United States District Court, D. Nevada
HOWARD D. McKIBBEN, District Judge.
Petitioner has submitted an application to proceed in forma pauperis (#1) and a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court finds that petitioner is unable to pay the filing fee.
The court has reviewed the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. The court will serve the petition upon respondents for a response. The court also notes that the petition appears to be untimely.
Congress has limited the time in which a person can petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254:
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 time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1). If the judgment is not appealed, then it becomes final thirty days after entry, when the time to appeal to the Nevada Supreme Court has expired. See Gonzalez v. Thaler , 132 S.Ct. 641, 653-54 (2012). See also Nev. R. App. P. 4(b), 26(a). Any time spent pursuing a properly filed application for state post-conviction review or other collateral review does not count toward this one-year limitation period. 28 U.S.C. § 2244(d)(2). An untimely state post-conviction petition is not "properly filed" and does not toll the period of limitation. Pace v. DiGuglielmo , 544 U.S. 408, 417 (2005). Section 2244(d) is subject to equitable tolling. Holland v. Florida , 560 U.S. 631, 645 (2010). "[A] petitioner' is entitled to equitable tolling' only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Id. at 649 (quoting Pace , 544 U.S. at 418). Actual innocence can excuse operation of the statute of limitations. McQuiggin v. Perkins , 133 S.Ct. 1924, 1928 (2013). "[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.'" Id . (quoting Schlup v. Delo , 515 U.S. 298, 329 (1995)). "[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States , 523 U.S. 614, 623 (1998). "In cases where the Government has forgone more serious charges in the course of plea bargaining, petitioner's showing of actual innocence must also extend to those charges." Id. at 624.
In state district court petitioner was convicted of first-degree kidnaping and robbery with the use of a deadly weapon. Petitioner had pleaded guilty while maintaining his innocence. See North Carolina v. Alford , 400 U.S. 25 (1970). The judgment of conviction was entered on October 9, 2009. Petitioner did not appeal, and, because the time to appeal otherwise would have ended on a Sunday, the judgment became final on November 9, 2009.
Three hundred twelve (312) days after the judgment became final, on September 17, 2010, petitioner filed his first post-conviction habeas corpus petition in the state district court. The state district court denied the petition on November 2, 2010. Petitioner did not appeal, and the denial became final on December 2, 2010. The one-year period was tolled while the first state habeas corpus petition was pending. See 28 U.S.C. § 2244(d)(2).
An amended judgment of conviction was entered on November 4, 2010. It only changed the credits for time spent in jail before conviction. The amendment was not an issue that petitioner could have appealed, and thus the amended judgment has no effect upon the date that the one-year period started. Cf. United States v. Colvin , 204 F.3d 1221, 1225 (9th Cir. 2000).
Petitioner filed his second post-conviction habeas corpus petition in the state district court on June 12, 2013. Ultimately, the Nevada Supreme Court determined that the petition was untimely pursuant to Nev. Rev. Stat. § 34.726 and abusive of the writ pursuant to Nev. Rev. Stat. § 34.810. The second state habeas ...