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Speake v. Neven

United States District Court, District of Nevada

January 22, 2015

LANCE E. SPEAKE, Petitioner,
v.
D. NEVEN, et al., Respondents.

ORDER

JENNIFER DORSEY, UNITED STATES DISTRICT JUDGE

This action is a pro se petition for a writ of habeas corpus filed under 28 U.S.C. § 2254 by a Nevada state prisoner. Respondents move to dismiss the petition as time-barred because it was filed long after the one-year statute of limitations for federal habeas corpus petitions ran. Doc. 8. I find that the petition was fatally late and that petitioner has not demonstrated any basis for equitable tolling of the filing deadline, and I grant the motion to dismiss.

I. Procedural History

On March 23, 2009, in the Eighth Judicial District Court in Clark County, Nevada, pursuant to a plea agreement, a judgment of conviction was entered against petitioner for the offense of felony incest. Exhibit 6. Petitioner was sentenced to a term of life with a minimum parole eligibility of 72 months. Id. In his plea agreement, petitioner waived the right to appeal the conviction “unless the appeal is based upon reasonable constitutional jurisdictional or other grounds that challenge the legality of the proceeding and except as otherwise provided in subsection 3 of NRS 174.053.” Exhibit 3, at p. 4. Petitioner did not file a direct appeal of his conviction.

On February 28, 2012, petitioner filed a pro se post-conviction habeas petition in the state district court. Exhibit 18. By order filed September 21, 2012, the state district court denied the petition as time-barred pursuant to NRS 34.726 and found that petitioner failed to show good cause or actual prejudice sufficient to excuse his failure to file a timely petition. Exhibit 23. Petitioner appealed the denial of his post-conviction habeas petition. Exhibit 24. On April 9, 2013, the Nevada Supreme Court affirmed the denial of the petition as untimely under NRS 34.726 and ruled that petitioner had not shown good cause to excuse his failure to file a timely petition. Exhibit 28. On June 12, 2013, the Nevada Supreme Court denied petitioner’s motion for rehearing. Exhibit 29. Remittitur issued on July 9, 2013.

Petitioner dispatched his pro se federal habeas petition to this court on October 29, 2013. Doc. 5, at p. 1, item 5. Respondents filed the instant motion to dismiss the petition. Doc. 8. Petitioner then filed a document entitled “motion of points and authorities and criminal laws.” Doc. 11. Respondents oppose petitioner’s motion, which the court now construes as an opposition to the motion to dismiss. Respondents have indicated that, to the extent the court construes petitioner’s motion as an opposition to the motion to dismiss, respondents do not seek to file a reply to the opposition. Doc. 12, at p. 2. This matter being fully briefed, the court now considers the motion to dismiss the petition.

II. Discussion

Respondents argue that the federal petition was untimely filed. The Antiterrorism and Effective Death Penalty Act (AEDPA) amended the laws controlling federal habeas corpus practice to impose a one-year statute of limitations on the filing of federal habeas corpus petitions:

(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 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.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted ...

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