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Thomas v. Baca

United States District Court, D. Nevada

June 3, 2014

DONALD THOMAS, Petitioner,
v.
ISDRIO BACA, et al., Respondents.

ORDER

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 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.

Background

The papers on file and the online docket records of the state courts reflect the following.

Petitioner Donald Thomas was convicted, pursuant to a jury verdict, of conspiracy to commit robbery, robbery with the use of a deadly weapon, conspiracy to commit grand larceny auto, and grand larceny auto.

On direct appeal, the Supreme Court of Nevada affirmed in a February 4, 2009, order of affirmance, in No. 51873 in that court. The ninety-day time period for seeking certiorari review in the United States Supreme Court expired on May 5, 2009.

After 141 days had passed, on September 24, 2009, petitioner filed a state post-conviction petition. Proceedings on the petition ultimately concluded on December 12, 2012, with the issuance of the remittitur after the state supreme court affirmed the denial of relief in No. 59780 in that court.

On or about February 24, 2014, petitioner mailed the federal petition to the Clerk of this Court for filing.

Discussion

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 seeking certiorari review, i.e., after May 5, 2009.

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 state petition therefore tolled the running of the federal limitation period from September 24, 2009, through December 12, 2012.

A total of 141 days elapsed before the September 24, 2009, filing of the state petition, leaving 224 days remaining in the one-year limitation period after the December 12, 2012, remittitur. Accordingly, absent other tolling or delayed ...


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