United States District Court, D. Nevada
KENT J. DAWSON, District Judge.
This represented habeas matter comes before the Court for review.
While this matter was docketed as an immigration habeas matter, the petition instead seeks to challenge petitioner's September 21, 2001, Nevada state conviction, pursuant to a guilty plea, of possession of a controlled substance with intent to sell. Only state official defendants are named. The petition accordingly arises under 28 U.S.C. § 2254, which the petition expressly invokes.
On March 30, 2012, the Court ordered the represented petitioner to show cause why the petition should not be dismissed as time-barred under the one-year federal limitation period in 28 U.S.C. § 2244(d)(1). Absent tolling or delayed accrual, the federal limitation period expired under § 2244(d)(1)(A) on October 22, 2002, one year after the expiration of the time for filing a direct appeal from the judgment of conviction on Monday, October 22, 2001. The federal petition was not filed until February 13, 2012, over nine years after the federal limitation period had expired on its face absent tolling or delayed accrual.
Petitioner contended in response that: (a) the limitation period instead did not begin to run until after the March 31, 2010, decision in Padilla v. Kentucky, 559 U.S. 356 (2010), because there allegedly was an "impediment to filing an application created by State action in violation of the Constitution or laws of the United States" for purposes of § 2244(d)(1)(B) prior to the issuance of Padilla; and (b) the limitation period thereafter was tolled under § 2244(d)(1) during the pendency of his state post-conviction petition from June 18, 2010, through February 6, 2012.
The Court directed a response from the state respondents. In addition to responding to petitioner's timeliness arguments, respondents raised a procedural default defense based upon the state petition having been rejected on, inter alia, the basis of laches.
On April 15, 2013, petitioner sought an extension of time to file a reply to the respondents' response. The Court ultimately granted an extension through June 15, 2013.
Petitioner thereafter did not file any further papers.
On March 3, 2014, the Clerk entered a notice that the action would be dismissed for want of prosecution if no action was taken within thirty days. No action was taken thereafter.
The Court will dismiss the petition as untimely under the federal limitation period. The represented petitioner has been afforded a full opportunity to respond on the issue, and petitioner has not established that the petition was timely.
Petitioner's reliance on § 2244(d)(1)(B) to establish delayed accrual is wholly misplaced.
First, a Supreme Court decision overturning prior precedent does not "remove an impediment" to the filing of a petition for purposes of § 2244(d)(1)(B). Congress established the rule specifically applicable to intervening Supreme Court decisions instead in § 2244(d)(1)(C). Under that provision, the limitation period runs from "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." The Supreme Court has held that Padilla is not retroactively applicable on collateral review to convictions - like petitioner's - that became final before the March 31, 2010, decision in Padilla. See Chaidez v. United States, 133 S.Ct. 1103 (2013). Delayed accrual therefore clearly is not available under § 2244(d)(1)(C). See also Dodd v. United States, 545 U.S. 353 (2005)(discussing parallel provision under 28 U.S.C. § 2255(f)(3)). Congress has specifically delineated the circumstances in which an intervening Supreme Court decision will delay accrual of the federal limitation period. Petitioner cannot satisfy the requirements of that specific provision, and he may not successfully invoke other provisions that are not specifically ...