Smith v. Martel
Filing
30
ORDER GRANTING SECOND MOTION FOR EQUITABLE TOLLING & MOTION TO ACCEPT LATE FILING OF RESPONSE re 25 Motion for Extension of Time to File; 26 Stipulation; 27 Motion for Leave to File; 29 Motion to Amend/Correct. Petitioner shall file his finalized petition on or before November 28, 2012. The Court does not anticipate that additional equitable tolling will be warranted. Petitioner is admonished to file future motions in a timely manner. Signed by Judge Edward J. Davila on 9/25/2012. (ecg, COURT STAFF) (Filed on 9/25/2012)
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UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
11
12
Robert Lee SMITH Jr.,
Petitioner,
13
v.
14
15
Case Number 5-11-cv-3062-EJD
Kevin CHAPPELL,
Acting Warden of San Quentin State Prison,
16
Respondent.
DEATH-PENALTY CASE
ORDER GRANTING SECOND
MOTION FOR EQUITABLE
TOLLING & MOTION TO ACCEPT
LATE FILING OF RESPONSE
[Docs. Nos. 23, 25–27, & 29]
17
18
Petitioner’s capital habeas petition is currently due on September 28, 2012. Petitioner
19
has filed a Second Motion for Equitable Tolling, in which he seeks an extension to November
20
28, 2012.
21
Petitioner “is entitled to equitable tolling only if he shows (1) that he has been pursuing
22
his rights diligently, and (2) that some extraordinary circumstance stood in his way and
23
prevented timely filing.” Holland v. Florida, 560 U.S. ___, 130 S. Ct. 2549, 2562 (2010)
24
(internal quotation marks omitted). Petitioner claims, inter alia, that he diligently sought from
25
the Court funding for investigative and expert services that are reasonably necessary to prepare
26
his petition, but delays in obtaining such funding have made it impossible for him to file his
27
petition in a timely manner.
28
Petitioner generally challenges the budget process that private counsel representing
Case No. 5-11-cv-3062-EJD
ORDER GRANTING 2D MOT. FOR EQUITABLE TOLLING & MOT. TO ACCEPT LATE FILING OF RESPONSE
(DPSAGOK)
1
condemned prisoners are required to follow in capital habeas actions in the District Courts of the
2
Ninth Circuit. The Court rejects Petitioner’s arguments in this regard, as the Court has an
3
obligation to ensure that public funds are not wasted.
4
However, budgeting the present action has been particularly and unusually time-
5
consuming. As a result, Petitioner’s budget is finally being approved (with virtually all of the
6
hours and expenses requested by Petitioner being granted) during the week that the petition is
7
currently due. It is therefore simply impossible for Petitioner to complete his petition before the
8
current deadline; Petitioner needs two additional months.
9
The Court finds and concludes that Petitioner has been pursuing his rights diligently yet
10
extraordinary circumstances stand in his way and prevent timely filing of his capital habeas
11
petition. Accordingly, the Court grants Petitioner’s Second Motion for Equitable Tolling, (Docs.
12
Nos. 23 & 25); the Court need not consider Petitioner’s additional arguments in support of his
13
Motion. Petitioner shall file his finalized petition on or before November 28, 2012. The Court
14
does not anticipate that additional equitable tolling will be warranted.
15
Although Petitioner has been diligent in attempting to prepare his petition, he was not
16
diligent in moving for additional equitable tolling. As a result, Respondent was unfairly
17
burdened in responding to Petitioner’s motion; Respondent nonetheless responded promptly and
18
professionally in a particularly praiseworthy manner. Accordingly, the Court grants
19
Respondent’s Motion to Accept Late Filing of Response in Opposition to Petitioner’s Second
20
Motion for Equitable Tolling, (Docs. Nos. 27 & 29); the Clerk shall terminate as moot the
21
parties’ related Stipulation and Proposed Order to Shorten Time, (Doc. No. 26). Petitioner is
22
admonished to file future motions in a timely manner.
23
It is so ordered.
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25
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DATED: September 25, 2012
__________________________________
EDWARD J. DAVILA
United States District Judge
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2
Case No. 5-11-cv-3062-EJD
ORDER GRANTING 2D MOT. FOR EQUITABLE TOLLING & MOT. TO ACCEPT LATE FILING OF RESPONSE
(DPSAGOK)
1
UNITED STATES DISTRICT COURT
2
FOR THE
3
NORTHERN DISTRICT OF CALIFORNIA
4
5
ROBERT LEE SMITH, JR.,
Case Number: CV11-03062 EJD
6
Plaintiff,
CERTIFICATE OF SERVICE
7
v.
8
MICHAEL MARTEL et al,
9
Defendant.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
/
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on September 25, 2012, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.
California Appellate Project
Federal Court Docketing
101 Second Street Suite 600
San Francisco, CA 94105
Michael David Laurence
Habeas Corpus Resource Center
303 Second Street Suite 400
San Francisco, CA 94107
Robert Lee Smith H-95100
San Quentin State Prison
San Quentin, CA 94974
Dated: September 25, 2012
Richard W. Wieking, Clerk
/s/ By: Elizabeth Garcia, Deputy Clerk
24
25
26
27
28
3
Case No. 5-11-cv-3062-EJD
ORDER GRANTING 2D MOT. FOR EQUITABLE TOLLING & MOT. TO ACCEPT LATE FILING OF RESPONSE
(DPSAGOK)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA
10
SAN JOSE DIVISION
11
12
Robert Lee SMITH Jr.,
Petitioner,
13
v.
14
15
Case Number 5-11-cv-3062-EJD
Kevin CHAPPELL,
Acting Warden of San Quentin State Prison,
16
Respondent.
DEATH-PENALTY CASE
ORDER GRANTING SECOND
MOTION FOR EQUITABLE
TOLLING & MOTION TO ACCEPT
LATE FILING OF RESPONSE
[Docs. Nos. 23, 25–27, & 29]
17
18
Petitioner’s capital habeas petition is currently due on September 28, 2012. Petitioner
19
has filed a Second Motion for Equitable Tolling, in which he seeks an extension to November
20
28, 2012.
21
Petitioner “is entitled to equitable tolling only if he shows (1) that he has been pursuing
22
his rights diligently, and (2) that some extraordinary circumstance stood in his way and
23
prevented timely filing.” Holland v. Florida, 560 U.S. ___, 130 S. Ct. 2549, 2562 (2010)
24
(internal quotation marks omitted). Petitioner claims, inter alia, that he diligently sought from
25
the Court funding for investigative and expert services that are reasonably necessary to prepare
26
his petition, but delays in obtaining such funding have made it impossible for him to file his
27
petition in a timely manner.
28
Petitioner generally challenges the budget process that private counsel representing
Case No. 5-11-cv-3062-EJD
ORDER GRANTING 2D MOT. FOR EQUITABLE TOLLING & MOT. TO ACCEPT LATE FILING OF RESPONSE
(DPSAGOK)
1
condemned prisoners are required to follow in capital habeas actions in the District Courts of the
2
Ninth Circuit. The Court rejects Petitioner’s arguments in this regard, as the Court has an
3
obligation to ensure that public funds are not wasted.
4
However, budgeting the present action has been particularly and unusually time-
5
consuming. As a result, Petitioner’s budget is finally being approved (with virtually all of the
6
hours and expenses requested by Petitioner being granted) during the week that the petition is
7
currently due. It is therefore simply impossible for Petitioner to complete his petition before the
8
current deadline; Petitioner needs two additional months.
9
The Court finds and concludes that Petitioner has been pursuing his rights diligently yet
10
extraordinary circumstances stand in his way and prevent timely filing of his capital habeas
11
petition. Accordingly, the Court grants Petitioner’s Second Motion for Equitable Tolling, (Docs.
12
Nos. 23 & 25); the Court need not consider Petitioner’s additional arguments in support of his
13
Motion. Petitioner shall file his finalized petition on or before November 28, 2012. The Court
14
does not anticipate that additional equitable tolling will be warranted.
15
Although Petitioner has been diligent in attempting to prepare his petition, he was not
16
diligent in moving for additional equitable tolling. As a result, Respondent was unfairly
17
burdened in responding to Petitioner’s motion; Respondent nonetheless responded promptly and
18
professionally in a particularly praiseworthy manner. Accordingly, the Court grants
19
Respondent’s Motion to Accept Late Filing of Response in Opposition to Petitioner’s Second
20
Motion for Equitable Tolling, (Docs. Nos. 27 & 29); the Clerk shall terminate as moot the
21
parties’ related Stipulation and Proposed Order to Shorten Time, (Doc. No. 26). Petitioner is
22
admonished to file future motions in a timely manner.
23
It is so ordered.
24
25
26
DATED: September 25, 2012
__________________________________
EDWARD J. DAVILA
United States District Judge
27
28
2
Case No. 5-11-cv-3062-EJD
ORDER GRANTING 2D MOT. FOR EQUITABLE TOLLING & MOT. TO ACCEPT LATE FILING OF RESPONSE
(DPSAGOK)
1
UNITED STATES DISTRICT COURT
2
FOR THE
3
NORTHERN DISTRICT OF CALIFORNIA
4
5
ROBERT LEE SMITH, JR.,
Case Number: CV11-03062 EJD
6
Plaintiff,
CERTIFICATE OF SERVICE
7
v.
8
MICHAEL MARTEL et al,
9
Defendant.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
/
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on September 25, 2012, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.
California Appellate Project
Federal Court Docketing
101 Second Street Suite 600
San Francisco, CA 94105
Michael David Laurence
Habeas Corpus Resource Center
303 Second Street Suite 400
San Francisco, CA 94107
Robert Lee Smith H-95100
San Quentin State Prison
San Quentin, CA 94974
Dated: September 25, 2012
Richard W. Wieking, Clerk
/s/ By: Elizabeth Garcia, Deputy Clerk
24
25
26
27
28
3
Case No. 5-11-cv-3062-EJD
ORDER GRANTING 2D MOT. FOR EQUITABLE TOLLING & MOT. TO ACCEPT LATE FILING OF RESPONSE
(DPSAGOK)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA
10
SAN JOSE DIVISION
11
12
Robert Lee SMITH Jr.,
Petitioner,
13
v.
14
15
Case Number 5-11-cv-3062-EJD
Kevin CHAPPELL,
Acting Warden of San Quentin State Prison,
16
Respondent.
DEATH-PENALTY CASE
ORDER GRANTING SECOND
MOTION FOR EQUITABLE
TOLLING & MOTION TO ACCEPT
LATE FILING OF RESPONSE
[Docs. Nos. 23, 25–27, & 29]
17
18
Petitioner’s capital habeas petition is currently due on September 28, 2012. Petitioner
19
has filed a Second Motion for Equitable Tolling, in which he seeks an extension to November
20
28, 2012.
21
Petitioner “is entitled to equitable tolling only if he shows (1) that he has been pursuing
22
his rights diligently, and (2) that some extraordinary circumstance stood in his way and
23
prevented timely filing.” Holland v. Florida, 560 U.S. ___, 130 S. Ct. 2549, 2562 (2010)
24
(internal quotation marks omitted). Petitioner claims, inter alia, that he diligently sought from
25
the Court funding for investigative and expert services that are reasonably necessary to prepare
26
his petition, but delays in obtaining such funding have made it impossible for him to file his
27
petition in a timely manner.
28
Petitioner generally challenges the budget process that private counsel representing
Case No. 5-11-cv-3062-EJD
ORDER GRANTING 2D MOT. FOR EQUITABLE TOLLING & MOT. TO ACCEPT LATE FILING OF RESPONSE
(DPSAGOK)
1
condemned prisoners are required to follow in capital habeas actions in the District Courts of the
2
Ninth Circuit. The Court rejects Petitioner’s arguments in this regard, as the Court has an
3
obligation to ensure that public funds are not wasted.
4
However, budgeting the present action has been particularly and unusually time-
5
consuming. As a result, Petitioner’s budget is finally being approved (with virtually all of the
6
hours and expenses requested by Petitioner being granted) during the week that the petition is
7
currently due. It is therefore simply impossible for Petitioner to complete his petition before the
8
current deadline; Petitioner needs two additional months.
9
The Court finds and concludes that Petitioner has been pursuing his rights diligently yet
10
extraordinary circumstances stand in his way and prevent timely filing of his capital habeas
11
petition. Accordingly, the Court grants Petitioner’s Second Motion for Equitable Tolling, (Docs.
12
Nos. 23 & 25); the Court need not consider Petitioner’s additional arguments in support of his
13
Motion. Petitioner shall file his finalized petition on or before November 28, 2012. The Court
14
does not anticipate that additional equitable tolling will be warranted.
15
Although Petitioner has been diligent in attempting to prepare his petition, he was not
16
diligent in moving for additional equitable tolling. As a result, Respondent was unfairly
17
burdened in responding to Petitioner’s motion; Respondent nonetheless responded promptly and
18
professionally in a particularly praiseworthy manner. Accordingly, the Court grants
19
Respondent’s Motion to Accept Late Filing of Response in Opposition to Petitioner’s Second
20
Motion for Equitable Tolling, (Docs. Nos. 27 & 29); the Clerk shall terminate as moot the
21
parties’ related Stipulation and Proposed Order to Shorten Time, (Doc. No. 26). Petitioner is
22
admonished to file future motions in a timely manner.
23
It is so ordered.
24
25
26
DATED: September 25, 2012
__________________________________
EDWARD J. DAVILA
United States District Judge
27
28
2
Case No. 5-11-cv-3062-EJD
ORDER GRANTING 2D MOT. FOR EQUITABLE TOLLING & MOT. TO ACCEPT LATE FILING OF RESPONSE
(DPSAGOK)
1
UNITED STATES DISTRICT COURT
2
FOR THE
3
NORTHERN DISTRICT OF CALIFORNIA
4
5
ROBERT LEE SMITH, JR.,
Case Number: CV11-03062 EJD
6
Plaintiff,
CERTIFICATE OF SERVICE
7
v.
8
MICHAEL MARTEL et al,
9
Defendant.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
/
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on September 25, 2012, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.
California Appellate Project
Federal Court Docketing
101 Second Street Suite 600
San Francisco, CA 94105
Michael David Laurence
Habeas Corpus Resource Center
303 Second Street Suite 400
San Francisco, CA 94107
Robert Lee Smith H-95100
San Quentin State Prison
San Quentin, CA 94974
Dated: September 25, 2012
Richard W. Wieking, Clerk
/s/ By: Elizabeth Garcia, Deputy Clerk
24
25
26
27
28
3
Case No. 5-11-cv-3062-EJD
ORDER GRANTING 2D MOT. FOR EQUITABLE TOLLING & MOT. TO ACCEPT LATE FILING OF RESPONSE
(DPSAGOK)
]]>
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