McCoy v. Soto

Filing 17

ORDER for Supplemental Briefing on Equitable Tolling and VACATING June 8, 2016 FINDINGS AND RECOMMENDATION 15 , signed by Magistrate Judge Erica P. Grosjean on 7/26/16: Thirty Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTHONY MCCOY,
Petitioner,

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Case No. 1:15-cv-01578-LJO-EPG-HC
ORDER FOR SUPPLEMENTAL BRIEFING
ON EQUITABLE TOLLING AND
VACATING JUNE 8, 2016 FINDINGS AND
RECOMMENDATION (ECF No. 15)

v.
JOHN SOTO,
Respondent.

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Petitioner Anthony McCoy is a state prisoner proceeding pro se with a petition for writ of

18 habeas corpus pursuant to 28 U.S.C. § 2254. On June 8, 2016, the undersigned issued findings
19 and recommendation that recommended that Respondent’s motion to dismiss be granted and the
20 petition be dismissed as untimely. (ECF No. 15). On July 8, 2016, Petitioner filed objections to
21 the findings and recommendation, arguing that he is entitled to equitable tolling because he was
22 transferred to the Administrative Segregation Unit and had no access to the law library or his
23 legal materials. (ECF No. 16).
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The statutory limitations period is subject to equitable tolling if a petitioner demonstrates

25 “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
26 circumstance stood in his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631,
27 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The Ninth Circuit has
28 recognized that a complete lack of access to a legal file may constitute an extraordinary

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1 circumstance, Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009), and that under certain
2 circumstances prison limitations on law library access may constitute an extraordinary
3 circumstance, Sossa v. Diaz, 729 F.3d 1225, 1236 (9th Cir. 2013). Given the fact-intensive
4 nature of equitable tolling claims, Sossa, 729 F.3d at 1229–30, further development of the record
5 is warranted to address this issue.
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Accordingly, the Court HEREBY ORDERS:

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1. The Findings and Recommendation issued on June 8, 2016 (ECF No. 15) is VACATED;

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2. Within THIRTY (30) days of the date of service of this order, Respondent shall file a

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response addressing Petitioner’s claim of equitable tolling; and
3. Within THIRTY (30) days of the date of service of the Respondent’s response, Petitioner
shall file a reply.

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IT IS SO ORDERED.
Dated:

July 26, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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