United States District Court, D. Nevada
ROBERT C. JONES, District Judge.
This habeas matter under 28 U.S.C. § 2254 comes before the Court on a sua sponte inquiry as to whether the petition is time-barred because it was not filed within the one-year limitation period in 28 U.S.C. § 2244(d)(1). This order follows upon an earlier show-cause order (#8), a filing (## 12 & 13) by respondents with state court record materials, and petitioner's subsequent filing (#15) within the time allowed for a response.
The following procedural history is not disputed.
Petitioner John Aubrey Layer challenges his Nevada state conviction, pursuant to an Alford plea, of two counts of attempted lewdness with a child under the age of fourteen.
At the time of his plea, Layer was charged with 14 counts of sexual assault of a minor under fourteen years of age, 9 counts of lewdness with a child under fourteen, 2 counts of indecent exposure, and 2 counts of open or gross lewdness, allegedly occurring collectively between May 14, 1998, and January 31, 2006. The State alleged that Layer committed offenses against his two step-granddaughters, C.P. and M.P.
On January 7, 2009, Layer entered a plea to two counts of attempted lewdness with a child under 14 between May 14, 1998, and January 31, 2006. Layer pled under Alford to "attempting to touch and/or rub and/or fondle the breast(s) and/or the genital area of... [C.P.] with his hand(s) and/or finger(s)" and to performing the same acts on M.P. with his hand(s).
Following sentencing, the judgment of conviction was filed on April 14, 2009.
Petitioner did not file a direct appeal. The time for doing so expired on May 14, 2009.
More than a year later, on July 22, 2010, petitioner filed a state post-conviction petition. The state district court denied the petition as untimely, and the Supreme Court of Nevada affirmed on the same basis. The remittitur issued on March 7, 2011. On or about July 13, 2011, petitioner mailed the federal petition for filing.
Pursuant to Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001), the Court sua sponte has 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).
Base Calculation of the Limitation Period
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." 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. However, an untimely state petition is not "properly filed" and thus does not statutorily toll the federal limitation period. Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005).
In this case, the time for seeking direct review expired on May 14, 2009. The one-year limitation period therefore putatively expired one year later on May 14, 2010.
Petitioner's July 22, 2010, state petition was filed after the federal limitation period already had expired. The untimely state petition in any event would not statutorily toll the federal limitation period. Pace, supra .
The federal petition was not constructively filed until on or about July 13, 2011, more than a year after the federal limitation period had expired, absent delayed accrual or tolling. The federal petition thus is untimely on its face.
The show-cause order clearly stated petitioner's burden with regard to equitable tolling:
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, ___ U.S. ___, ___, 130 S.Ct. 2549, 1085, 177 L.Ed.2d 130 (2009)(quoting prior authority). 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).
#8, at 3-4.
The filing presented by petitioner within the extended show-cause response period establishes no basis for equitable tolling of the federal limitation period. Petitioner titled the filing as a "Motion of Evidence in Support of Habeas Corpus Pursuant to 28 U.S.C. § 2254." He sought therein "to show cause as to why the petitioner's habeas petition should not be dismissed." Petitioner did not present any factual or legal argument therein establishing a viable basis for equitable tolling of the federal limitation period. He instead sought principally to establish that he was entitled to relief on the merits because of alleged ineffective assistance of counsel in connection with his plea. Such a response begs the question when the threshold issue instead is timeliness.
The Court accordingly finds that petitioner failed to carry his burden of establishing a viable basis for equitable tolling. Petitioner was informed of the governing standards and given an opportunity to respond. His response presented no basis for equitable tolling.
The show-cause order further informed petitioner of the statutory provisions in 28 U.S.C. § 2244(d)(1)(B), (C) & (D) allowing for possible delayed accrual of the limitation period. See #8, at 4. Petitioner's merits-focused response similarly did not present any basis for any such delayed accrual. The Court accordingly finds that ...