Maury v. Martel

Filing 177

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 04/20/20 RECOMMENDING that petitioner's motion for an extension of the stay of these proceedings 173 be granted and these proceedings be stayed through 8/28/20. Petitioner's motion for equitable tolling of the statute of limitations 173 be granted for a 90 day period starting 3/11/20. Motion 173 referred to Judge William B. Shubb. Objections due within 30 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT EDWARD MAURY,

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Petitioner,

No. 2:12-cv-1043 WBS DB
DEATH PENALTY CASE

v.
RONALD DAVIS,

FINDINGS AND RECOMMENDATIONS

Respondent.

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Petitioner is a condemned state prisoner proceeding with a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. This case is currently stayed through May 30, 2020 for the

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purpose of permitting petitioner’s newly-appointed counsel an opportunity to investigate potential

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new claims. (See Apr. 1, 2020 Order (ECF No. 172).) On April 3, petitioner moved for an

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extension of the stay through August 28, 2020 and for equitable tolling of the statute of

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limitations for a 170-day period. (ECF No. 173.) Respondent does not oppose the extension of

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time but agrees to only 90 days of equitable tolling. (See ECF No. 174.)

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Petitioner is represented by attorneys in the Office of the Federal Public Defender for the

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District of Nevada (“FPD”). The FPD asserts that the investigation of potential new claims

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requires travel to California and other states to conduct in-person interviews. However, the FPD

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is currently unable to accomplish these tasks due to shut-downs and social distancing

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requirements instituted to contain the spread of COVID-19. On March 11, 2020, the World
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Health Organization (“WHO”) declared COVID-19 a global pandemic.1 The Governor of

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California issued a state-wide order, effective March 19, that directs “all individuals in the State

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of California to stay at home or at their place of residence” except as outlined in the order. The

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order is in place “until further notice.”2 On March 31, the Governor of Nevada issued a similar

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state-wide, stay-at-home order. That order expires April 30, 2020, but may be renewed.3 The

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President declared a state of emergency on March 13, 2020 for the country as a whole.4 He also

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recommended that all residents of the United States practice “social distancing” through April 30,

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2020.5

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Respondent does not oppose an extension of the stay of these proceedings for 90 days,

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through August 28, 2020. This court finds good cause for an extension of the stay based on the

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limitations on the FPD’s ability to conduct investigations as a result of the COVID-19 pandemic.

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Petitioner also seeks equitable tolling of the statute of limitations for a 170-day period,

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starting March 11, 2020, when the WHO declared COVID-19 a global pandemic, through August

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28, 2020. The party asserting equitable tolling bears the burden of establishing two elements: (i)

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that he has been pursuing his rights diligently, and (ii) that some extraordinary circumstance stood

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in his way. Holland v. Florida, 560 U.S. 631, 649 (2010); Espinoza-Matthews v. California, 432

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F.3d 1021, 1026, n.5 (9th Cir. 2005) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).

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WHO Director-General’s Opening Remarks at The Media Briefing On COVID-19, World
Health Organization, https://www.who.int/dg/speeches/detail/who-director-general-s-openingremarks-at-the-media-briefing-on-covid-19---11-march-2020.

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California Coronavirus (COVID-19) Response, CA.GOV, https://covid19.ca.gov/stay-homeexcept-for-essential-needs/.
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http://gov.nv.gov/News/Emergency_Orders/2020/2020-03-31_-_COVID19_Declaration_of_Emergency_Directive_010_-_Stay_at_Home_Order/.

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Proclamation On Declaring A National Emergency Concerning the Novel Coronavirus Disease
(COVID-19) Outbreak, The White House (Mar. 13, 2020),
https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergencyconcerning-novel-coronavirus-disease-covid-19-outbreak/.
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Paul LeBlanc, Jason Hoffman and Kevin Liptak, CNN, Trump Extends Federal Social
Distancing Guidelines to April 30 https://www.cnn.com/2020/03/29/politics/trump-coronaviruspress-conference/index.html
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The emergence of the COVID-19 pandemic and the resulting restrictions on social interactions

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and travel certainly qualify as an extraordinary circumstance. See Cowan v. Davis, No. 1:19-cv-

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00745-DAD, 2020 WL 1503423 (E.D. Cal. Mar. 30, 2020) (granting motion for equitable tolling

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of the habeas statute of limitations based on COVID-19). Respondent does not challenge that

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conclusion. Further, respondent does not challenge petitioner’s claims that he has been diligently

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pursuing his rights; and this court finds no basis to conclude otherwise. The only question is the

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length of time petitioner is entitled to equitable tolling.

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The district court has broad discretion to stay proceedings. Landis v. North American

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Co., 299 U.S. 248, 254–55 (1936). Equitable tolling, on the other hand, is limited to rare and

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exceptional circumstances and typically applied sparingly. Cadet v. Florida Department of

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Corrections, 853 F.3d 1216, 1221 (11th Cir. 2017). The COVID-19 restrictions on social

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interactions and travel are currently set to expire for the State of Nevada and country-wide on

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April 30, 2020. There is no expiration date for the restrictions in the State of California.

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However, it is worth noting that the Chief Judge of this district recently extended its courthouse

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closures through May 31, 2020. General Order No. 617.

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This court agrees with respondent that, at this time, no more than a 90-day period of

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equitable tolling is justified. Cf. Cowan, 2020 WL 1503423, at *3 (court grants equitable tolling

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of statute of limitations for 90 days due to COVID-19). Petitioner fails to establish that the

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extraordinary circumstances hindering the FPD’s ability to conduct investigations will last longer

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than that. Petitioner may certainly seek an additional period of equitable tolling at a later date if

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the restrictions on travel and social interactions continue.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Petitioner’s motion for an extension of the stay of these proceedings (ECF No. 173) be

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granted and these proceedings be stayed through August 28, 2020.
2. Petitioner’s motion for equitable tolling of the statute of limitations (ECF No. 173) be
granted for a 90-day period starting March 11, 2020.
These findings and recommendations will be submitted to the United States District Judge
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty days after
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being served with these findings and recommendations, any party may file written objections with

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the court and serve a copy on all parties. The document should be captioned “Objections to

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Magistrate Judge's Findings and Recommendations.” Any response to the objections shall be

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filed and served within ten days after service of the objections. The parties are advised that

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failure to file objections within the specified time may result in waiver of the right to appeal the

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district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: April 20, 2020

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DLB:9
DB/orders-capital/maury stay eot.fr

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