Salcido v. Wong

Filing 27

ORDER GRANTING 20 MOTION FOR EQUITABLE TOLLING; VACATING HEARING. Signed by Judge Maxine M. Chesney on December 13, 2011. (mmcsec, COURT STAFF) (Filed on 12/13/2011)

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UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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RAMON BOJORQUEZ SALCIDO,

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Case Number 09-00586 MMC

Petitioner,

DEATH-PENALTY CASE

v.
MICHAEL MARTEL,
Acting Warden of San Quentin State Prison,

ORDER GRANTING MOTION FOR
EQUITABLE TOLLING; VACATING
HEARING

Respondent.

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Petitioner is a condemned inmate at San Quentin State Prison. On October 13, 2011, he

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filed a Motion for Equitable Tolling. Respondent filed an Opposition on November 9, 2011. On

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November 28, 2011, Petitioner filed a Reply. For the reasons listed below, the Court grants

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Petitioner’s motion.
Background

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On October 30, 1990, Petitioner, a citizen of Mexico, was convicted of six counts of first

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degree murder, one count of second degree murder and two counts of attempted premeditated

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murder. The jury also found true the multiple murder special circumstance. He was sentenced

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to death on December 17, 1990.

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ORDER GRANTING MOTION FOR EQUITABLE TOLLING

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Evidence at trial established that on April 14, 1989, Petitioner drove his three young

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daughters, Sofia, Carmina and Theresa to an isolated gulch in Sonoma County, where he cut

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their throats, resulting in the deaths of Sofia and Carmina. Petitioner then drove to his mother-

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in-law’s house and killed her and her two daughters. He returned home and shot his wife. He

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then drove to his workplace at Grand Cru Vineyard, where he shot to death his supervisor.

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Petitioner subsequently drove to the residence of another supervisor, whom he shot and injured.

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The Supreme Court of California affirmed his conviction and sentence on June 30, 2008.

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People v. Salcido, 44 Cal. 4th 93 (2008). The United States Supreme Court denied certiorari on

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January 21, 2009.

Salcido v. California, 129 S. Ct. 1013 (2009). The Supreme Court of

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California denied Petitioner’s state habeas petition on May 20, 2009. In re Salcido, Cal. Supr.

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Ct. No. S091159.

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Petitioner initiated the present federal capital habeas action on February 9, 2009, when he

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asked the Court to appoint counsel and to stay his execution pending the completion of this

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action. The next day, the Court granted Petitioner’s requests and referred the matter to the

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Court’s Selection Board for recommendation of counsel to represent him.

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On May 19, 2010, not yet having been appointed counsel, Petitioner filed a pro se habeas

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petition consisting entirely of state court pleadings, as well as a Motion for Equitable Tolling and

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for a Stay of Federal Litigation Until Appointment of Counsel. On June 9, 2010, the Court

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denied his request for tolling without prejudice to refiling once counsel was appointed, and

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stayed all proceedings until the date of such appointment. Petitioner was appointed counsel on

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August 10, 2011.

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By the instant motion, Petitioner requests the statute of limitations be tolled from May

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20, 2009, the date on which the Supreme Court of California denied his state habeas petition,

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until August 10, 2011, the date on which federal habeas counsel was appointed. Such tolling

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will give Petitioner one year, until August 10, 2012, to file a finalized petition,1 which petition

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would replace the placeholder petition Petitioner filed on May 19, 2010. Respondent opposes

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In capital habeas actions, “[t]he term ‘finalized petition’ shall refer to the petition filed by
retained or appointed counsel. . . .” Habeas L.R. 2254-28(a).

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ORDER GRANTING MOTION FOR EQUITABLE TOLLING

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this request.

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Discussion
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), federal habeas

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petitions submitted by prisoners challenging state court judgments must generally be filed within

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one year of the date on which the state judgment becomes final upon conclusion of direct review.

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28 U.S.C. § 2241(d)(1)(A). A state court judgment becomes final when the United States

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Supreme Court denies certiorari. Jimenez v. Quarterman, 555 U.S. 113, 119 (2009). AEDPA’s

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one-year limitations period is statutorily tolled however, during the pendency of a properly filed

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application for post-conviction or other collateral review in state court. 28 U.S.C. § 2244(d)(2).

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In Petitioner’s case, the United States Supreme Court denied his petition for a writ of

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certiorari on January 21, 2009, and the Supreme Court of California denied his state habeas

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petition on May 20, 2009. His limitations period began to run on May 20, 2009.

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The Supreme Court of the United States has held that “the timeliness provision in the

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federal habeas corpus statute is subject to equitable tolling.” Holland v. Florida, 560 U.S. ___,

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130 S. Ct. 2549, 2554 (2010). A federal habeas petitioner “is entitled to equitable tolling only if

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he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary

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circumstance stood in his way and prevented timely filing.” Id. at 2562 (internal quotation and

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citation omitted).

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An indigent capital habeas petitioner has a statutory right to counsel. 18 U.S.C.

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§ 3599(a)(2). This right includes “a right to legal assistance in the preparation of a habeas

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corpus application.” McFarland v. Scott, 512 U.S. 849, 856 (1994). An attorney’s assistance in

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preparing a capital habeas petition is crucial, owing to the complex nature of capital habeas

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proceedings and the seriousness of the death penalty. Id. at 855–56. In particular, “the right to

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counsel necessarily includes a right for that counsel meaningfully to research and present a

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defendant’s habeas claims.” Id. at 858. In capital cases, the Ninth Circuit has found equitable

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tolling warranted in cases where circumstances beyond an inmate’s control effectively deprived

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him of his statutory right to counsel. See Calderon v. United States District Court (Beeler), 128

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F.3d 1283, 1287-89 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United
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ORDER GRANTING MOTION FOR EQUITABLE TOLLING

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States District Court (“Kelly V”), 163 F.3d 530 (1998) (en banc) (holding statute equitably

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tolled where petitioner’s lead attorney moved out of state and made it impossible for replacement

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attorney to file petition within statutory limits). When a condemned prisoner has requested

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counsel and counsel is not appointed until after the deadline for filing a timely petition has

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passed, the lack of counsel is an extraordinary circumstance that stands in the prisoner’s way and

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prevents the timely filing of a petition that has been prepared with the assistance of counsel,

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which is the petition that the prisoner has a statutory right to file. See Smith v. Ayers, No. 3-4-

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cv-3436-CRB (N.D. Cal. Jan. 8, 2009); Stanley v. Martel, No. 3-7-cv-4727-EMC (N.D. Cal. July

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26, 2011); Hoyos v. Wong, No. 3-9-cv-388-L-NLS, 2010 WL 596443, at *4–*5 (S.D. Cal. Feb.

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16, 2010). Indeed, “were the Court to hold otherwise, a capital habeas petitioner’s right to

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counsel would be thoroughly eviscerated.” Smith, slip. op. at 3.

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Such is the case with Petitioner, for whom the Court was unable to appoint counsel until

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more than one year after the limitations period otherwise would have expired. In addition,

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Petitioner “has been pursuing his rights diligently,” see Holland, 130 S. Ct. at 2562, as evidenced

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by the fact that he initiated the present action and invoked his right to counsel approximately

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four months before his limitations period began to run, see Hoyos, 2010 WL 596443, at *5. He

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also filed a pro se petition compiled from state court pleadings, and did so before the limitations

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period ended. Accordingly, Petitioner is entitled to equitable tolling.

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As to the length of the period to be tolled, the Court finds the extraordinary complexity of

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this case warrants tolling for a period of one year. The record of the trial alone constitutes

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ninety-nine volumes of reporter’s transcripts. The investigation of Petitioner’s crimes, together

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with the trial, involved a number of foreign, federal, state and local law enforcement and

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governmental agencies, thus expanding the scope of investigation preparatory to the filing of his

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federal habeas petition. The distance between counsel’s location, Southern California, and the

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areas where much of the investigation is intended to take place, Northern California and Mexico,

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further adds to the time needed to prepare the petition. Under such circumstances, the Court

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finds Petitioner will require a year from counsel’s appointment to prepare and file a finalized

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petition.
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ORDER GRANTING MOTION FOR EQUITABLE TOLLING

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Respondent contends federal habeas review of Petitioner’s conviction and sentence is

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effectively barred by Pinholster. Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388 (2011).

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Pinholster is inapposite. Pinholster held federal habeas review of a state court’s adjudication of

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a claim on the merits, see 28 U.S.C. § 2254(d)(1) (2006), “is limited to the record that was before

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the state court that adjudicated the claim,” Pinholster, 131 S. Ct. at 1398. There is no discussion

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in Pinholster of equitable tolling or of anything else related to the habeas statute of limitations.

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Respondent further contends a petitioner’s pro se status and lack of legal sophistication

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do not constitute extraordinary circumstances warranting equitable tolling. The authorities

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respondent cites in support of his argument, see, e.g., Raspberry v. Garcia, 448 F.3d 1150, 1154

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(9th Cir. 2006); Jihad v. Hvass, 267 F.3d 803 (8th Cir. 2001), are non-death penalty habeas cases

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where the petitioner therein did not have a statutory right to counsel. Consequently, such cases

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do not support Respondent’s contention.

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Respondent also argues that this Court should deny Petitioner’s request for equitable

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tolling because: (1) Petitioner had counsel on direct appeal and in state habeas proceedings, and

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therefore could have used their materials to prepare a timely federal petition, and (2) the

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exhaustion doctrine requires the initial presentation of all claims to state court, and thus all

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claims Petitioner is entitled to raise in his federal petition were known to him on May 20, 2009,

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when the state court denied his state habeas petition. Neither the availability of state habeas

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counsel, nor the exhaustion requirement however, moots Petitioner’s right to federal habeas

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review or to equitable tolling.

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Accordingly, good cause therefor appearing, Petitioner’s motion is hereby GRANTED.

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Unless otherwise ordered, Petitioner shall file his finalized petition on or before August 10,

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2012. The hearing on Petitioner’s motion, currently set for December 16, 2011, is hereby

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VACATED.

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IT IS SO ORDERED.

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DATED: December 13, 2011

___________________________
MAXINE M. CHESNEY
United States District Judge

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ORDER GRANTING MOTION FOR EQUITABLE TOLLING