Doolin v. Wong
Filing
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ORDER DENYING Without Prejudice Petitioner's 59 Motion for Interim Equitable Tolling and VACATING Hearing on July 6, 2011, signed by Chief Judge Anthony W. Ishii on 6/2/2011. (Marrujo, C)
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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 Without Prejudice
Petitioner’s Motion for Interim
Equitable Tolling and Vacating
Hearing on July 6, 2011
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On March 9, 2011, the Phase I-B Case Management and Budget Plan for
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Petitioner Keith Zon Doolin (“Doolin”) was approved. The Phase 1-B Budget
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includes tasks necessary to prepare and file Doolin’s federal habeas petition,
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extends through the determination of exhaustion and abeyance, if necessary, or
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the filing of the answer, currently scheduled to extend through August, 2011.
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Doolin first sought federal habeas corpus relief August 17, 2009, and the
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Federal Defender was appointed to represent him October 14, 2009. The parties
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agreed the statute of limitations (“SOL”) would expire October 5, 2010, one year
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after the denial of certiorari on Doolin’s direct appeal. During the investigation
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of Doolin’s federal habeas petition, the Federal Defender discovered a conflict in
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their representation which required them to withdraw, and new counsel was
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appointed under the Criminal Justice Act to represent Doolin on June 15, 2010.
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The Court found that seven months of equitable tolling was reasonable in
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light of the facts of this case. The one year statute of limitations for Doolin’s
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federal habeas petition was extended to April 27, 2011. The parties subsequently
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stipulated to additional equitable tolling to July 20, 2011, based on the
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unexpected illness of one of Doolin’s counsel.
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After the second phase of Doolin’s pre-petition budget was approved, the
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United States Supreme Court issued Cullen v. Pinholster, 563 U.S. ___, 131 S. Ct.
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1388 (April 4, 2011), which limited the evidence a federal court can consider in
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determining whether a petitioner has met the requirements of 28 U.S.C.
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§ 2254(d)(1). On April 7, 2011, an order was issued in this case, suspending all
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work on issues affected by Pinholster. An order clarifying the information needed
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from Doolin to inform reconsideration of the Phase I-B Budget in light of
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Pinholster and setting a briefing schedule, was filed May 18, 2011. Doolin’s
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supplemental brief regarding his Phase 1-B budget is due June 15, 2011, and his
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motion for additional equitable tolling of the statute of limitations shall be filed
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within 20 days of the order amending his Phase 1-B Budget. The Warden’s
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opposition, if any, to additional tolling shall be filed within 20 days of Doolin’s
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motion, and Doolin’s reply shall be filed within 10 days of any opposition.
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Noting this briefing schedule will extend beyond the current deadline for
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filing his federal petition, and arguing the interruption in pre-petition
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investigation prevents the timely filing of his petition, Doolin filed a motion for
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interim equitable tolling, seeking additional tolling of 30 days or such other date
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as the Court may set.
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Doolin argues he has been diligently pursuing his rights, and that the
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Pinholster opinion and the subsequent work suspension of more than five weeks
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are extraordinary circumstances which will prevent him from filing his petition
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by July 20. Doolin’s counsel observe that if he were still represented by the
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Federal Defender’s Office, the fact-development would not have been suspended
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by Court order and he would have been able to timely file his petition.1 Lastly,
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Doolin asserts he will be seeking to develop facts supporting unexhausted claims,
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so the petition cannot be prepared by the current due date.
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The Warden opposes additional interim tolling (and by implication any
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further equitable tolling), asserting that Doolin has not shown he was entitled to
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further tolling. First, the Warden disputes that Pinholster constitutes an
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extraordinary circumstance preventing timely filing of the petition. The Warden
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argues Doolin can present all his exhausted claims by the current deadline. The
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Warden asserts that if Pinholster has any effect, it is to make the filing of a timely
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petition easier because federal review of exhausted claims is limited to the record
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that was before the state court, so that no further investigation or factual
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development is necessary before presenting those claims in a federal petition.
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Second, the Warden disputes Doolin’s claim that the order suspending fact
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development for five weeks prevents timely filing, asserting that Pinholster has
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made the need for such fact development “suspect.” The Warden asserts that
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Doolin can file all his currently developed claims, both exhausted and
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unexhausted, by the current deadline, and that any later-developed claims could
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be raised in an amended petition if they relate back to the original petition or are
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based on “newly discovered” facts. The Warden argues the development of facts
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to support unexhausted claims may be unnecessary, as late-developed claims
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would be barred as untimely. See Walker v. Martin, 562 U.S. __, 131 S. Ct. 1120
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1131 (2010) (finding California’s timeliness rule an adequate and independent
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This ignores the possibility that the issuance of Pinholster also might have
caused an interruption in the fact development by the Federal Defender.
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state procedural ground).
Doolin replies the Warden made almost the same contention, that he can
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timely present all his exhausted claims prior to the deadline, in opposition to the
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first request for equitable tolling. This argument was implicitly rejected by the
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first grant of equitable tolling, and Doolin contends it should be rejected again.
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Doolin asserts the Warden’s reliance on Pinholster as limiting the petition to facts
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developed by an incompetent trial counsel and underfunded state habeas
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counsel, is misplaced. Doolin observes the Pinholster majority conceded that state
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prisoners may sometimes submit new evidence in federal court (although the
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statute is designed to strongly discourage them from doing so).
Doolin contends the Warden’s argument that new claims would be barred
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as untimely, is misleading. Doolin argues that California law requires that
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habeas petitions be filed “as promptly as the circumstances allow.” Here, Doolin
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contends he would be returning to state court with a second habeas petition just
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two years after the 2009 denial of his first state habeas petition, and will be able to
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justify his failure to raise the new claims at an earlier date.
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Finally, Doolin asserts the Warden fails to acknowledge the United States
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Supreme Court has authorized tolling as an equitable measure. See Holland v.
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Florida, 560 U.S. __, 130 S. Ct. 2459, 2460 (2010). Doolin observes the Court has
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already found the change of counsel justified tolling the statute of limitations.
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Counsel for Doolin note Pinholster requires an “unanticipated and inordinate”
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number of hours to revisit budget issues, which when added to the cessation of
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work order and the pending additional briefing regarding the development of
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additional facts in this pre-petition phase, has directly prevented filing
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constitutionally adequate federal and state exhaustion petitions by July 20, 2011.
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Counsel for Doolin dispute the Warden’s characterization that they are
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seeking “to file a habeas petition at such point in time that counsel deem
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themselves satisfied that all pre-habeas investigation has been completed.”
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Counsel for Doolin contend the Court has ultimate control over how much fact
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development may occur, and “has already significantly restricted counsel’s
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efforts,” prior to requiring further justification in light of Pinholster and fixing
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new limits on pre-petition fact development. To the extent that fact development
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is permitted, counsel assert they must have time to accomplish it and plead it as
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the basis for Doolin’s claims. Doolin argues the circumstances of his case are
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extraordinary, beyond his control, and justify interim equitable tolling until the
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Court can make a final equitable tolling decision.
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Doolin’s supplemental briefing regarding his Phase 1-B budget is due by
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June 15, 2011. It is the Court’s intent to issue the order regarding the amended
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Phase 1-B budget by June 17, 2011. Doolin’s request for interim tolling of 30 days
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from this date would be within the current SOL, and as such is denied without
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prejudice and the hearing set for this motion is vacated. It is unclear at this point
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the extent of work which will be justified during the pre-petition period. An
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expedited briefing schedule regarding further equitable tolling is established.
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Doolin’s motion is due June 28, 2011. The Wardens’ opposition is due July 8,
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2011, and Doolin’s reply is due July 13, 2011.
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IT IS SO ORDERED.
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DATED:
June 2, 2011
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/s/ Anthony W. Ishii
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Chief United States District Judge
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