Clifton Perry v. Acting Warden Michael Martel

Filing 34

ORDER GRANTING 27 Motion for Equitable Tolling, signed by Chief Judge Anthony W. Ishii on 06/27/2012. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CLIFTON PERRY,

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Petitioner,
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vs.
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KEVIN CHAPPELL, as Acting Warden of San )
Quentin State Prison,
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Respondent.
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_______________________________________ )

Case No. 1:11-cv-01367 AWI
DEATH PENALTY CASE
ORDER GRANTING PETITIONER’S
MOTION FOR EQUITABLE TOLLING
DATE:
June 25, 2012
Courtroom
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ORAL ARGUMENT WAIVED

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Petitioner Clifton Perry (“Perry”) moves for equitable tolling of the one-year statute of limitations

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under 28 U.S.C. § 2244(d) by 60 days beyond the current date of July 27, 2012. His primary justification

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is the need allow his retained ballistics expert to perform ballistics testing to support his claim that trial

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counsel was ineffective for not retaining a ballistics expert. Testing by the ballistics expert must await

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a decision by the Kings County Superior Court on Perry’s pending motion for release of evidence.

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Respondent Kevin Chappell, as Acting Warden of San Quentin State Prison (the “Warden”) opposes the

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present motion. The State of California (representing the same interests as the Warden herein) opposes

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Perry’s motion before the Kings County Superior Court.

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I.

Background

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Perry’s conviction and sentence were affirmed by the California Supreme Court on April 24,

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2006 for the July 9, 1995 murder of Saeed Nasser, the 47-year old owner of a convenience store in

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Hanford. People v. Perry, 38 Cal. 4th 302 (2006). Based on the testimony of an officer at the scene of

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the shooting about bullet trajectory, the trial prosecution theory was, in part, that Perry shot the victim

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multiple time in cold blood. Perry’s theory is that he emptied his gun randomly throughout the store
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after being startled by the victim as a result of his (Perry’s) underlying stress, hypervigilance, and

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dissociation.

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Perry’s conviction became final on July 27, 2011 when his state habeas petition, filed October

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10, 2005, was denied. Perry commenced this action on August 16, 2011 with requests for appointment

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of counsel, to proceed in forma pauperis, and a for a stay of execution. The first two requests were

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granted and the stay was denied without prejudice on August 18, 2011.

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recommendation for the Eastern District of California Selection Committee, the Court appointed CJA

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panel attorneys D. Jay Ritt and Verna Wefald as Perry’s attorneys of record on October 4, 2011. The

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Court approved a Phase I budget on November 7, 2011 and a Phase II budget on December 21, 2011,

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After receiving a

as amended June 11, 2012.

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In Phase I Mr. Ritt and Ms. Wefald spent the allotted several weeks obtaining and reviewing the

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files and pleadings so they could determine what work needed to be accomplished in order to present

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a cogent briefed petition. In Phase II, which commenced on December 1, 2011, the Court approved six

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categories of ancillary service providers, four of which have been utilized by Mr. Ritt and Ms. Wefald.

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Those four ancillary service providers are: a paralegal, an investigator, a mitigation specialist, and

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ballistics expert, Mr. Bryan Burnett. The June 11, 2012 amended budget provided more time for Perry’s

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investigator to interview and obtain statements from 19 witnesses who had not been interviewed

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previously, but which Perry’s attorneys have identified as important for mitigation issues.

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II.

Facts Relevant to the Present Motion

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Mr. Ritt’s billing statements disclose that he contacted Mr. Burnett December 1, 2011, January

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27, 2012, February 2, 2012, and April 11, 2012. Exhibit A to motion before the Kings County Superior

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Court (attached to Perry’s moving papers herein) is a letter over Mr. Burnett’s signature to Mr. Ritt dated

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May 8, 2012, in which Mr. Burnett asks to conduct a nondestructive ballistics examination of specified

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trial exhibits in order to “reconstruct” the crime scene in support Perry’s advanced theory about shooting

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randomly.

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On May 31, 2012, Perry’s attorneys transmitted a draft of the proposed state motion to counsel

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for the Warden herein and the State of California in state proceedings, Deputy Attorney General

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Jennevee H. DeGuzman. (Exhibit B to the state motion.) On June 4, 2012, Ms. DeGuzman responded
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that the Warden would oppose the state motion as premature until this Court finds that the decisions of

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the California Supreme Court were unreasonable under 28 U.S.C. § 2254(d). (Exhibit C to the state

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motion.) The Superior Court set the hearing date for July 9, 2012, and Perry filed the state motion on

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June 7, 2012. The opposition of the Warden/State is not due until July 2, 2012.

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III.

Standard for Granting Equitable Tolling

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The parties agree that the Supreme Court decision in Holland v. Florida, 130 S. Ct. 2459 (2010),

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is controlling. Under Holland, a petitioner is entitled to equitable tolling upon a showing: “(1 ) that he

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has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way

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an prevented timely filing.” Id. at 2462 (quoting Pace v. DeGuglielmo, 544 U.S. 408, 418 (2005);

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internal quotation marks omitted). Holland further notes that a decision to grant equitable tolling must

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be made on a “case-by-case” basis and that courts entertaining such motions should exercise “flexibility”

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to avoid “mechanical rules.” Id. at 2563.

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IV.

Perry’s Argument

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Perry gives two reasons justifying equitable tolling. The first is the delay of 69 days in the

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appointment of counsel. The second is the fact that his ballistics expert needs to examine the trial

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exhibits before rendering an opinion. He argues he has satisfied the requirements for equitable tolling

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under Holland.

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With respect to diligence, Perry points out that his attorneys have thoroughly reviewed and

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digested the record. In conducting the record review, his attorneys have identified 19 important

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witnesses yet to be interviewed, and have determined that the services of a ballistics expert is necessary

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to factually support the claim of ineffective assistance of counsel as to trial evidence adduced about the

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manner in which the victim was shot.

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Regarding the “extraordinary circumstance” element, Perry argues the date for the hearing on the

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motion pending before the Kings County Superior Court, that is, July 9, 2012, was the earliest he could

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obtain from the Court. In addition, he notes that due to some emotional difficulties he has experienced

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requiring medical attention, his attorneys have experienced difficulty communicating with him over the

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last several months.

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V.

The Warden’s Opposition

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The Warden first points out the policy reasons underlying the statute of limitations, that is to

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reduce delay, encourage petitioners to seek relief from state courts in the first instance, and protect the

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finality of state court judgments. In making this argument, the Warden stresses that petitioners are to

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perfect their cases before reaching federal court, and not simply make a second-rate effort at the state

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level. Next, the Warden complains that the Court’s view of Perry’s diligence, as stated in the order

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granting Perry’s application to shorten time for hearing on the within motion, is based in part on

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confidential documents. He contends that if the Court is basing case management and legal decisions

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on confidential submissions he should be given an opportunity to be heard on the matters therein

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presented. Finally, he argues that Perry has not demonstrated “extraordinary circumstances” mandated

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to trigger equitable tolling.

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This latter argument is based on the premise that in light of Cullen v. Pinholster, 131 S. Ct. 1388

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(2011), there should be no factual development of new claims or existing claims because the federal

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petition should not exceed the allegations and legal arguments presented on state habeas. Thus,

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whatever investigation Perry is conducting, including ballistics testing, does not and cannot amount to

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an extraordinary circumstance justifying tolling.

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VI.

Perry’s Reply

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In reply, Perry makes several arguments. First, he points out that a 60-day extension of the

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limitations period would not prejudice the Warden. To the contrary, he argues, the extra time requested

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will enable his attorneys to streamline the already exhausted claims presented in unusually lengthy state

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court pleadings. Second, he emphasizes that his deteriorating mental health has had a negative impact

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on attorney-client communication, thus rendering investigation more difficult. He identifies this point

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as an extraordinary circumstance. Third, he states that his litigation team has exerted great effort to

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obtain numerous missing documents from the Kings County Superior Court, largely through the

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diligence of the paralegal assigned to the case. He also identifies this fact as an extraordinary

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circumstance. Finally he notes that the Court already has authorized funding for ballistics expertise in

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the case.

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VII.

Discussion

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In the June 11, 2012 order shortening time (doc. 30), the Court already has found Perry diligent

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in the prosecution of his claims. The Warden’s objection that this finding was in part predicated on

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confidential submissions is well taken. The Background section herein outlines the relevant proceedings

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which inform the Court’s view of Perry’s diligence. In all other respects, the Court is unpersuaded by

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the Warden’s legal arguments.

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The Court also is unpersuaded by Perry’s argument that the Warden will suffer no prejudice on

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account of the requested 60-day tolling. Even taking into account Perry’s argument that the extra time

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will benefit the Warden as well as the Court because it will enable his attorneys to prepare a more

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concise brief, his point is inapposite to the standard for granting equitable tolling. Prejudice is not a

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factor in the analysis at all. Moreover the references to his mental and emotional impairments which

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complicate attorney client communications are too vague to justify a finding of extraordinary

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circumstances.

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The Court is persuaded, however, that efforts of Perry’s litigation team, particularly the retained

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paralegal, to reconstruct the trial record in light of missing files at the Kings County Superior Court

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amply supports the previous finding of diligence. The fact that these efforts were necessary also is an

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extraordinary circumstance wholly beyond Perry’s control. Now that the files and evidence has been

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located and reviewed, it is logical to the Court that Perry’s ballistics expert would now have access to

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them in order to provide a factual basis for his analysis. Perry’s present attorneys are new to the case

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and have had to immerse themselves in a lengthy record. That they did not discover missing exhibits

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and other trial materials immediately upon their appointment does not vitiate the Court’s finding of

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diligence or diminish the importance of previously unknown evidence to the concept of extraordinary

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circumstances. The final element of extraordinary circumstances is the Warden’s opposition to Perry’s

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efforts to gain access to the trial exhibits in the Kings County Superior Court. If the Warden had

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stipulated to the release of the exhibits, the 39-day delay between the email from Mr. Ritt to Ms.

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Jennevee on May 31, 2012, until the scheduled hearing date on July 9, 2012, would not have transpired.

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Both diligence and extraordinary circumstances are present.

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The remaining issue to be resolved is the Warden’s claim that Pinholster proscribes all pre-

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petition factual development. To gain insight as to whether Mr. Burnett should be permitted to examine

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and test the trial evidence to factually develop the theory about the manner in which Perry killed the

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victim, the Court has turned to the state pleadings.

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In Claim VI A of the state petition, Perry argued ineffective assistance of trial counsel for failure

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to adequately investigate and challenge the forensic evidence presented about bullet trajectories that

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supported the prosecution theory of intentional killing. Separately, Claim VI A also presents a claim

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of ineffective assistance of counsel for trial counsel’s failure to retain and introduce testimony of a

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ballistics expert. In the body of the state petition argument on the missing ballistics expert sub-claim,

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Perry cites to several treatises authored by different forensic experts. In the informal response, the State

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addressed this latter argument, labeling it simply as insufficient because Perry provided “no proffer from

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an expert to undermine the testimony provided at trial.” Claim VI was denied on the merits in the

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Supreme Court’s ruling on the state petition. Apparently, the State’s argument was well-taken by the

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state court.

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On federal habeas, federally appointed counsel decided soon after their appointment that a

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ballistics expert was necessary to provide the proffer state habeas counsel did not. Limited pre-petition

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investigation of this claim is available. Although under Pinholster, the Court will not and did not

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authorize pre-petition factual development of fully exhausted claims, pre-petition investigation may be

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authorized and was authorized in the present case where additional factual bases exist to augment

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partially exhausted state claims. See Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008). Essentially,

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the Warden is now opposing Perry’s efforts to do exactly what the State claimed he should have done

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during the state proceedings. The Warden further suggests this failure may be attributable to a “second-

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rate effort” in developing claims on state habeas. The fact that state habeas counsel did not utilize his

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limited funding for a ballistics expert during state habeas proceedings, however, in no way validates the

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Warden’s suggestion that Perry’s state habeas petition might be considered to be a “second-rate effort.”

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To the contrary, the state petition is an extremely detailed and lengthy document. The more likely reason

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a ballistics expert was not utilized on state habeas is the limitation on state funding. The Court as well

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as both parties are aware that state funding for habeas claims development is limited and invariably
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exhausted. As guided by the limitations of Pinholster, the Court has authorized the investigation now

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under consideration and affirms the propriety of that authorization.

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VIII. Order

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Having authorized funds for the ballistics expert, and in light of the set backs members of Perry’s

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litigation team have encountered in gaining access to relevant trial exhibits to complete his investigation,

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the Court grants limited equitable tolling for 39 days. This time frame represents the delay between

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Perry’s notifying the Warden he would be filing his motion to release exhibits in the Kings County

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Superior Court and the hearing date.

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IT IS SO ORDERED.

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Dated:

June 27, 2012
/s/ Anthony W. Ishii
Anthony W. Ishii
United States District Judge

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