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Maki v. Legrand

United States District Court, D. Nevada

March 31, 2014

ROBERT LEGRAND, et al., Respondents.


LARRY R. HICKS, District Judge.

This closed habeas matter under 28 U.S.C. § 2254 comes before the Court on petitioner's motion (#17) to reconsider the order and judgment of dismissal and motion (#18) to reconsider the denial of a certificate of appealability. The motions were both mailed and filed within the time period for seeking relief under Rule 59 of the Federal Rules of Civil Procedure, but the motions initially were not signed by petitioner.

The first motion (#17) remains unsigned. The Court informed petitioner that a signature of a certificate of service did not constitute a signature of the motion itself. He again presented the motion without a signature on the motion rather than the certificate of service.

Petitioner in all events has not established a basis either for reconsideration of the dismissal or of the denial of a certificate of appealability.

Petitioner Charles Joseph Maki sought to challenge his 1994 Nevada state conviction, pursuant to a jury verdict, of three counts of sexual assault on a child under the age of 14 years and five counts of lewdness with a child under the age of 14 years. The present federal petition was filed over a decade after the federal limitation period expired, absent additional tolling or delayed accrual. The present petition further was filed more than three years and seven months after an August 18, 2008, order denying his post-judgment motion seeking to overturn the July 5, 2006, final judgment dismissing his prior federal petition without prejudice in No. 2:01-cv-00268-RLH-PAL.

The prior federal action was dismissed in 2006 after petitioner failed to file a written notice of his change of address and court mail was returned. Petitioner contends, first, that the Court overlooked that personnel at the prison law library could look up where he might be on the computer at any time. Petitioner apparently is responding to a point expressly made in passing in the following footnote:

The Court additionally notes in passing that embedding a new address in a filing does not constitute a written notice of a litigant's new address and does not establish that the Court is aware of the new address. Local Rule LSR 2-2 requires that a litigant "immediately file with the Court written notification of any change of address." This requires that the litigant in fact send a written notice of the change of address, not merely sub silentio embed an address in filings. See ## 12 & 13 (recent notices by petitioner of change of address). Otherwise, the local rule would read only that a litigant "must include his most recent address on all filings." The purpose of such a notice is to avoid what happened here, by providing the Clerk with a clear notice of the plaintiff's change of address. If plaintiff instead had complied with the local rule, he would not have had to rely upon the Clerk independently observing that he used a different address on a recent filing and/or a prison law library tracking him down in the state-wide prison system and forwarding his mail. In both instances, neither the Clerk nor the prison law library can independently determine how long an inmate will be at a particular institutional address. The purpose of a clear notice of change of address is for the plaintiff to clearly indicate to the Clerk where his mail then should be sent, to get the mail sent to the proper place in the first instance. When petitioner failed to comply with the local rule, he created the very situation that the rule is intended to avoid and that led to the dismissal of the prior petition.

#14, at 9 n.10.

Petitioner overlooks the basis for the Court's rejection of his corresponding tolling argument with regard to the untimeliness of this action:

Third, petitioner contends that he was subjected to an unconstitutional State-created impediment with regard to the handling of his mail from this Court in connection with the dismissal of No. 2:01cv-00268. He maintains that he was transported from Lovelock Correctional Center ("Lovelock") to Southern Desert Correctional Center ("Southern Desert") in early 2006, that he listed a Southern Desert address on a filing prior to the dismissal, and that the Lovelock prison law library failed to forward his mail to Southern Desert as allegedly required by policy.
Whatever correctional authorities allegedly failed to do in 2006 did not prevent petitioner from filing a petition at any time prior to the expiration of the federal limitation period otherwise nearly five years earlier on October 30, 2001. § 2244(d)(1)(B) does not operate to revive a long-since expired limitation period where there was no impediment to filing or other basis for tolling or delayed accrual prior to the expiration of the limitation period. Petitioner's argument simply is a non sequitur.
Moreover, even if the Court were through some tortured logic to regard the events in 2006 as a basis for delayed accrual nearly five years after the limitation period already had expired on October 30, 2001, petitioner quite clearly knew of the prior dismissal in early 2008. He did not file the present federal petition until approximately four years later, and over three years after the denial of his motion for relief from judgment in that case. Petitioner presents no viable basis for tolling and/or delayed accrual during those multiple intervening years. None of the well-after-the-fact circumstances from 2006 that petitioner relies upon prevented him from filing the federal petition that he filed in 2012 instead in, e.g., 2011, 2010, or 2009.
Petitioner in essence is seeking to relitigate in this action the dismissal of his first federal petition and the denial therein of his motion for relief from judgment. Petitioner's remedy, if any, with regard to the dismissal of No. 2:01-cv-00268 was via requests for relief filed in that proceeding and/or via an appeal, the latter of which petitioner did not pursue. Nothing that occurred in the prior action provides a basis for rendering timely a second federal petition filed over a decade after the expiration otherwise of the federal limitation period, nearly six years after the prior dismissal, approximately four years after petitioner unquestionably learned of the prior dismissal, and over three years after the denial of a motion for relief from judgment in that case. The dismissal in No. 2:01-cv-00268 is a long since conclusively resolved matter and does not provide a viable basis for rendering the present petition timely multiple ...

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