United States District Court, D. Nevada
PHILIP M. PRO, District Judge.
This is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by a Nevada state prisoner represented by counsel. This matter comes before the Court on the parties' responses to the Court's order to show cause why this action should not be dismissed as untimely.
I. Procedural History
On July 28, 2003, in the Eighth Judicial District Court for the State of Nevada, a judgment of conviction, pursuant to a jury trial, was entered against petitioner for the crime of first-degree murder with the use of a deadly weapon. (Exhibit 2). Petitioner appealed. (Exhibit 3). By order filed August 11, 2005, the Nevada Supreme Court reversed the conviction and remanded for a new trial. (Exhibit 4).
Petitioner was retried and again, pursuant to a jury verdict, was convicted of first degree murder with the use of a deadly weapon. (Exhibit 6). An amended judgment of conviction was entered on July 3, 2006. ( Id. ). Petitioner was sentenced to life without the possibility of parole. ( Id. ). Petitioner appealed the conviction to the Nevada Supreme Court. (Exhibit 7). On October 17, 2007, the Nevada Supreme Court affirmed the conviction. (Exhibit 8). Petitioner filed a petition for rehearing, but the petition was denied by the Nevada Supreme Court on January 23, 2008. (Exhibit 10). Remittitur issued on February 19, 2008. (Exhibit 11).
On February 20, 2009, petitioner filed a post-conviction habeas petition in state district court. (Exhibit 13). Petitioner filed an amended post-conviction habeas petition on October 9, 2009. (Exhibit 16). The state district court denied the petition in a written order filed November 9, 2010. (Exhibit 21). The state district court found that the petition was untimely under NRS 34.726(1), but nevertheless considered the merits of many of petitioners claims because it determined that petitioner had good cause to overcome the timeliness bar. The state district court also dismissed certain claims that petitioner could have raised on direct appeal after finding that petitioner had not demonstrated good cause for failing to raise those claims earlier.
Petitioner appealed the denial of his post-conviction habeas petition. (Exhibit 23). By order filed April 11, 2012, the Nevada Supreme Court affirmed the denial of the post-conviction habeas petition. (Exhibit 26). The Nevada Supreme Court agreed with the state district court's findings that the petition was untimely under NRS 34.725(1), and that certain claims that could have been raised on direct appeal were barred by NRS 34.810(1)(b), but determined that petitioner had not shown cause or prejudice to overcome the procedural bars. ( Id. ). The Nevada Supreme Court affirmed the district court's denial of the petition. ( Id. ). Petitioner filed a petition for rehearing. (Exhibit 27). The Nevada Supreme Court denied the petition for rehearing on June 13, 2012. (Exhibit 28). Remittitur issued on July 9, 2012. (Exhibit 29).
On July 18, 2012, petitioner filed a second post-conviction habeas petition in state district court. (Exhibit 30). The state district court dismissed the second post-conviction habeas petition as untimely on September 21, 2012, in an oral decision. (Exhibit 1, Court Minutes, at p. 95). Petitioner appealed. (Exhibit 33). On November 9, 2012, the Nevada Supreme Court directed the state district court to enter a written judgment or order. (Exhibit 34). On November 4, 2013, the state district court entered a written order denying the second post-conviction petition as untimely and for failure to raise cognizable claims for relief. (Order, filed 11/4/2013). On January 16, 2014, the Nevada Supreme Court filed an order of affirmance. (Order, filed 1/16/2014). The Nevada Supreme Court ruled that the petition was untimely under NRS 34.726(1), successive, and an abuse of the writ, under NRS 34.810(1)(b)(2) and NRS 34.810(2). ( Id. ). The Nevada Supreme Court found that petitioner did not have good cause to excuse the filing of a successive and untimely petition. ( Id. ).
On September 11, 2012, petitioner dispatched his pro se federal habeas petition to this Court. (ECF No. 7, at p. 1). On January 15, 2013, this Court entered an order requiring petitioner to show that the petition was timely filed or that he is entitled to equitable tolling. (ECF No. 6). On January 22, 2013, this Court appointed the Federal Public Defender to represent petitioner. (ECF No. 9). Through counsel, petitioner filed a response to the Court's order to show cause on September 19, 2013. (ECF No. 24). Respondents filed a response on October 9, 2013. (ECF No. 29). Petitioner filed a reply on October 28, 2013. (ECF No. 32). The Court now considers the filings presented by the parties in this action.
A. 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 ...