United States District Court, D. Nevada
ROBERT C. JONES, 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 timebarred 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 courts reflect the following.
Petitioner Christopher Street was convicted, pursuant to a guilty plea, of possession of stolen property and was adjudicated as a habitual criminal.
The judgment of conviction was filed on November 7, 2007. Petitioner did not file a direct appeal, and the time for doing so expired on Friday, December 7, 2007.
After 327 days had passed, on October 30, 2008, petitioner filed a state post-conviction petition. Proceedings on the petition ultimately concluded on January 7, 2013, with the issuance of the remittitur after the state supreme court affirmed the denial of relief in No. 59244 in that court.
Thereafter, on April 4, 2013, petitioner filed a second state post-conviction petition. The state supreme court held that the petition was untimely in a January 16, 2014, order of affirmance in No. 63575 in that court.
Meanwhile, on May 14, 2013, petitioner filed a motion to correct sentence. The state district court denied the motion on December 2, 2013, and petitioner did not file an appeal. On or about July 22, 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 December 7, 2007.
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. Petitioner's first state petition therefore tolled the running of the ...