United States District Court, D. Nevada
LARRY R. HICKS, District Judge.
This habeas matter under 28 U.S.C. § 2254 comes before the Court for initial review under Rule 4 of the Rules Governing Section 2254 Cases. The filing fee has been paid. Following review, it appears that the petition is subject to dismissal with prejudice as time-barred for failure to file the petition within the one-year limitation period in 28 U.S.C. § 2244(d)(1). Petitioner therefore will be directed to show cause why the petition should not be dismissed as time-barred.
The papers on file and the online docket records of the state supreme court reflect the following.
According to the petition, petitioner Jose Valencia was convicted, pursuant to a guilty plea, of second-degree murder. The petition states that the judgment of conviction was filed on June 27, 2007, and that petitioner did not file a direct appeal. The time for doing so accordingly would expire on July 27, 2007.
According to the state supreme court's May 7, 2010, order in No. 55317 in that court, petitioner filed a motion to vacate the judgment of conviction more than two years after the judgment. The court held that to the extent that Valencia sought to withdraw his plea, the motion was barred by laches. The court further held that to the extent that Valencia sought to modify or correct an illegal sentence, his claims fell outside the narrow scope of claims considered on such a motion. The remittitur on the appeal issued on August 9, 2010.
According to the state supreme court's June 12, 2013, order in No. 62060 in that court, Valencia filed a motion to withdraw guilty plea on July 6, 2012. The court held that the motion was barred by laches. The remittitur on the appeal issued on July 8, 2013.
On or about July 30, 2013, petitioner mailed the federal petition to the Clerk for filing.
Pursuant to Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001), the Court sua sponte raises 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 expired for taking a direct appeal, i.e., after July 27, 2007. Absent tolling or delayed accrual, the limitation period expired one year later on Monday, July 28, 2008, five years before the constructive filing of the federal petition.
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, an untimely state proceeding does not statutorily toll the federal limitation period. See Pace v. DiGuglielmo, 544 U.S. 408 (2005). Moreover, absent other tolling or delayed accrual, it appears that: (a) the federal limitation period expired prior to the filing of petitioner's first state court post-judgment motion; and (b) approximately 23 months passed between the August 9, 2010, issuance of the remittitur as to the first motion and the July 6, 2012, filing of the second motion.
Petitioner therefore must show cause in writing why the petition should not be dismissed ...