Weaver v. Amsberry et al
Filing
100
OPINION AND ORDER. Upon review, I disagree with Judge Beckerman's recommendation as to equitable tolling, and I DECLINE to adopt the F. & R. (ECF 78 ) as to that issue. As such, I do not need to reach the other issues discussed in the F. & R. The parties shall submit a proposed briefing schedule for the merits of Petitioner's Amended Petition for Writ of Habeas Corpus (ECF 62 ) by April 28, 2021. IT IS SO ORDERED. Signed on 4/21/2021 by Judge Michael W. Mosman. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PENDLETON DIVISION
RICHARD F. WEAVER, JR.,
Petitioner,
No. 2:16-cv-02226-SB
OPINION AND ORDER
v.
BRIGITTE AMSBERRY,
Respondent.
MOSMAN, J.,
On May 27, 2020, Magistrate Judge Stacie F. Beckerman issued her Findings and
Recommendation (F. & R.) [ECF 78]. Judge Beckerman recommended that I dismiss Petitioner’s
Amended Petition for Writ of Habeas Corpus [ECF 62] with prejudice and issue a certificate of
appealability on the application of equitable tolling. Petitioner Richard F. Weaver Jr. filed
objections [ECF 80, 81], and the Government filed a response [ECF 82]. In a case where the
governing legal principles as applied to this case are not crystal clear, and in the face of Ninth
Circuit precedent that post-dated the briefing Judge Beckerman received, I chart a different
course than she did in her thoughtful opinion.
BACKGROUND
Mr. Weaver filed this petition for habeas corpus relief, asserting ineffective assistance of
counsel. The Government seeks dismissal of the petition on the basis that Mr. Weaver failed to
file it within the one-year statute-of-limitations period provided by the Antiterrorism and
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Effective Death Penalty Act of 1996 (“AEDPA”). The F. & R. sets out a detailed and accurate
description of the events in this case, which I will not repeat here.
As stated above, Judge Beckerman recommends that I dismiss Mr. Weaver’s petition
with prejudice but issue a certificate of appealability on the application of equitable tolling. On
December 15, 2020, I held an evidentiary hearing to clarify aspects of the record and Mr.
Weaver’s diligence in working on his petition.
STANDARD OF REVIEW
The magistrate judge makes only recommendations to the court, to which any party may
file written objections. The court is not bound by the recommendations of the magistrate judge,
but retains responsibility for making the final determination. The court is generally required to
make a de novo determination regarding those portions of the report or specified findings or
recommendation as to which an objection is made. 28 U.S.C. § 636(b)(1)(C). However, the court
is not required to review, de novo or under any other standard, the factual or legal conclusions of
the magistrate judge as to those portions of the F. & R. to which no objections are addressed. See
Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121
(9th Cir. 2003). While the level of scrutiny under which I am required to review the F. & R.
depends on whether or not objections have been filed, in either case, I am free to accept, reject,
or modify any part of the F. & R. 28 U.S.C. § 636(b)(1)(C).
DISCUSSION
Under AEDPA, a one-year statute of limitations applies to an application for a writ of
habeas corpus. 28 U.S.C. § 2244(d)(1). However, § 2244(d) of AEDPA is subject to equitable
tolling in certain circumstances. Holland v. Florida, 560 U.S. 631, 649 (2010). Equitable tolling
is appropriate upon a showing “‘(1) that [the petitioner] has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing.” Id.
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(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The second showing has two parts:
the existence of an extraordinary circumstance and causation. Smith v. Davis, 953 F.3d 582, 595
(9th Cir. 2020) (en banc). I will first address whether an extraordinary circumstance existed, and
then I will discuss diligence and causation.
I.
Extraordinary Circumstance
Mr. Weaver contends that his trial counsel’s withholding of his trial file for
approximately ten months constitutes an extraordinary circumstance. Merely negligent attorney
conduct, such as miscalculation of the limitations period, does not constitute an extraordinary
circumstance. Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001). Additionally, untimeliness
due to oversight, miscalculation, or negligence on the petitioner’s part is not an extraordinary
circumstance warranting equitable tolling. Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011
(9th Cir. 2009). Egregious attorney misconduct, however, may constitute an extraordinary
circumstance warranting equitable tolling. Holland, 560 U.S. at 651; see also Spitsyn v. Moore,
345 F.3d 796, 800 (9th Cir. 2003) (finding extraordinary circumstances existed when attorney
failed to prepare and file a habeas petition, failed to communicate with his client, and retained his
client’s file for the duration of the limitations period).
Judge Beckerman concluded that Mr. Weaver’s “Trial Counsel’s conduct was sufficiently
egregious to qualify as extraordinary circumstances.” F. & R. [ECF 78] at 12. I agree and adopt
her opinion as to this issue.
II.
Reasonable Diligence
The next question is whether Mr. Weaver has been pursuing his rights diligently.
Holland, 560 U.S. at 649. “The diligence required for equitable tolling purposes is ‘reasonable
diligence,’ not ‘maximum feasible diligence.’” Id. at 653 (internal citations omitted). “To
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determine if a petitioner has been diligent in pursuing his petition, courts consider the
petitioner’s overall level of care and caution in light of his or her particular circumstances.” Doe
v. Busby, 661 F.3d 1001, 1013 (9th Cir. 2011). While reasonable diligence is a fact-specific
inquiry, it “seemingly requires the petitioner to work on his petition with some regularity—as
permitted by his circumstances—until he files it in the district court.” Smith, 953 F.3d at 602.
The Ninth Circuit recently clarified that a petitioner must act with reasonable diligence “not only
while an impediment to filing caused by an extraordinary circumstance existed, but before and
after as well, up to the time of filing [a] claim in federal court.” Id. at 598–99.
In analyzing a petitioner’s diligence, the case law instructs me to consider his or her
particular circumstances. For Mr. Weaver, these circumstances include a long history of mental
health issues, time spent in a restrictive housing unit with limited access to the law library, and a
hand injury. See First Richard Weaver Decl. [ECF 25-1] ⁋⁋ 29–31.1 Judge Beckerman examined
these factors to see if they constituted additional extraordinary circumstances and concluded they
do not. F. & R. [ECF 78] at 15–17. I agree, but pursuant to the case law cited above, I find they
are independently relevant to my consideration of Mr. Weaver’s diligence. See Smith, 953 F.3d
at 602.
Judge Beckerman did not specifically analyze Mr. Weaver’s diligence in filing his
petition, instead resting her conclusion on Mr. Weaver’s misunderstanding of the filing deadline.
An important point in her analysis was that his misunderstanding is what caused him to miss his
deadline and therefore his reasonable diligence, or not, did not matter. But my reading of the
relevant case law––in particular Smith, which was decided after the parties had completed their
briefing––is that reasonable diligence is an important component of the causation analysis. See,
1
Mr. Weaver clarified that time spent in restrictive housing after the conclusion of state postconviction relief proceedings was not due to bad behavior. Tr. [ECF 91] at 15–16.
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e.g., id. at 600 (“[I]t is only when an extraordinary circumstance prevented a petitioner acting
with reasonable diligence from making a timely filing that equitable tolling may be the proper
remedy.”). Even if Mr. Weaver misunderstood the filing deadline, I still need to determine
whether an extraordinary circumstance––here, the withholding of his trial file––prevented him
from making a timely filing, despite his reasonable diligence. Since the causation analysis to a
large degree hinges on the diligence analysis, I find it is necessary to first ask whether Mr.
Weaver acted with reasonable diligence in pursuing his state post-conviction relief (“PCR”) and
federal habeas relief at all relevant time periods.
A.
During the Impediment to Filing
Mr. Weaver was deprived of his trial file for approximately the first ten months of the
limitations period. Mr. Weaver repeatedly attempted to get access to his file throughout this time.
He contacted his trial counsel on numerous occasions, filed a motion to compel, and filed a bar
complaint against his trial counsel. First Weaver Decl. [ECF 25-1] ⁋⁋ 9–12. By actively pursuing
his trial file through different means and throughout the ten months, I find Mr. Weaver acted
with reasonable diligence in pursuing his rights while the impediment to filing existed.
B.
After the Impediment to Filing was Removed
There are three relevant time periods to consider in assessing Mr. Weaver’s
diligence after he received his trial file: (1) prior to filing his pro se state PCR petition, (2) while
state PCR proceedings were pending, and (3) after the conclusion of state PCR proceedings and
prior to filing his pro se federal habeas petition. I address each in turn.
1.
Prior to Filing his Pro Se State PCR Petition
Mr. Weaver asserts that he began preparing his pro se state PCR petition as soon has he
received his file from trial counsel. First Weaver Decl. [ECF 25-1] ⁋ 13. After receiving his file,
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he completed and filed his petition pro se in roughly two months. Id. ⁋ 14. I am satisfied that Mr.
Weaver has demonstrated he acted with reasonable diligence in doing so. See id. ⁋⁋ 14–20
(setting out actions taken during this time and detailing the challenges of preparing filings while
incarcerated).
2.
While State PCR Proceedings Were Pending
The Government argues Mr. Weaver cannot show that he was reasonably diligent during
the time that his state PCR case was pending––a period of nearly four years. I reject this
argument for two reasons.
First, the statute of limitations is statutorily tolled during a petitioner’s state PCR case
and thus courts do not typically look at whether a petitioner acted with reasonable diligence
during that time. For example, there are many cases each year where a petitioner does absolutely
nothing during his or her state PCR case and then files a federal petition far more than one year
after conviction.2 In those cases, courts do not even ask whether a petitioner was diligent; we just
accept that the state PCR time was statutorily tolled and find the petition timely. Mr. Weaver is
not qualitatively different than those petitioners. And while not explicitly addressed by any
governing precedent cited by either of the parties, the Supreme Court would appear to agree with
this conclusion. For instance, in Pace v. DiGuglielmo, the Court found petitioner had not
established the requisite diligence, reasoning that “not only did petitioner sit on his rights for
years before he filed his [state PCR] petition, but he also sat on them for five more months after
his [state PCR] proceedings became final before deciding to seek relief in federal court.” 544
2
For instance, a 2007 empirical study found the average time elapsed between state court
judgment and federal habeas filing was 6.3 years for non-capital cases and 7.4 years for capital cases.
Nancy J. King et al., Final Technical Report: Habeas Litigation in U.S. District Courts: An Empirical
Study of Habeas Corpus Cases Filed by State Prisoners Under the Antiterrorism and Effective Death
Penalty Act of 1996 21–22 (2007), https://www.ojp.gov/pdffiles1/nij/grants/219559.pdf.
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U.S. at 419. Notably, the Court did not analyze what the petitioner did or did not do during the
time state PCR proceedings were pending.
Second, not requiring a petitioner to show diligence while state PCR proceedings are
pending is reasonable. The result of a state PCR process could render a federal habeas petition
unnecessary, either through a victory in state court or a decision by a prisoner not to seek further
relief. Cf. Rudin v. Myles, 781 F.3d 1043, 1056–57 (9th Cir. 2014) (reasonable diligence did not
require a protective petition in federal court before the state petition was deemed untimely). I am
loathe to incentivize work on federal habeas petitions that may prove unnecessary.
3.
After the Conclusion of State PCR Proceedings and Prior to Filing his Pro
Se Federal Habeas Petition
The Government appears to concede Mr. Weaver acted with reasonable diligence at this
stage. I agree. After the conclusion of state PCR proceedings, although he believed he had one
year to file his federal habeas corpus petition, Mr. Weaver “began work on [his] federal habeas
corpus petition immediately, and filed it as early as possible given the restraints and delays that
are typical of prison.” First Weaver Decl. [ECF 25-1] ⁋ 31. At the December 2020 evidentiary
hearing, Mr. Weaver provided further compelling testimony on his diligence during this time
period and the difficulties of working on a habeas petition while incarcerated. Tr. [ECF 91] at
46–50. However, he concluded his testimony by stating, “I’ve done everything I possibly could,
and if I would have known I had 17 days or whatever, I would have filed it immediately.” Id. at
50. The hearing ended without further explanation from Mr. Weaver or his counsel. I ordered
supplemental briefing to give Mr. Weaver an opportunity to explain this statement and
specifically to explain whether he actually used additional time––beyond the 17 days available to
him––to do something necessary for his ultimate petition. In his supplemental declaration, Mr.
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Weaver clarified that it would not have been possible for him to file his petition in 17 days, and
that he needed the additional time to complete tasks necessary to his petition. Third Weaver
Decl. [ECF 95-1] ⁋⁋ 4–6. Specifically, Mr. Weaver asserts that he used the time to request
documents related to his state-court cases; request law library and inmate legal assistant help to
ask questions about relevant forms; get assistance in filling out forms; and request his six-month
statement of accounts to submit with his application to proceed in forma pauperis. Id. ⁋ 7.
Considering all the circumstances, including the ample evidence in the record of Mr.
Weaver working on his petition regularly and using the numerous resources at his disposal, as
well as his testimony regarding the difficulties of completing such tasks in prison, I find that Mr.
Weaver acted with reasonable diligence on his federal habeas petition after state PCR
proceedings concluded.
For the above reasons, I find Mr. Weaver acted with reasonable diligence at all relevant
time periods.
III.
Causation
Finally, equitable tolling may be applied only “when an extraordinary circumstance
prevented a petitioner acting with reasonable diligence from making a timely filing.” Smith, 953
F.3d at 600. “[T]his rule does not impose a rigid ‘impossibility’ standard on litigants, and
especially not on ‘pro se prisoner litigants.’” Id. (quoting Fue v. Biter, 842 F.3d 650, 657 (9th
Cir. 2016)). Instead, it is a fact-specific inquiry that requires courts to “decide the issue based on
all the circumstances of the case before it.” Id.
At this step of the analysis Judge Beckerman first concluded that she could not apply the
stop-clock approach, which would add back the ten months Mr. Weaver was without his trial file
to the limitations period, because “the Ninth Circuit rejected the ‘stop-clock’ approach in Smith.”
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F. &. R. [ECF 78] at 14. Next, Judge Beckerman concluded that because Mr. Weaver
misunderstood how to calculate the statute of limitations, “the extraordinary circumstance caused
by Trial Counsel’s delay did not cause Petitioner’s untimely filing of his federal habeas petition.”
Id. at 15. However, because Smith was decided after Judge Beckerman took this case under
advisement, neither party had the benefit of briefing the application of Smith to the causation
analysis. As I previously noted, under my reading of Smith, the critical causation question here is
whether a petitioner in Mr. Weaver’s situation who acted with reasonable diligence should have
filed their federal habeas petition in 17 days. I evaluate this question first by addressing the
potential application of the stop-clock approach, then Mr. Weaver’s misunderstanding of the
statute-of-limitations deadline, and finally the Government’s argument regarding the timing of
the extraordinary circumstance.
A.
The Stop-Clock Approach
As to the potential application of the stop-clock approach, I read Smith differently than
Judge Beckerman. In Smith, the petitioner asked the court “to adopt a flat rule” that would allow
a petitioner to “simply add the time during which he was so impeded to extend the period of the
statute of limitations, regardless [of] whether he was reasonably diligent in filing his petition
after the impediment was removed.” Smith, 953 F.3d at 586 (emphasis added). The central issue
in Smith was whether a petitioner must act with reasonable diligence at all stages of the petition
process. The Ninth Circuit said yes and declined to apply the stop-clock approach in light of the
facts before it. But it did not foreclose application of the stop-clock approach altogether. To the
contrary, it had “no trouble imaging [sic] a circumstance where a petitioner is impeded by
extraordinary circumstances from working on a habeas petition for two months, but after those
circumstances are dispelled, uses the next 364 days diligently, files his petition, and has the
9 – OPINION AND ORDER
entire two months during which the extraordinary circumstances existed equitably tolled.” Id. at
601. Accordingly, the stop-clock approach may still be applied when a petitioner demonstrates
they have acted with reasonable diligence before any impediment to filing, during the time of the
impediment, and after the impediment to filing is removed.
B.
Misunderstanding of the Statute-of-Limitations Deadline
Next is the issue of Mr. Weaver’s misunderstanding of the statute-of-limitations deadline.
Under my reading of Smith and other governing precedent, a petitioner may misunderstand the
filing deadline and still demonstrate that, despite acting with reasonable diligence, he or she was
unable to make a timely filing due to a prior extraordinary circumstance. I agree with Judge
Beckerman that Mr. Weaver’s misunderstanding of his filing deadline itself is not an
extraordinary circumstance. See F. & R. [ECF 78] at 15. But the question here is whether the
prior extraordinary circumstance––his trial counsel’s withholding of his trial file––was the cause
of his untimely federal habeas petition despite his subsequent misunderstanding of the filing
deadline. Thus, I must ask whether a petitioner in Mr. Weaver’s situation who acted with
reasonable diligence should have filed their federal habeas petition in 17 days.
I have already concluded Mr. Weaver acted with reasonable diligence at all relevant time
periods. I now further conclude that despite acting with reasonable diligence, Mr. Weaver was
unable to file in a timely manner because of the delay in receiving his trial file. Mr. Weaver was
left with only 17 days to file his federal habeas petition after the conclusion of state PCR
proceedings. Mistakenly thinking he had one year to file, he took 109 days to complete his
federal petition. However, the record indicates that despite his misunderstanding of the time left
to file, he began working on his petition right away, filing it “as quickly as practicable” given his
circumstances. Pet’r’s Objs. [ECF 80] at 4. He used his time to conduct research, consult his
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resources, and request necessary paperwork. Third Weaver Decl. [ECF 95-1] ⁋ 7. Given the
delays inherent in the prison system, these tasks could not have been done in 17 days. Id. ⁋ 4.
While Mr. Weaver indeed may have been able to scrape together a hollow shell of a petition in
17 days, that is not what the law requires. Smith, 953 F.3d at 600 (rejecting the “impossibility”
standard). Nor is it something our caselaw should encourage. Critically, had Mr. Weaver not
been deprived of his trial file for ten months on the front end of the limitations period, his
petition would have been timely. In fact, his petition would have been over six months early. So,
while Mr. Weaver did misunderstand the time he had left to file, the extraordinary circumstance
was still the cause of his late filing because (1) he acted with reasonable diligence at all relevant
time periods, (2) he used time beyond the 17 days to complete tasks necessary for his petition,
and (3) adding back the time he was without his trial file, his federal habeas petition is timely.
C.
Timing of the Extraordinary Circumstances
Finally, I must address the Government’s primary argument, which focuses on the timing
of the extraordinary circumstance. The Government maintains that an extraordinary
circumstance that occurs prior to the state filing deadline can never be the cause of an untimely
federal habeas petition. Resp’t’s Resp. [ECF 99] at 1–2. I disagree. The case before me is
distinguishable from cases that the Government relies on, like Randle v. Crawford, 604 F.3d
1047, 1058 (9th Cir. 2010), in two important ways. First, because of the length of the
impediment to his state filing, the time left for Mr. Weaver to file his federal petition was
dramatically reduced. And second, the time left was insufficient for a petitioner exercising
reasonable diligence to file their federal habeas petition. As such, this is not a case, like Randle,
where a petitioner with ample time to file after the impediment to filing was removed merely sat
on their hands. See id. at 1058 (“[T]here is no indication that had Randle received the files
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sooner, he would have filed a federal habeas petition within the one-year limitations period.”).
The Government ignores this distinction and instead asserts an incomprehensibly rigid view of
equitable tolling: that even if an extraordinary circumstance impeded a petitioner from filing for
364 days, so long as it occurred before the state-filing deadline it could never be a basis for
equitable tolling of the federal habeas deadline. This view of equitable tolling is difficult to
reconcile in light of the Ninth Circuit’s recent pronouncements in Smith that emphasize the factspecific nature of the causation inquiry and the importance of a petitioner’s diligence at all
stages. I therefore reject the Government’s argument and find that the timing of the extraordinary
circumstance does not negate causation where, as here, a petitioner acting with reasonable
diligence was left without enough time to file.
In conclusion, for the reasons discussed above, I decline to adopt Judge Beckerman’s F.
& R. as to causation. Because I conclude that the other relevant inquiries are also satisfied, I find
equitable tolling is proper and Mr. Weaver’s petition should be evaluated on the merits.
CONCLUSION
Upon review, I disagree with Judge Beckerman’s recommendation as to equitable tolling,
and I DECLINE to adopt the F. & R. [ECF 78] as to that issue. As such, I do not need to reach
the other issues discussed in the F. & R. The parties shall submit a proposed briefing schedule
for the merits of Petitioner’s Amended Petition for Writ of Habeas Corpus [ECF 62] by April 28,
2021.
IT IS SO ORDERED.
21
DATED this ____ day of April, 2021.
________________________
MICHAEL W. MOSMAN
United States District Judge
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