United States District Court, D. Nevada
JENNIFER A. DORSEY, District Judge.
This habeas matter under 28 U.S.C. § 2254 comes before the Court on a sua sponte inquiry of 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 an earlier show-cause order (Doc. 3) and petitioner's proper person response (Doc. 10) thereto.
The papers on file and the online docket records of the Nevada state courts reflect the following state and federal court procedural history, which is not disputed by petitioner:
Petitioner Benjamin Guaydacan challenges his Nevada state conviction following a jury verdict, of one count of first-degree murder with the use of a deadly weapon and one count of burglary while in possession of a firearm. The Supreme Court of Nevada affirmed the conviction on direct appeal in a January 30, 2008, order of affirmance in No. 47146.
The ninety-day time period for filing a petition for a writ of certiorari in the United States Supreme Court expired on April 29, 2008.
More than fifteen months later, on August 6, 2009, petitioner, through appointed counsel, filed a state post-conviction petition. The state district court dismissed the petition as untimely, and the Supreme Court of Nevada affirmed in No. 54736. The order of affirmance was filed on September 10, 2010, and the remittitur issued on October 7, 2010.
Approximately ten months later, on August 9, 2011, petitioner filed a second state postconviction petition in proper person. The state district court dismissed the petition as untimely, and the Supreme Court of Nevada affirmed in No. 60679. The order of affirmance was filed on November 12, 2012, and the remittitur issued on December 13, 2012.
Nearly eleven months later, on or about November 4, 2013, petitioner mailed the federal petition in this matter to the Clerk of this Court 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).
A. Base Calculation of the Federal 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." The federal limitation period therefore began running in this case after the time period for seeking certiorari review expired: April 29, 2008. Absent tolling or delayed accrual, the limitation period expired one year later on April 29, 2009.
The federal petition in this case was not constructively filed until November 4, 2013, more than four years after the federal limitation period had ...