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Jonathan Edward Watkins v. James Cox

May 16, 2013

JONATHAN EDWARD WATKINS, PETITIONER,
v.
JAMES COX, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Gloria M. Navarro United States District Judge

ORDER

Petitioner has paid the filing fee. The court has reviewed the petition for a writ of habeas corpus pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts and 28 U.S.C. § 2244(b)(4). Petitioner will need to show cause why the court should not dismiss this action.

This is a second or successive petition. On April 9, 2008, this court denied on the merits petitioner's first federal habeas corpus petition, Watkins v. Cox, 2:04-cv-00849-KJD-GWF (Watkins I). Petitioner appealed, and the court of appeals denied a certificate of appealability on June 16, 2009. On March 27, 2012, petitioner applied to the court of appeals for permission to file a second or successive petition, pursuant to 28 U.S.C. § 2244(b)(3). That court granted the application, finding that petitioner had made a prima facie showing that he had satisfied the requirements of 28 U.S.C. § 2244(b)(2).

Between these two federal actions, petitioner returned to state court. On October 30, 2008, he filed a post-conviction habeas corpus petition in the state district court. That court dismissed the petition on September 13, 2010, because it was untimely pursuant to Nev. Rev. Stat. § 34.726.

Petitioner appealed. Ex. A.*fn1 On November 18, 2011, the Nevada Supreme Court affirmed. It held that the petition was untimely, successive, and abusive of the writ pursuant to Nev. Rev. Stat. §§ 34.726 and 34.810. Ex. F.

The court first will dismiss ground 3. Petitioner alleges in ground 3 that cause and prejudice exist to excuse a procedural default. This ground is an argument against a potential motion to dismiss, and respondents have not yet appeared, let alone filed a response to the petition. Ground 3 is not a claim that petitioner is in custody in violation of the constitution or laws of the United States, which is a requirement for this court to grant relief. See 28 U.S.C. § 2254(a).

The remaining two counts appear to be untimely. Congress has limited the time in which a person can petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). If the judgment is appealed, then it becomes final when the Supreme Court of the United States denies a petition for a writ of certiorari or when the time to petition for a writ of certiorari expires. Jimenez v. Quarterman, 555 U.S. 113, 119-20 (2009). See also Sup. Ct. R. 13(1). Any time spent pursuing a properly-filed application for state post-conviction review or other collateral review does not count toward this one-year limitation period. 28 U.S.C. § 2244(d)(2). The period of limitation resumes when the post-conviction judgment becomes final upon issuance of the remittitur. Jefferson v. Budge, 419 F.3d 1013, 1015 n.2 (9th Cir. 2005). An untimely state post-conviction petition is not "properly filed" and does not toll the period of limitation. Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005). A prior federal habeas corpus petition does not toll the period of limitation. Duncan v. Walker, 533 U.S. 167, 181-82 (2001). Section 2244(d) is subject to equitable tolling. Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). "[A] 'petitioner' is 'entitled to equitable tolling' only if he shows '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Id. at 2562 (quoting Pace, 544 U.S. at 418). The petitioner effectively files a federal petition when he mails it to the court. Stillman v. Lamarque, 319 F.3d 1199, 1201 (9th Cir. 2003). The court can raise the issue of timeliness on its own motion. Day v. McDonough, 547 U.S. 198, 209 (2006); Herbst v. Cook, 260 F.3d 1039, 1043 (9th Cir. 2001).

Ground 1 is a claim that the prosecution did not disclose material exculpatory or impeachment evidence, in violation of Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). Petitioner was convicted of first-degree murder of Jay Bowen, by beating Bowen to death, and of robbing Bowen. In Watkins I, the court allowed petitioner to conduct discovery. Petitioner found a certificate from the Washoe County District Attorney, stating that an inquest into Bowen's death need not be held because Bowen died from injuries "sustained as a result of blunt force automobile trauma." Ex. B. Petitioner does not allege when this certificate was disclosed to him, ...


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