(HC)(DP) Maury v. Martel

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- ROBERT EDWARD MAURY, No. 2:12-cv-1043 WBS DB 13 Plaintiff, DEATH PENALTY CASE 14 v. RONALD DAVIS, ORDER 16 Defendant.

18 ----oo0oo---- 19 Petitioner is a condemned state prisoner proceeding through counsel with a petition for writ of habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

24 On August 28, 2020, the Magistrate Judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within thirty days.

1 Respondent filed objections to the findings and recommendations.

2 Specifically, respondent argues that petitioner’s motion for equitable tolling is premature under Smith v. Davis, 953 F.3d 582 (9th Cir. 2020), and that Smith overruled Calderon v. U.S. Dist. Court for the Cent. Dist. Of Cal. (Beeler), 128 6 F.3d 1283, 1285 (9th Cir. 1997), which upheld prospective equitable tolling of a time limitation. (See Request for Reconsideration at 3–7.) (ECF No. 184.) However, the question of prospective tolling of the Antiterrorism and Effective Death Penalty Act (AEDPA) statute of limitation was not before the court in Smith. Cowan v. Davis, No. 1:19-CV-00745-DAD, 2020 WL 12 4698968 at *4 (E.D. Cal. Aug. 13, 2020). Moreover, Smith does not expressly overrule or even mention Beeler, and is not irreconcilable with that decision. Id. 15 Thus, the court rejects respondent’s contention that the Magistrate Judge’s order is clearly erroneous or contrary to law. See Fed. R. Civ. P. 72(a); see also Local Rule 303(f).

18 In accordance with the provisions of 28 U.S.C. § 19 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.

23 IT IS THEREFORE ORDERED that: 24 1. The findings and recommendations filed August 28, 2020 are adopted in full; 26 2. Petitioner’s motion to stay these proceedings and equitably toll the statue of limitations (ECF No. 179) is granted; WOAOe DDR MVEUEIOT □□ FOR PF OY VV VIG 1 3. These proceedings are stayed through November 26, 2020; and 3 4, Petitioner is entitled to equitable tolling of the statute of limitations for an additional 90 days through September 7, 2020.

6 | Dated: October 2, 2020 / td □ ak. 2 , 7 WILLIAMB.SHUBB ©.

3 UNITED STATES DISTRICT JUDGE