S. Ct.
9
2549, 2554 (2010). A federal habeas petitioner “is entitled to equitable tolling only if he shows (1)
10
that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood
11
in his way and prevented timely filing.” Id. at 2562 (internal quotation marks omitted).
12
The present Petitioner has pursued his rights diligently. He initiated the present action and
13
invoked his right to counsel a mere seven days after the statute of limitations began to run.4 See,
14
e.g., Hoyos v. Wong, No. 3-9-cv-388-L-NLS, 2010 WL 596443, at *5 (S.D. Cal. Feb. 16, 2010);
15
Pollock v. Martel, No. 4-5-cv-1870-SBA, 2012 WL 174821, at *2 (N.D. Cal. Jan. 20, 2012).
16
An indigent capital habeas petitioner has a statutory right to counsel. 18 U.S.C. § 3599(a)(2)
17
(2012). “[T]he right to appointed counsel includes a right to legal assistance in the preparation of
18
a habeas corpus application.” McFarland v. Scott, 512 U.S. 849, 856 (1994). An attorney’s
19
assistance in preparing a capital habeas petition is crucial owing to the complex nature of capital
20
habeas proceedings and the seriousness of the death penalty. Id. at 855–56. In particular, “the right
21
to counsel necessarily includes a right for that counsel meaningfully to research and present a
22
23
24
2
Petitioner mistakenly uses the dates September 1, 2011, and September 3, 2012. (See Doc. No.
7 at 4.)
3
25
26
27
28
In capital habeas actions, “[t]he term ‘finalized petition’ shall refer to the petition filed by
retained or appointed counsel. . . .” Habeas L.R. 2254-28(a).
4
Petitioner would have been on firmer ground if he had initiated federal proceedings while his
state appeal was pending, as the Court might have found Petitioner to have been dilatory if his entire state
habeas petition had been deemed untimely. Cf. Chatman v. Chappell, No. 3-7-cv-640-WHA, 2012 WL
2916538, at *1 (N.D. Cal. July 17, 2012).
2
Case No. 3-11-cv-4454-SI
ORDER GRANTING PETITIONER’S MOTION FOR EQUITABLE TOLLING
(DPSAGOK)
1
defendant’s habeas claims.”5 Id. at 858. Accordingly,
2
a capital habeas petitioner is generally entitled to equitable tolling
during the time that a court is seeking counsel to represent the
petitioner because the lack of appointed counsel is an extraordinary
circumstance that often makes it impossible for a petitioner to file an
otherwise timely petition that has been prepared with the assistance
of counsel.
3
4
5
Stanley v. Martel, No. 3-7-cv-4727-EMC, slip op. at 2 (N.D. Cal. July 26, 2011) (Order Granting
6
in Part & Den. in Part 2d Mot. for Equitable Tolling) (internal quotation marks and citation omitted);
7
see also, e.g., Jablonski v. Martel, No. 3-7-cv-3302-SI, slip op. at 2–3 (N.D. Cal. Sept. 9, 2011)
8
(Order Granting Motion for Equitable Tolling); San Nicolas v. Ayers, No. 1-6-cv-942-LJO, 2007
9
WL 763221, at *6 (E.D. Cal. Mar. 9, 2007). Indeed, it is frequently the case that, were a court to
10
hold otherwise, “a capital habeas petitioner’s right to counsel would be thoroughly eviscerated.”
11
Smith v. Ayers, No. 3-4-cv-3436-CRB, slip op. at 3 (N.D. Cal. Jan. 8, 2009).
12
However, this general principle does not mean that a grant of equitable tolling is automatic
13
in capital habeas actions in which counsel is not promptly appointed, for “often the exercise of the
14
court’s equity powers must be made on a case-by-case basis.” Holland, 130 S. Ct. at 2554. When
15
deciding whether equitable tolling is appropriate in a particular action, courts consider the
16
particularities of the action, such as its complexity and the petitioner’s diligence, in addition to the
17
general right to counsel. For example, in Smith, the court granted equitable tolling in consideration
18
of the complexity of the matter in conjunction with the capital habeas petitioner’s right to counsel.
19
Slip op. at 2.
20
A review of the present matter demonstrates that it has an extremely voluminous record and
21
is extraordinarily complex. Considering the size and complexity of the record along with
22
Petitioner’s right to the assistance of counsel in preparing a petition, the Court finds that Petitioner
23
24
5
25
26
27
28
Respondent asserts that “[c]ounsel is not required” to prepare a capital habeas petition because
“[d]oing so may require nothing more than photocopying.” (Doc. No. 10 at 4.) The case Respondent
cites, Duncan v. Henry, 513 U.S. 364 (1995), merely held that a habeas petitioner did not exhaust a claim
where the petitioner did not inform the state courts that he was asserting a violation of the United States
Constitution. There is, in fact, no support for Respondent’s contention, which is directly contrary to
McFarland, 512 U.S. at 855–59. Respondent’s discussion of noncapital habeas petitioners is inapposite,
as they do not have a right to counsel to prepare their petitions.
3
Case No. 3-11-cv-4454-SI
ORDER GRANTING PETITIONER’S MOTION FOR EQUITABLE TOLLING
(DPSAGOK)
1
will require at least a year from counsel’s appointment to prepare and to file a finalized petition,
2
which is the petition that he is statutorily entitled to file. The Court accordingly concludes that the
3
prolonged lack of appointed counsel stands in Petitioner’s way and prevents the timely filing of a
4
finalized petition.
5
In short, Petitioner has been pursuing his rights diligently, and the significant delay in
6
appointing counsel stands in Petitioner’s way and prevents timely filing of a finalized petition.
7
Petitioner is therefore entitled to equitable tolling of the statute of limitations.
8
Accordingly, the Court grants Petitioner’s Motion for Equitable Tolling, (Doc. No. 7).
9
Unless he is able to demonstrate a need for additional equitable tolling, cf. Hughes v. Brown, No.
10
3-3-cv-2666-JSW (N.D. Cal. June 23, 2004) (Order Granting Pet’r’s 2d Appl. for Equitable Tolling),
11
Petitioner shall file his finalized petition on or before December 21, 2012.
12
13
IT IS SO ORDERED.
14
15
DATED: August 28, 2012
__________________________________
SUSAN ILLSTON
United States District Judge
16
17
18
19
20
21
22
23
24
25
26
27
28
4
Case No. 3-11-cv-4454-SI
ORDER GRANTING PETITIONER’S MOTION FOR EQUITABLE TOLLING
(DPSAGOK)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?