United States District Court, D. Nevada
MIRANDA M. DU, District Judge.
This habeas matter currently is before the Court on a sua sponte inquiry as to whether the petition is subject to dismissal as time-barred. The prior show-cause order incorrectly indicated that: (a) petitioner's state petition tolled the federal limitation period without any further showing; and (b) petitioner, who was not in physical custody, was subject to the prison mailbox rule as to the filing date of the federal petition. See dkt. no. 5, at 2, lines 17-20. The better course would be to direct petitioner to show cause why the petition is not subject to dismissal in response to a correct statement of the relevant background by the Court. This order also directs respondents to confirm for the record the status of petitioner's sentence at the time of the filing of the federal petition.
Petitioner Stephen Eugene Sabo challenges his Nevada state conviction, pursuant to a jury verdict, of trafficking in a controlled substance. He was sentenced on August 17, 2007, to 48 to 120 months, with 190 days credit for time served. The judgment of conviction was filed the same date.
The Supreme Court of Nevada affirmed the conviction on direct appeal on January 14, 2009, and the remittitur issued on February 10, 2009. The time period to seek certiorari review in the United States Supreme Court expired on April 14, 2009.
On February 11, 2010, petitioner filed a pro se state post-conviction petition. After counsel was appointed and filed a supplemental petition, the State filed a motion to dismiss the petition as untimely on August 5, 2010. The state district court denied the motion, and the court thereafter denied the petition on the merits following an evidentiary hearing.
The Supreme Court of Nevada affirmed the denial of the petition instead on the ground that the petition was untimely. The court applied established state law that the one year state limitations period ran from the date the state supreme court clerk issued the remittitur rather than the date that the state district court clerk received the remittitur. The order of affirmance was filed on December 13, 2012, and the remittitur on the state post-conviction appeal issued on January 9, 2013.
Petitioner filed the federal petition on March 21, 2013. Petitioner's papers listed a downtown Reno street address as his current domicile at the time of the federal filing.
Pursuant to Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001), the Court has sua sponte raised 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 of the expiration of the time for seeking such direct review."
In the present case, the federal limitation period began running after the expiration of the time for seeking certiorari review, i.e., after April 14, 2009. Absent tolling or delayed accrual, the limitation period would expire one year later, on April 14, 2010.
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 petition is not properly filed for purposes of statutory tolling under § 2244(d)(2). See Pace v. DiGuglielmo, 544 U.S. 408 (2005).
Petitioner's untimely state petition therefore did not statutorily toll the running of the federal limitation period in and of itself. The statement in the prior show-cause order that the "time period between the filing of the state petition and conclusion of review on the petition would be tolled" was not correct. The mere pendency of the untimely state petition did not statutorily toll the federal limitation period. If petitioner seeks tolling or delayed accrual between February 11, 2010, through January 9, 2013, he ...