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Parker v. Neven

United States District Court, D. Nevada

July 18, 2014

DWIGHT NEVEN, et al., Respondents.


KENT J. DAWSON, 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 subject to dismissal as time-barred and also as completely unexhausted. This order follows upon a prior show-cause order (#7) and petitioner's two responses (## 25 & 26) thereto.


Petitioner Joel Kenneth Parker challenges his Nevada state conviction, pursuant to a jury verdict, of burglary and robbery. The following procedural history is undisputed.

Petitioner initially was found guilty of burglary, robbery and grand larceny auto. On direct appeal, the Supreme Court of Nevada affirmed as to the burglary and robbery convictions. The court reversed the grand larceny auto conviction and remanded with instructions to vacate that conviction.

The state supreme court's order was filed on December 2, 2008. An amended judgment of conviction was filed in the state district court on January 22, 2009, and the time to appeal the amended judgment expired on Monday, February 23, 2009. The time to file a petition for a writ of certiorari in the United States Supreme Court from the December 2, 2008, state supreme court order expired on March 2, 2009.

Thereafter, while petitioner sought procedural relief, only, in state district court, the only proceeding that he filed in the state supreme court was a letter construed as a petition that was filed on May 18, 2010. The court denied the petition on the following grounds:

This is a proper person petition for extraordinary relief. We have reviewed the documents submitted in this matter, and without deciding upon the merits of any claims, we decline to exercise original jurisdiction in this matter

The state supreme court denied the petition on June 9, 2010, and the remittitur issued on July 8, 2010. Petitioner submitted an untimely petition for rehearing on July 20, 2010, after the issuance of the remittitur, which was denied on September 13, 2010.

The federal petition was mailed to the Clerk of this Court on or about July 25, 2011.


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 filing is not "properly filed" and thus does not statutorily toll the federal limitation period. Pace v. DiGuglielmo, 544 U.S. 408 (2005).

In the present case, the federal limitation period began running after the time for seeking certiorari review expired following the direct appeal on March 2, 2009. Absent tolling or delayed accrual, the limitation period expired one year later, on March 2, 2010.

The federal petition in this matter was not constructively filed until on or about July 25, 2011, more than a year and seven months after the federal limitation period already had expired, absent tolling or delayed accrual. The May 18, 2010, original writ petition filed in the Supreme Court of Nevada was filed after the expiration of the federal limitation period on March 2, 2010, and that filing therefore has no effect on the calculation of the limitation period absent other tolling or delayed accrual. The petition therefore is untimely on its face.

Equitable Tolling

In an extensive filing, petitioner maintains that actions of a local jail and the state courts establish a basis for equitable tolling excusing his failure to file a timely federal petition.

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, 130 S.Ct. 2549, 2562 (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).

The following factual assertions[1] by petitioner and related contemporaneous facts noted by the Court provide the backdrop to petitioner's claim of equitable tolling:

(1) on November 22, 2006, petitioner was transferred to the North Las Vegas Detention Center (NLVDC) awaiting trial on federal charges;
(2) on January 6, 2009, this Court issued an order in 2:06-cr-00109-PMP-LRL to NLVDC to "provide the Defendant... while he is in custody in that facility access to the law library a total of twelve hours a day on the days he is presently scheduled to have access to the law library;"
(3) the Court notes that nothing in the order or the minutes from the same date reflect that the Court was directing this extent of law library access for petitioner to file either a state or federal petition; rather the order was issued in connection with petitioner's request that he be allowed to file motions in proper person in the pending federal criminal case that his defense counsel had not filed or would not file;
(4) petitioner maintains that NLVDC did not fully comply with the Court's order, although the jail offered him expanded library access on a different schedule;[2]
(5) between January 21, 2009, and March 4, 2009, Parker thereafter filed four proper person motions in the federal criminal case, totaling 24 pages in the aggregate;
(6) meanwhile, petitioner asserts that he wrote a February 14, 2009, letter to the presiding judge from his state criminal case requesting that the judge "assist me, by granting me counsel, or telling me what I must do;"[3]
(7) in the letter as presented by petitioner, Parker expressly acknowledged that "I understand that without paying the filing fee, I may file a postconviction petition for a writ of habeas corpus to obtain relief from my conviction;"
(8) as noted previously herein, the federal limitation period began running after March 2, 2009, absent tolling or delayed accrual;
(9) petitioner asserts that on March 5, 2009, he received a letter from his prior deputy public defender stating that the letter to the judge had been forwarded to her, that she had placed the matter on calendar to withdraw as counsel, and allegedly that he thereafter could request a hearing to have an attorney appointed;[4]
(10) petitioner asserts that he sent a second letter to the presiding judge on March 23, 2009, requesting that the judge appoint counsel;[5]
(11) in the letter as presented by petitioner, Parker expressly acknowledged that "I understand that a petition that challenges the validity of my judgment or sentence must be filed within one year after entry of the judgment of conviction or, if an appeal has been taken from the judgment, within one year after the supreme court issues its remittitur;"
(12) petitioner asserts that he received a letter from the state court clerk informing him that his March 5, 2009, request had been denied because, inter alia: "YOUR REQUESTS NEED TO BE MADE IN THE FORM OF A MOTION;"[6]
(13) petitioner asserts that he filed a motion on June 3, 2009, requesting withdrawal of counsel, a copy of the defense file, and appointment of counsel;[7]
(14) in the motion as presented by petitioner, he stated that "I did graduate from high school, and have some ...

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