Verano v. Chappell

Filing 17

ORDER GRANTING EQUITABLE TOLLING re 8 MOTION for Equitable Tolling filed by Tomas Verano Cruz. Signed by Judge Jon S. Tigar on February 21, 2014. (wsn, COURT STAFF) (Filed on 2/21/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TOMAS VERANO CRUZ,

Case No. 13-cv-02792-JST

Plaintiff,
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ORDER GRANTING EQUITABLE
TOLLING

v.
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KEVIN CHAPPELL,

Re: Dkt. No. 8

Defendant.

United States District Court
Northern District of California

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INTRODUCTION

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Petitioner, a condemned prisoner at San Quentin State Prison, has filed a motion for

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equitable tolling of the one-year statute of limitations applicable federal habeas petitions. For the

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reasons outlined below, petitioner’s motion is GRANTED.

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BACKGROUND

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In September 1994, petitioner was sentenced to death in Sonoma County Superior Court

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following a conviction of first degree murder of Shasta County Deputy Sheriff Kenneth Perrigo,

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and forcible escape. Three special circumstances were found true: murder for the purpose of

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perfecting or attempting to perfect escape from custody, intentional murder of a police officer and

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lying in wait. People v. Cruz, 44 Cal. 4th 636, 643 (2008). The California Supreme Court

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affirmed his conviction and death sentence on July 24, 2008. Id. The United States Supreme

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Court denied certiorari on March 2, 2009. Cruz v. California, 555 U.S. 1215 (2009).

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Petitioner filed a state habeas petition on November 29, 2004. The California Supreme
Court denied this petition on June 12, 2013. (ECF Docket No. 1)
Petitioner filed a request for appointment of federal habeas counsel and stay of execution
in this Court on June 16, 2013. This request was granted. (ECF Docket No. 3) His case was

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referred to the Selection Board for recommendation of counsel.
The Court appointed counsel on November 19, 2013. On December 9, 2013, petitioner

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filed a motion requesting equitable tolling of the five-month period during which he was without

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counsel, setting the due-date for his petition as November 19, 2014. Because respondent's counsel

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had not filed a notice of appearance, she was not served with petitioner's motion and did not

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oppose it. On January 8, 2014, the Court granted petitioner's motion. On February 11, 2014,

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respondent's counsel was alerted to the lack of counsel of record, learned of petitioner's motion

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and the Court's Order granting equitable tolling. On February 12, 2014, she filed a motion to

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reconsider the Court's Order, as well as an opposition to petitioner's motion. On February 18,

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United States District Court
Northern District of California

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2014, petitioner filed a reply.
Having granted respondent's motion to reconsider and vacate its Order of January 8, 2014,
the Court once again grants petitioner's motion for equitable tolling.

DISCUSSION
The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) imposes a one-year

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deadline for an application for writ of habeas corpus. See 28 U.S.C. § 2244(d)(1). The one-year

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limitations period begins to run on “the date on which the judgment became final by the

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conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C.

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§ 2244(d)(1)A). “Direct review” concludes when the United States Supreme Court denies a

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petition for certiorari or the time for seeking certiorari review expires. Bowen v. Roe, 188 F.3d

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1157 (9th Cir. 1999). The United States Supreme Court denied petitioner’s petition for writ of

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certiorari on March 2, 2009. Cruz v. California, 555 U.S. 1215 (2009). Petitioner’s limitations

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period was statutorily tolled however, during the pendency of his state habeas petition. 28 U.S.C.

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§ 2244(d)(2). His state habeas petition was filed on November 29, 2004, and denied on June 12,

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2013. His statute of limitations thus began to run on June 13, 2013, the day after his state habeas

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petition was denied, and absent tolling, will expire on June 13, 2014.

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The one-year limitation period of § 2244(d)(1) is not jurisdictional and can be equitably

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tolled. Holland v. Florida, 560 U.S. ___, 130 S. Ct. 2549, 2554 (2010). A federal habeas

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petitioner “is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights
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diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely

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filing.” Id. at 2562 (internal quotation marks omitted). Although equitable tolling will not be

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available in most circumstances, it may be appropriate where external forces, rather than a

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petitioner’s lack of diligence, account for the failure to file a timely claim. See Miles v. Prunty,

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187 F.3d 1104, 1107 (9th Cir. 1999).

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Petitioner argues that he is entitled to equitable tolling because he lacked counsel during
five months of his statutory period. In capital cases, an indigent petitioner has a statutory right to

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counsel, which includes the right to legal assistance in the preparation of a habeas petition. See 18

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U.S.C. § 3599(a)(2); McFarland v. Scott, 512 U.S. 849, 856-57 (1994). The Supreme Court has

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observed that given the complex nature of capital habeas proceedings and the seriousness of the

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United States District Court
Northern District of California

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possible penalty, an attorney’s assistance in preparing a habeas petition is crucial. McFarland,

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512 U.S. at 855-56. In particular, “the right to counsel necessarily includes a right for that counsel

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meaningfully to research and present a defendant’s habeas claims.” Id. at 858. Accordingly,

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a capital habeas petitioner is generally entitled to equitable tolling
during the time that a court is seeking counsel to represent the
petitioner because the lack of appointed counsel is an extraordinary
circumstance that often makes it impossible for a petitioner to file an
otherwise timely petition that has been prepared with the assistance
of counsel.
Stanley v. Martel, No. 3-7-cv-4727-EMC, slip op. at 2 (N.D. Cal. July 26, 2011) (Order Granting

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in Part & Den. in Part 2d Mot. for Equitable Tolling) (internal quotation marks and citation
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omitted); see also, e.g., Jablonski v. Martel, No. 3-7-cv-3302-SI, slip op. at 2–3 (N.D. Cal. Sept. 9,
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2011) (Order Granting Motion for Equitable Tolling); San Nicolas v. Ayers, No. 1-6-cv-942-LJO,
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2007 WL 763221, at *6 (E.D. Cal. Mar. 9, 2007). The absence of counsel during five months of
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petitioner’s statutory period thus constitutes an extraordinary circumstance preventing him from

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filing the petition that he is statutorily entitled to file.
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Moreover, petitioner has pursued his rights diligently. This is evidenced by the fact that he
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initiated the present action and invoked his right to counsel before the statute of limitations
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expired. See, e.g., Hoyos v. Wong, No. 3-9-cv-388-L-NLS, 2010 WL 596443, at *5 (S.D. Cal.
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Feb. 16, 2010); Pollock v. Martel, No. 4-5-cv-1870-SBA, 2012 WL 174821, at *2 (N.D. Cal. Jan.
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20, 2012).
Respondent opposes petitioner’s request for tolling on various grounds. He argues that a

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petitioner’s pro se status and lack of legal sophistication do not constitute extraordinary

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circumstances warranting equitable tolling. The authorities he cites in support of this argument,

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see, e.g., Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); Jihad v. Hvass, 267 F.3d 803

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(8th Cir. 2001), are non-death penalty habeas cases where the petitioner did not have a statutory

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right to counsel. Such cases do not support respondent’s contention.

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Respondent next argues that the fact that the AEDPA itself does not provide for tolling
during the period when a request for appointment of counsel is pending indicates that Congress
intended the limitations period to begin running notwithstanding a capital prisoner’s unrepresented

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United States District Court
Northern District of California

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status. Congress’ decision to not provide for statutory tolling during the pendency of a request for

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appointment of counsel does not, however, negate a petitioner’s entitlement to equitable tolling of

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the limitations period.

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Respondent further asserts that in light of the fact that all federal claims must first be

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exhausted in state court, as well as the limitations imposed by Cullen v. Pinholster, 131 S. Ct.

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1388 (2011) (federal habeas review of a state court’s adjudication of a claim on the merits is

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limited to the record that was before the state court that adjudicated the claim), the seven

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remaining months of petitioner’s limitations period provides ample time for petitioner to review

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the state court record and prepare a petition containing exhausted claims based on the state court

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record. Contrary to respondent’s assertion, the exhaustion doctrine does not moot petitioner’s

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right to investigate and develop claims for federal habeas review, nor does it defeat his eligibility

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for equitable tolling. Furthermore, Pinholster is inapposite. There is no discussion in Pinholster

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of equitable tolling or of anything else related to the habeas statute of limitations. Respondent’s

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argument lacks merit.

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CONCLUSION
The Court concludes that petitioner has been pursuing his rights diligently, and the delay in

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appointing counsel prevents the timely filing of a finalized petition. The Court therefore

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grants petitioner’s motion for equitable tolling. Petitioner shall file his finalized petition on or
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before November 19, 2014.
IT IS SO ORDERED.
Dated: February 21, 2014
______________________________________
JON S. TIGAR
United States District Judge

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United States District Court
Northern District of California

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