Doolin v. Wong

Filing 134

ORDER Denying Petitioner's Motion For Additional Equitable Tolling; Granting Petitioner's Motion For Stay And Abeyance (Docs. 86 & 126 ), signed by Chief Judge Anthony W. Ishii on 1/17/2012. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEITH ZON DOOLIN,

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Petitioner,
vs.
MICHAEL MARTEL, Acting Warden
of San Quentin State Prison,

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Respondent.
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Case No. 1:09-CV-01453-AWI-P
DEATH PENALTY CASE
Order Denying Petitioner’s Motion
for Additional Equitable Tolling;
Granting Petitioner’s Motion for
Stay and Abeyance

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Doolin timely filed his federal petition, which included both exhausted and

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unexhausted claims, October 18, 2011, and concurrently filed a motion for stay

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and abeyance of his federal proceedings. The Warden opposes stay and

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abeyance. Doolin’s state exhaustion petition (S197391) was filed with the

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California Supreme Court October 24, 2011. Doolin states he submitted his state

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exhaustion petition to the California Supreme Court on October 18, but they

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refused to file it due to “non-substantive clerical errors.” Doolin asserts the

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exhibits in support of the exhaustion petition were accepted by the California

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Supreme Court on October 18, and held until the exhaustion petition was filed on

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October 24, 2011.

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The Warden contends Doolin has not shown good cause for stay and

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abeyance as required by Rhines v. Weber, 544 U.S. 269 (2005). Contrary to

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Doolin’s assertion, the Warden asserts there is no uncertainty over the timeliness

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of his state exhaustion petition, that California’s timeliness rule is firmly

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established and regularly followed and that Doolin has failed to show the

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absence of substantial delay, good cause for the delay, or that he meets an

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exception to the rule. The Warden requests Doolin’s motion for stay and

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abeyance be denied, and Doolin be ordered to withdraw his unexhausted claims

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and to proceed with litigation on his exhausted claims.

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Doolin disagrees that the state’s timeliness rules are certain, and asserts in

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his state exhaustion petition that (1) his claims were filed without substantial

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delay from the time the claims were discovered after funding was provided by

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the federal court; (2) good cause exists for any delay because prior appellate/

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habeas counsel was ineffective by failing to present these claims and/or to request

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funding to investigate them; and (3) the claims fall within exceptions to the

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timeliness standards as they allege constitutional errors that resulted in a

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fundamentally unfair trial and presented a misleading profile of Doolin such that

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absent the errors no reasonable jury would have imposed a sentence of death.

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Doolin asserts the California Supreme Court should be allowed to make the

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determination whether or not the claims presented in the exhaustion petition will

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be addressed on the merits.

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Doolin filed a motion for additional equitable tolling November 28, 2011.

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Doolin requests the statute of limitations be extended six days, to October 24, to

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ensure that California’s “unreasonable refusal to file the petition it received on

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October 18 will not create procedural confusion in future,”and to prevent any

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“additional and unnecessary obstacles to this Court’s consideration of his newly-

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developed claims and evidence” should the California Supreme Court reject

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them.
The Federal Defender was initially appointed to represent Doolin October

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14, 2009. The one-year statute of limitations began to run October 5, 2009. The

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Federal Defender discovered a conflict in their representation and withdrew May

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28, 2010. CJA counsel was appointed to represent Doolin June 15, 2010, and the

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statute of limitation was equitably tolled for 204 days to April 27, 2011.

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Subsequently, the parties stipulated to an additional 84 days of equitable tolling

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to July 20, 2011, due to the illness of lead counsel for Doolin. Following the

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issuance of Cullen v. Pinholster, 563 U.S. ___, 131 S. Ct. 1388 (April 4, 2011), the

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proceedings were suspended and the budget re-evaluated. An additional 90

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days of equitable tolling was granted, extending the statute of limitations to

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October 18, 2011.

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Doolin’s motion for further equitable tolling results from his state

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exhaustion petition being filed on October 24, 2011, six days after the expiration

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of his (already equitably-tolled three times) statute of limitations on October 18,

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2011. Doolin asserts the substance of his state exhaustion petition complied with

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California’s requirements, and the California Supreme Court Clerk’s refusal to

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file the petition did not comply with their own rules. Doolin contends the state’s

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rules require that a non-conforming petition be filed and then corrected. Doolin

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argues he has been diligent in pursuing his rights, and the state’s refusal to

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comply with their own rules was an extraordinary circumstance which prevented

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a timely filing.

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The Warden opposes further equitable tolling of the statute of limitations,

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asserting Doolin has not made the required showing. The Warden contends

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Doolin should seek relief from the state court for non-compliance with the

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California Rules of Court. The Warden also contends that Doolin has not shown

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that he is entitled to equitable tolling since he complied with the federal timing

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rules. The Warden asserts Doolin’s problem is that he did not comply with the

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federal exhaustion requirement by presenting his claims to the state prior to

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raising them in federal court. The Warden argues, despite Doolin’s claim to the

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contrary, that no “extraordinary circumstance” prevented his timely filing of the

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state exhaustion petition, but that it was caused by simple attorney negligence in

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failing to ensure the state petition conformed to state court rules.

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The Warden contends Doolin’s motion for stay and abeyance should be

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denied because he failed to file his state exhaustion petition within the federal

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statute of limitations. Doolin based his motion for stay and abeyance on

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uncertainty over whether the state court would find the claims in his exhaustion

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petition timely and properly filed, and thus subject to statutory tolling. Since

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Doolin did not file his exhaustion petition until after the expiration of the federal

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statute of limitations, the Warden asserts it makes no difference whether the state

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court finds the exhaustion petition to be timely, as the claims will still be time

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barred in federal court. The Warden argues Doolin has no valid basis for

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requesting a stay of federal proceedings, as even a properly-filed state petition

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cannot revive the federal statute of limitations once it has expired. See Jimenez v.

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Rice, 276 F.3d 478, 482 (9th Cir. 2001). The Warden contends Doolin’s motion for

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stay and abeyance should be denied and his unexhausted claims should be

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withdrawn from his federal petition.

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Doolin replies the filing date of his state exhaustion petition is irrelevant to

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the federal timeliness of his unexhausted claims. Doolin filed all the claims he

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intends to pursue in federal court within the AEDPA limitations period as set by

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this Court. Doolin argues the California Supreme Court plays no role in the

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federal timeliness determination under the AEDPA.

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Conversely, Doolin contends the state court imposes no deadlines for

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exhaustion petitions, but inquires whether newly-discovered claims were

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presented “as promptly as the circumstances allow,” and “without ‘substantial

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delay.’” Doolin asserts that since the state court has ordered informal briefing on

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his exhaustion petition, his unexhausted claims are at least potentially

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meritorious, and so his federal petition should be stayed under Rhines.

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Doolin disputes the Warden’s citation to Jimenez v. Rice, as inapplicable to

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his case, as the petition there contained only unexhausted claims. Doolin asserts

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his federal petition, which contains both exhausted and unexhausted claims, can

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be stayed so that there will be no need to “revive” an “expired” statute of

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limitations, since all his claims were already timely filed in this Court.

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Doolin furthers asserts that filing a state exhaustion petition after the filing

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of a federal petition does not run afoul of the statute of limitations. Doolin notes

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this was the procedural posture of Rhines, where the exhaustion petition was not

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yet filed when the state appealed the district court order staying the federal

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petition. See also Gonzales v. Wong, __ F.3d __, 2011 WL 6061514 (9th Cir. Dec. 7,

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2011) (instructing district court on remand to stay and abey federal habeas

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proceedings to allow petitioner to present his Brady claim to the state court).

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Doolin argues that his motion for stay and abeyance should be granted as

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this Court has the authority to stay his federal petition, he has good cause for no

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presenting the evidence to the state court, he has been diligent, and his

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exhaustion petition contains potentially meritorious claims.

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Attorney negligence is not an “extraordinary circumstance” on which

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equitable tolling should be granted. Lawrence v. Florida, 549 U.S. 327, 337-38

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(2007). Given the generous amount of time granted to CJA counsel to prepare

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and file the federal petition by the three prior orders granting equitable tolling, it

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is not unreasonable to presume that counsel could have filed the exhaustion

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petition one week, or even one day, prior to the expiration of the statue of

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limitations, so that any formatting problems could be timely corrected. Doolin’s

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motion for further equitable tolling is DENIED.

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However, Doolin’s argument that Rhines does not require unexhausted

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claims to be presented to a state court before the statute of limitations expires,

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only that they be presented in a timely matter to avoid unnecessary delay, is

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persuasive. Doolin asserts he presented all the claims he intends to pursue in his

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federal petition, and his petition was timely filed under the statute of limitations.

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California’s rules regarding what circumstances meet the “good cause for

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substantial delay” requirement are unclear. The state court should be allowed to

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determine if Doolin has complied with their requirements. Doolin’s motion for

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stay and abeyance of his federal petition is GRANTED.

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IT IS SO ORDERED.

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DATED:

January 17, 2012

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/s/ Anthony W. Ishii

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Chief United States District Judge

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