United States District Court, D. Nevada
ANDREW P. GORDON, 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 with prejudice as time-barred for failure to file the petition within the one-year limitation period in 28 U.S.C. § 2244(d)(1). This order follows upon an earlier show-cause order (Dkt. #4), a response (Dkt. #8) by respondents with respect to the prison mail log, and petitioner's response (Dkt. #9) thereafter to the show-cause order.
The relevant procedural history is not disputed by petitioner.
Petitioner Robert Lee Stephens was convicted, pursuant to a guilty plea, of conspiracy to commit robbery and robbery with the use of a deadly weapon.
The Supreme Court of Nevada affirmed the conviction on appeal in a November 5, 2010, order of affirmance in No. 56341 in that court. The time period for filing a certiorari petition in the United States Supreme Court expired on February 3, 2011.
Before the time for seeking certiorari review expired, on January 7, 2011, petitioner filed a state post-conviction petition. The state district court denied relief, and the Supreme Court of Nevada affirmed on September 15, 2011, in No. 58214 in that court. The remittitur issued on October 12, 2011.
After 103 days had passed, on January 24, 2012, petitioner filed a motion to withdraw guilty plea. The state district court denied relief. On November 15, 2012, the Supreme Court of Nevada affirmed in No. 60506 in that court, holding, inter alia, that the motion was barred by laches. Following the denial of a petition for rehearing, the remittitur issued on February 25, 2013.
On June 17, 2014, the Clerk of this Court received and filed the federal petition in this matter. The petition purports to be signed on November 15, 2013, and petitioner asserts in a response to an inquiry on the first page of the petition that it was mailed on November 21, 2013.
In response to a provision of the show-cause order, respondents have informed the Court that the institution in which petitioner is held, High Desert State Prison, no longer maintains an outgoing mail log. Respondents further could not determine a date for a financial "brass slip" reflecting when the petition might have been mailed, and respondents assert that the petition could have been mailed without a brass slip. Respondents attach a copy obtained from the Clerk of a money order receipt reflecting that a money order was issued on June 11, 2014, for payment of the filing fee.
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." However, under 28 U.S.C. § 2244(d)(2), the federal limitation period is statutorily tolled during the ...