Maury v. Martel

Filing 186

ORDER signed by Senior Judge William B. Shubb on 10/2/2020 ADOPTING the findings and recommendations filed 8/28/2020 in full; GRANTING Petitioner's motion to stay these proceedings and equitably toll the statue of limitations (ECF No. 179 ); STAYING these proceedings through 11/ 26/2020; and Petitioner is entitled to equitable tolling of the statute of limitations for an additional 90 days through 9/7/2020. (Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT EDWARD MAURY,

No. 2:12-cv-1043 WBS DB

Plaintiff,

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v.

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DEATH PENALTY CASE

RONALD DAVIS,

ORDER

Defendant.

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Petitioner is a condemned state prisoner proceeding

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through counsel with a petition for writ of habeas corpus under

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28 U.S.C. § 2254.

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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local

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Rule 302.

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The matter was referred to a United States

On August 28, 2020, the Magistrate Judge filed findings

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and recommendations herein which were served on all parties and

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which contained notice to all parties that any objections to the

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findings and recommendations were to be filed within thirty days.

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Respondent filed objections to the findings and recommendations.

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Specifically, respondent argues that petitioner’s

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motion for equitable tolling is premature under Smith v. Davis,

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953 F.3d 582 (9th Cir. 2020), and that Smith overruled Calderon

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v. U.S. Dist. Court for the Cent. Dist. Of Cal. (Beeler), 128

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F.3d 1283, 1285 (9th Cir. 1997), which upheld prospective

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equitable tolling of a time limitation.

(See Request for

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Reconsideration at 3–7.) (ECF No. 184.)

However, the question of

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prospective tolling of the Antiterrorism and Effective Death

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Penalty Act (AEDPA) statute of limitation was not before the

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court in Smith.

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4698968 at *4 (E.D. Cal. Aug. 13, 2020).

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not expressly overrule or even mention Beeler, and is not

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irreconcilable with that decision.

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Cowan v. Davis, No. 1:19-CV-00745-DAD, 2020 WL
Moreover, Smith does

Id.

Thus, the court rejects respondent’s contention that

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the Magistrate Judge’s order is clearly erroneous or contrary to

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law.

See Fed. R. Civ. P. 72(a); see also Local Rule 303(f).

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In accordance with the provisions of 28 U.S.C. §

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636(b)(1)(C) and Local Rule 304, this court has conducted a de

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novo review of this case.

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file, the court finds the findings and recommendations to be

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supported by the record and by proper analysis.

Having carefully reviewed the entire

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IT IS THEREFORE ORDERED that:

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1.

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The findings and recommendations filed August 28,

2020 are adopted in full;

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2.

Petitioner’s motion to stay these proceedings and

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equitably toll the statue of limitations (ECF No. 179) is

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granted;
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These proceedings are stayed through November 26,

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Petitioner is entitled to equitable tolling of the

2020; and

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statute of limitations for an additional 90 days through

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September 7, 2020.

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Dated:

October 2, 2020

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