The opinion of the court was delivered by: Miranda M. Duunited States District Judge
This habeas matter comes before the Court on a sua sponte inquiry into whether the petition is time-barred because it was not filed within the one-year limitation period in 28 U.S.C. § 2244(d)(1). This order follows up on an earlier show cause order (dkt. no. 2) and petitioner's response thereto (dkt. no. 3).
Petitioner Charles Webb, Jr. challenges his 2004 Nevada state conviction, pursuant to a guilty plea, of conspiracy to commit robbery, robbery with the use of a deadly weapon, robbery with the use of a deadly weapon of a victim 60 years or older, and burglary while in possession of a firearm. Petitioner's responses in the petition and the online docket records of the state courts reflect the following.
The judgment of conviction was filed on November 17, 2004. Petitioner did not file a direct appeal, and the time for doing so expired on December 17, 2004.
Nearly seven years later, on or about September 9, 2011, petitioner filed a motion to withdraw plea in the state district court. The state district court denied the motion. On appeal, in No. 59758, the Supreme Court of Nevada affirmed. The state supreme court held that the equitable doctrine of laches precluded consideration of the motion. The remittitur issued on October 9, 2012.
Petitioner asserts that he mailed the federal petition to the Clerk of this Court for filing on October 19, 2012. The petition was filed on December 10, 2012.
Pursuant to Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001), the Court sua sponte
has raised the question of whether the petition is time-barred for failure to file the petition within the one-year limitation period in 28 U.S.C. § 2244(d)(1).
Under 28 U.S.C. § 2244(d)(1)(A), the federal one-year limitation period, unless otherwise tolled or subject to delayed accrual, begins running after "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such direct review." In the present case, the limitation period therefore began running after the time period expired for filing a direct appeal, i.e., after December 17, 2004. Absent tolling or delayed accrual, the one-year limitation period expired on Monday, December 19, 2005.
Under 28 U.S.C. § 2244(d)(2), the federal limitation period is statutorily tolled during the pendency of a properly filed application for state post-conviction relief or for other state collateral review. However, it does not appear that petitioner's September 2011 motion to withdraw plea would render his federal petition timely, for two reasons. First, absent other tolling or delayed accrual, the federal limitation period already had expired nearly six years earlier, on December 19, 2005. Second, it would appear that a collateral review proceeding barred by laches is not properly filed for purposes of statutory tolling under § 2244(d)(2). See Pace v. DiGuglielmo, 544 U.S. 408 (2005).
Accordingly, absent other tolling or delayed accrual, the federal limitation period expired on December 19, 2005. The federal petition in this matter was not mailed for filing until ─ giving petitioner the benefit of the doubt purely arguendo ─ on or about October 19, 2012, six years and ten months after the federal limitation period had expired, absent other tolling or delayed accrual. The petition thus is untimely on its face.
In the show-cause response, petitioner asserts, inter allia, that: (1) defense counsel did not communicate effectively with him prior to his alleged October 2003 sentencing and did not respond to any of petitioner's alleged phone calls, letters or messages after sentencing; (2) petitioner therefore was unaware that he was serving four consecutive sentences until his first parole hearing in 2007 where he was informed that he had completed one sentence and would start serving the next; (3) petitioner, having thus found out that he had been "betrayed," tried contacting counsel but the phone number was out of service; (4) in or around January 2008, his mother "stumbled" onto counsel's law office but never was able to get through to talk to counsel in person or by phone; (5) petitioner thereafter followed up by calling counsel "regularly" from prison but could only get through to the secretary, who constantly apologized for counsel's unavailability; (6) in ...