United States District Court, D. Nevada
For Giovanni Valerio, Petitioner: Thomas Kenneth Lee, LEAD ATTORNEY, Federal Public Defender, Las Vegas, NV.
For Anthony Scillia, Warden, Respondent: Dennis C. Wilson, LEAD ATTORNEY, Nevada Attorney General's Office, Las Vegas, NV.
For Attorney General of the State of Nevada, Respondent: Dennis C. Wilson, LEAD ATTORNEY, Nevada Attorney General's Office, Las Vegas, NV; Catherine Cortez-Masto, Nevada Attorney General's Office, Carson City, NV.
Gloria M. Navarro, Chief United States District Judge.
This action 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.
I. Procedural History
By order filed May 20, 2011, this Court granted respondents' motion to dismiss the petition, because it was untimely and petitioner failed to demonstrate that he was entitled to equitable tolling. (ECF No. 14). Judgment was entered the same date. (ECF No. 15). Petitioner appealed this Court's judgment. (ECF No. 16). On August 5, 2013, the United States Court of Appeals for the Ninth Circuit filed an opinion vacating this Court's judgment and remanding the case with these instructions:
Accordingly, we VACATE the district court's order dismissing the petition as untimely and REMAND for an evidentiary hearing or other further factual development as may be necessary to determine whether Valerio has exercised diligence. If the court concludes that Valerio diligently pursued his rights, then it should consider whether Valerio has otherwise demonstrated that he is entitled to equitable tolling of the one-year limitations period. We need not, and do not, reach the merits of any other issue urged on appeal, including Valerio's claim that his conviction was not final until after the adjudication of his Lozada petition.
(ECF No. 24, at p. 3). On October 16, 2013, this Court conducted a status conference with counsel for both parties, and directed the parties to file supplemental briefs on the issue of equitable tolling of the statute of limitations. (ECF No. 29). Petitioner filed his supplemental memorandum on January 21, 2014. (ECF No. 32). On April 11, 2014, respondents filed an opposition to petitioner's supplemental memorandum. (ECF No. 35).
A. Application of the AEDPA Statute of Limitations
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. 28 U.S.C. § 2244(d). In adopting the AEDPA, Congress imposed a one-year statute of limitations on the filing of a federal habeas petition. 28 U.S.C. § 2244(d)(1). Unless a claim is entitled to delayed accrual under 28 U.S.C. § 2244(d)(1)(B)-(D), the starting date for the AEDPA statute of limitations is based on the finality of the judgment of conviction under 28 U.S.C. § 2244(d)(1)(A). See Mardesich v. Cate, 668 F.3d 1164, 1169-71 (9th Cir. 2012). When a petitioner does not pursue state appellate remedies, his conviction is considered final upon the expiration of time for him to pursue state remedies. Gonzalez v. Thaler, 132 S.Ct. 641, 647, 181 L.Ed.2d 619 (2012). Where a Nevada criminal defendant does not pursue a direct appeal, his judgment is final under 28 U.S.C. § 2244(d)(1)(A) when the time for him to file a direct appeal expires under Nevada R. App. P. 4(b)(1)(A), which is thirty days after the entry of the judgment of conviction.
Petitioner did not file a timely notice of appeal after the state district court entered the judgment of conviction on July 11, 2002. (Exhibit 6). Petitioner's conviction became final on August 10, 2002, when the time for petitioner to file a timely notice of appeal expired. Nev. R. App. P. 4(b)(1)(A). From that point until petitioner filed his first post-conviction habeas petition in the state district court on June 27, 2003, a total of 321 days elapsed. The AEDPA limitations period was tolled while the June 27, 2003 petition and the June 11, 2007 Lozada petition were pending before the state courts. (Exhibits 10 & 15). The Nevada Supreme Court's Order of May 20, 2008, affirmed the denial of the Lozada petition. (Exhibit 23). Remittitur issued on June 17, 2008. (Exhibit 24). From June 18, 2008, petitioner had 44 days remaining of his one-year AEDPA limitations period. The one-year AEDPA statute of limitations expired on July 31, 2008.Petitioner filed his third state post-conviction habeas petition on May 21, 2009, which was after the expiration of the AEDPA statute of limitations in this case. (Exhibit 25). An application for state post-conviction relief does not toll the AEDPA statute of limitations where the petitioner files it after the AEDPA statute of limitations has expired. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). The third state habeas petition did not toll the AEDPA statute of limitations during its pendency. Petitioner signed his federal habeas petition on October 11, 2010. (ECF No. 1-1, at p. 15). Petitioner did not indicate the date on which he dispatched his federal habeas petition for mailing. Giving petitioner the benefit of the doubt, this Court deems the petitioner's federal petition to be filed October 11, ...