Doolin v. Wong

Filing 39

ORDER signed by Chief Judge Anthony W. Ishii on 10/1/2010 granting in part 25 Motion for Equitable Tolling. Doolin's federal habeas petition due by 4/27/2011. Joint Statement of Exhaustion by 5/27/2011. Case Management Conference set for 6/6/2011 at 03:00 PM in Courtroom 2 (AWI) before Chief Judge Anthony W. Ishii. (Lundstrom, T)

(DP) Doolin v. Wong

Doc. 39

1 2 3 4 5 6 7 8 9 10 11 12 13 R e s p o n d e n t. 14 15 16 17 18 19 20 21 22 23 24 25 26 O n August 17, 2010, Petitioner Keith Zon Doolin ("Doolin"), a state p r is o n e r facing capital punishment, filed a motion for equitable tolling of the oney e a r statute of limitations under the Antiterrorism and Effective Death Penalty A c t of 1996 (the "AEDPA"). A case management conference was held September 2 7 , 2010, before the Honorable Anthony W. Ishii, to discuss Doolin's motion and th e litigation schedule in this case. The hearing continued after the Warden's c o u n s e l was excused to address case budgeting issues in camera. Under 18 U .S .C . § 3599(f), ex parte consideration of funding applications requires a s h o w in g of the need for confidentiality. Since budget applications require d is c lo s u r e of matters protected by the attorney-client and/or work product p r iv ile g e s , the need for confidentiality is inherent in the budgeting process. See vs. V IN C E N T CULLEN, Acting Warden o f San Quentin State Prison, K E IT H ZON DOOLIN, P e t i t io n e r , ) ) ) ) ) ) ) ) ) ) ) C a s e No. 1:09-CV-01453-AWI-P D E A T H PENALTY CASE O r d e r Granting in Part Petitioner's M o tio n for Equitable Tolling U N IT E D STATES DISTRICT COURT E A S T E R N DISTRICT OF CALIFORNIA

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F e d .R .C iv .P . 26 (b)(3). Accordingly, budget forms and supporting d o c u m e n ta tio n are filed under seal and court proceedings, though reported, s im ila r ly are maintained under seal. A separate order filed under seal d o c u m e n ts the results of the ex parte proceedings authorizing a Phase I budget fo r this case. D o o lin first sought federal habeas corpus relief August 17, 2009, and the F e d e r a l Defender was appointed to represent him October 14, 2009. The parties a g re e d the statute of limitations ("SOL") would expire October 5, 2010, one year a fte r the denial of certiorari on Doolin's direct appeal. During the investigation o f Doolin's federal habeas petition, the Federal Defender discovered a conflict in th e ir representation which required them to withdraw, and new counsel was a p p o in te d under the Criminal Justice Act to represent Doolin on June 15, 2010. D o o lin argues his change of counsel justifies tolling the SOL for one year, to October 5, 2011. New counsel assert this amount of time is necessary to review th e record and files, familiarize themselves with the work of prior counsel, in te g r a te that into the petition, and conduct further investigation and analysis of th e two murders and four attempted murders underlying Doolin's conviction. New counsel filed a sealed declaration in support stating the tasks projected to be co m p le te d prior to filing his federal petition. New counsel also assert the court m u s t consider they are both in private practice with active caseloads. Doolin c ite s in support of his motion the Ninth Circuit's approval of seven months of to llin g in Beeler1 where lead counsel withdrew and second counsel remained on

Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1289 (9th Cir. 1 9 9 7 ), overruled on other grounds by Calderon v. United States District Court (Kelly) , 163 F .3 d 530, 530 (9th Cir. 1998) (when is a case pending for purposes of applying the A E D P A ), and later affirmed on those grounds by Woodford v. Garceau, 538 U.S. 202 (2003) (a b r o g a tin g Kelly's ruling regarding application of the AEDPA).
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th e case, arguing that one year of tolling is justified here since no prior counsel r e m a in s on his case. Doolin asserts he meets the other requirements for equitable to llin g : that he has been diligent and extraordinary circumstances beyond his c o n tr o l require tolling, see Holland v. Florida, 560 U.S. ___, 130 S.Ct. 2459, 2560 (2 0 1 0 ), and that tolling will allow him to receive effective assistance of counsel a n d will not prejudice the State. Respondent Vincent Cullen ("the Warden") asserts that new counsel for D o o lin can present all the exhausted claims from the state direct appeal and h a b e a s petition by the current deadline. Counsel can then develop any a d d itio n a l claims and seek to amend the federal petition as necessary, risking lo s in g only the "newly developed" claims if equitable tolling is not granted. Alternatively, based on the time that prior and current counsel have been a p p o in te d in this case, the Warden requests that should equitable tolling be g r a n te d , no more than six months be allowed. D o o lin rejects the Warden's proposal to simply re-title the state filings, th e n develop any additional claims and seek to amend the federal petition. Doolin asserts new counsel have a duty to ensure all viable claims and the facts s u p p o r tin g them are presented in the petition, which requires review of the r e c o r d and subsequent investigation, and the Warden's suggestion to file a p e titio n and seek amendment for additional claims overlooks the limits imposed b y Mayle v. Felix, 545 U.S. 644 (2005) (amendment only allowed after the one-year s ta tu te of limitations if the claims "relate back" to the original petition). Doolin o b s e rv e s the Warden concedes that he risks losing the newly developed claims b y seeking amendment, and asserts that when he is not at fault he should not h a v e to "risk" anything, especially where a potential claim might save his life. Doolin further contends the Warden's argument does not assert any prejudice 3

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r e s u ltin g from the proposed one-year extension, and argues the failure to grant th e extra year would seriously prejudice his right to present a comprehensive p e titio n . U n d e r 28 U.S.C. § 2241(d)(1), a state court prisoner has one-year to seek fe d e r a l habeas corpus relief from a state court judgment. The one-year period r u n s from the date on which direct review became final, and may be tolled by the filin g of a state habeas petition. 28 U.S.C. § 2254(d)(2). The United States S u p r e m e Court recently determined that the one-year statute of limitations of § 2254(d) is subject to equitable tolling, first, since it is not jurisdictional it is s u b je c t to a rebuttable presumption in favor of equitable tolling, second, because it differs from statutes where that presumption has been overcome, and third, b e c a u s e the basic purpose of the AEDPA is not undermined by equitable tolling. Holland v. Florida, supra, 560 U.S. ___, 130 S.Ct. at 2560-62. In Holland, the Supreme Court reiterated that in order to be entitled to e q u ita b le tolling, the petitioner must show "that he has been pursuing his rights d ilig e n tly , and that some extraordinary circumstance stood in his way and p r e v e n te d timely filing." Holland, ___ U.S. ___. 103 S.Ct. at 2562. The decision on w h e th e r a court should grant equitable tolling is "highly fact-dependent" and a p e titio n e r "bears the burden of showing that equitable tolling is appropriate." Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005). T h e minimum amount of equitable tolling to which Doolin would be e n title d is the time he was totally without counsel, or 27 days: 9 days from the d e n ia l of certiorari October 5, 2009, until the appointment of the Federal D e fe n d e r October 14, 2009, plus 18 days from when the Federal Defender's m o tio n to withdraw was granted May 28, 2010, until the appointment of new c o u n s e l June 15, 2010. The maximum amount of equitable tolling, which 4

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c o m p le te ly discounts the over seven months of representation by the Federal D e fe n d e r , would be 253 days (from denial of certiorari to appointment of new c o u n s e l) . B a s e d on the filings of the parties and their positions as presented at the h e a r in g , the Court determined that equitable tolling is justified in this case due to th e change in representation for Doolin. The Court found that seven months (a p p r o x im a te ly 210 days) of tolling was reasonable in light of the facts of this c a s e . Doolin's federal habeas petition is due on or before April 27, 2011. A fte r filing of the federal petition, the parties shall meet and confer for the p u r p o s e of discussing their respective positions about the exhaustion status of th e petition, and shall file a Joint Statement on Exhaustion by May 27, 2011. Should the parties be unable to agree about the exhaustion status of any claim(s) in the petition, Doolin shall file, concurrently with the joint statement, a s u p p le m e n ta l declaration setting forth where in the state filings he contends the e x h a u s tio n requirement was satisfied. A case management conference shall be h e ld June 6, 2011, at 3:00 p.m., to discuss the subsequent litigation schedule. The c o n fe r e n c e shall be held telephonically, although local counsel may elect to a p p e a r in person. Counsel for Doolin shall initiate the conference call, if n ecessary. IT IS SO ORDERED.

D A TED :

October 1, 2010 /s/ Anthony W. Ishii Chief United States District Judge

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