The opinion of the court was delivered by: Miranda M. DU United 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. 7) and petitioner's response (dkt. no. 10) thereto, which he has filed as a motion to show cause.
Petitioner Rufino Patacsil challenges his 2005 Nevada state conviction, pursuant to a guilty plea, of sexual assault.
The papers presented together with the online records of the state supreme court reflect the following procedural history, which is not contested by petitioner in his show-cause response.
The judgment of conviction was filed on or about November 14, 2005. No direct appeal was filed, and the time period for filing a notice of appeal expired on or about December 14, 2005.
According to the January 16, 2013, order of affirmance by the Supreme Court of Nevada in No. 60018, petitioner filed a state post-conviction petition on October 9, 2007. The state district court ultimately denied the petition on the basis that it was untimely, and the state supreme court affirmed on that basis. The remittitur issued on February 11, 2013.
On or about March 7, 2013, petitioner mailed the federal petition for filing.
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 14, 2005. Absent tolling or delayed accrual, the one-year limitation period expired on December 14, 2006.
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, absent other tolling or delayed accrual, petitioner's October 2007 state petition would render his federal petition timely, for two reasons. First, absent other tolling or delayed accrual, the federal limitation period already had expired nearly one year earlier, on December 14, 2006. Second, an untimely state petition 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 14, 2006. The federal petition in this matter was not mailed for filing until on or about March 7, 2013, six years and nearly three 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 presents a number of factual and legal arguments discussed further below. However, at the outset, petitioner did not present competent evidence providing a basis for overcoming the untimeliness ...