United States District Court, D. Nevada
JENNIFER A. DORSEY, District Judge.
This habeas matter under 28 U.S.C. § 2254 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 upon an earlier show cause order and petitioner's response thereto.
The background procedural history reflected by the papers on file and the online records of the state district court and state supreme court is not in dispute.
Petitioner Brian Wilson challenges his Nevada state conviction, pursuant to a guilty plea, of eleven counts of robbery with the use of a deadly weapon, six counts of burglary while in possession of a firearm, and six counts of burglary.
The judgment of conviction was filed on December 9, 2004, and petitioner did not file a direct appeal. The time to file a direct appeal expired on Monday, January 10, 2005.
On or about October 18, 2005, after the passage of 279 days, petitioner filed a state post-conviction petition. The state district court and state supreme court denied relief. The remittitur issued in No. 46863 in the Supreme Court of Nevada on August 4, 2006.
Over three years later, on or about January 27, 2010, petitioner filed a second state post-conviction petition. The state district court and state supreme court denied relief based upon the untimeliness of the state petition. The remittitur issued in No. 55840 in the Supreme Court of Nevada on October 5, 2010.
Over seventeen months later, on or about March 26, 2012, petitioner filed a motion to modify sentence. The state district court and the state supreme court denied relief. The remittitur issued in No. 61022 in the Supreme Court of Nevada on January 8, 2013.
Approximately two months later, on or about March 13, 2013, petitioner mailed the federal petition in this matter for filing by the Clerk.
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 thirty-day period expired for filing a direct appeal, i.e., after January 10, 2005.
Absent tolling or delayed accrual, the limitation period therefore would expire one year ...