United States District Court, D. Nevada
DA'VAN E. EVANS, Petitioner,
BRIAN WILLIAMS, et al., Respondents.
ANDREW P. GORDON, District Judge.
This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by a Nevada state prisoner. Before the Court is respondents' motion to dismiss.
I. Procedural History
On September 28, 2006, the grand jury returned a true bill against petitioner, and the following day the State filed an indictment charging petitioner with ten felonies. (Exhibits 1 & 2). On February 5, 2007, petitioner pled guilty to one count of first degree kidnapping with the use of a deadly weapon (Count I) and one count of robbery with the use of a deadly weapon (Count II). (Exhibits 3, 4, 5). On April 20, 2007, a judgment of conviction was entered, by which petitioner was sentenced as follows: On Count I, 60-180 months imprisonment plus an equal and consecutive 60-180 months for the deadly weapon enhancement; on Count II, 60-180 months imprisonment plus an equal and consecutive 60-180 months for the deadly weapon enhancement. Count II runs concurrently to Count I. (Exhibit 6). Petitioner did not file a direct appeal.
On May 28, 2008, petitioner filed a motion to reduce, correct, or set aside an illegal sentence, in which he alleged that: (1) trial counsel was ineffective because he coerced his plea with false promises and did not consult with him regarding his right to appeal; (2) his plea was not knowingly and intelligently entered; (3) the plea agreement required him to admit to using a weapon when a weapon was not found and it was not proven that he possessed a weapon; (4) he did not waive his Apprendi or Blakely rights nor did he admit to the fact (of a weapon) used to enhance his robbery sentence. (Exhibit 8). On June 17, 2008, the State filed its opposition. (Exhibit 9). An evidentiary hearing was held on October 20, 2008. (Exhibit 10). On November 18, 2008, the state district court entered its findings of fact, conclusions of law, and order denying the motion to reduce, correct, or set aside an illegal sentence. (Exhibit 11). The court found that petitioner received effective assistance of counsel, that he failed to show in any way that he was prejudiced by his counsel's representation, that counsel's representation did not fall below an objective level of reasonableness, that he failed to meet his burden under either prong of Strickland, that he failed to establish that he requested trial counsel Hart to file an appeal, that Mr. Hart's testimony was more credible than petitioner's, that any discussion between Mr. Hart and petitioner was long after sentencing and not within the 30 days of the filing of the judgment of conviction, and that petitioner was not denied a direct appeal. ( Id. ).
On April 28, 2010, petitioner filed a motion to withdraw plea, which the State opposed. (Exhibits 12 & 13). The state district court denied petitioner's motion by order filed May 26, 2010. (Exhibit 14).
On November 21, 2011, petitioner filed a post-conviction habeas petition and supporting memorandum in the state district court. (Exhibits 15 &16). Petitioner raised the following claims: (1) counsel failed to file a direct appeal on his behalf; (2) trial counsel failed to conduct proper investigation into the facts surrounding his case and therefore coerced him into taking a plea deal without knowingly and intelligently understanding the consequences of the plea; (3) trial counsel failed to investigate and correct the false information in the presentence investigation report regarding his beating the victim when she never made such a statement to the police or anyone else; and (4) his guilty plea was invalid because he was promised that his sentence would run concurrently with the sentence he was serving in Utah. (Exhibits 15 & 16). The State responded to the post-conviction habeas petition. (Exhibit 17). The state district court dismissed the postconviction habeas petition by order filed February 14, 2011. (Exhibit 18). Petitioner appealed from the denial of his post-conviction habeas petition. (Exhibit 19). On November 15, 2012, the Nevada Supreme Court affirmed the district court's dismissal of the post-conviction habeas petition under NRS 34.726, because the petition was filed more than four years after the entry of the judgment of conviction. (Exhibit 21). The Nevada Supreme Court found that petitioner's claim that his counsel failed to inform him of his direct appeal rights did not explain the four-year delay in filing his postconviction habeas petition. ( Id. ). Remittitur issued on December 12, 2012. (Exhibit 23).
On December 6, 2012, petitioner filed a notice of appeal in the state district court, in an apparent attempt to appeal the Nevada Supreme Court's ruling. (Exhibit 22). The Nevada Supreme Court dismissed the appeal on January 10, 2013. (Exhibit 24). Remittitur issued on February 4, 2013. (Exhibit 25).
On August 27, 2013, petitioner dispatched his federal habeas corpus petition to this Court. (Dkt. # 4, Petition, at p. 1). On January 21, 2014, respondents filed a motion to dismiss the petition. (Dkt. #8). Petitioner filed a document on March 3, 2014, indicating that he did not receive a copy of respondents' motion to dismiss. (Dkt. #11). Respondents served the motion on petitioner by mail on March 4, 2014, as stated in their filing of March 7, 2014. (Dkt. #12). On April 3, 2014, petitioner filed a motion to extend his time to file a response to the motion to dismiss. (Dkt. #13). On April 29, 2014, petitioner filed his response to the motion to dismiss. (Dkt. #14). As such, petitioner's motion for an extension of time to file a response to the motion to dismiss is granted, nunc pro tunc, to the date that petitioner's response was filed on April 29, 2014.
II. Respondents' Motion to Dismiss
Respondents argue that the federal petition is untimely. The Antiterrorism and Effective Death Penalty Act (AEDPA) amended the statutes controlling federal habeas corpus practice to include a one-year statute of limitations on the filing of federal habeas corpus petitions. With respect to the statute of limitations, the habeas corpus statute provides:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant ...