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 petitioner's application (Doc. 1) to proceed in forma pauperis and for initial review under Rule 4 of the Rules Governing Section 2254 Cases. The Court finds that petitioner is unable to pay the filing fee, and the pauper application therefore will be granted. Following review, it appears that the petition is subject to dismissal with prejudice as time-barred for failure to file it within the one-year limitation period in 28 U.S.C. § 2244(d)(1). Petitioner is herein 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 Nevada state courts reflect the following:
Petitioner Benjamin Guaydacan challenges his Nevada state conviction (pursuant to a jury verdict) of one count of first-degree murder with the use of a deadly weapon and one count of burglary while in possession of a firearm.
The Supreme Court of Nevada affirmed the conviction on direct appeal in a January 30, 2008, order of affirmance in No. 47146 in that court. The ninety-day time period for filing a petition for a writ of certiorari in the United States Supreme Court expired on April 29, 2008.
More than fifteen months later, on August 6, 2009, petitioner, through appointed counsel, filed a state post-conviction petition. The state district court dismissed the petition as untimely, and the Supreme Court of Nevada affirmed in No. 54736. The order of affirmance was filed on September 10, 2010, and the remittitur issued on October 7, 2010.
Approximately ten months later, on August 9, 2011, petitioner filed a second state postconviction petition. The state district court dismissed the petition as untimely, and the Supreme Court of Nevada affirmed in No. 60679. The order of affirmance was filed on November 12, 2012, and the remittitur issued on December 13, 2012.
Nearly eleven months later, on or about November 4, 2013, petitioner mailed the federal petition in this matter to the Clerk of this Court 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." The federal limitation period therefore began running in this case after the time period for seeking certiorari review expired, i.e., after April 29, 2008. Absent tolling or delayed accrual, the limitation period expired one year later on April 29, 2009.
The federal petition in this case was not constructively filed until November 4, 2013, over four years after the federal limitation period had expired, absent tolling or delayed accrual. Under 28 U.S.C. § 2244(d)(2), the federal one-year limitation period is statutorily tolled during the pendency of a properly filed application for state post-conviction relief or for other state collateral review. Petitioner's two state post-conviction petitions did not render the federal petition timely, for two reasons. First, and most significantly, absent other tolling or delayed accrual, the federal limitation period already had expired on April 29, 2009, months before the first state petition was filed on August 6, 2009. Second, an untimely state proceeding in any event is not "properly filed" and thus does not statutorily toll the federal limitation period. Pace v. DiGuglielmo, 544 U.S. 408 (2005). Thus, neither petition tolled the running of the federal limitation period while the petitions were pending. The petition therefore is untimely on its face.
Petitioner therefore must show cause in writing why the petition should not be dismissed with prejudice as time-barred. In this regard, petitioner is informed that the one-year limitation period may be equitably tolled. Equitable tolling is appropriate only if the petitioner can show: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing. Holland v. Florida, 130 S.Ct. 2549, 1085 (2010). Equitable tolling is "unavailable in most cases, " Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999), and "the threshold necessary to trigger equitable tolling is very high, lest the exceptions swallow the rule, " Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) ( quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). The petitioner ultimately has the burden of proof on this "extraordinary exclusion." 292 F.3d at 1065. He accordingly must demonstrate a causal relationship between the extraordinary circumstance and the lateness of his filing. E.g., Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). Accord Bryant v. Arizona Attorney General, 499 F.3d 1056, 1061 (9th Cir. 2007).
Petitioner also is informed that, under certain circumstances, the limitation period may begin running on a later date or may be statutorily tolled. See 28 U.S.C. § 2244(d)(1)(B), (C) & (D) & (d)(2). Moreover, if petitioner seeks to avoid application of the time-bar based upon a claim of actual innocence, he must come forward with new reliable evidence tending to establish his innocence, i.e., tending to establish that no juror acting reasonably would have found him guilty beyond a ...