United States District Court, D. Nevada
Matthew Eric Hargrave, Petitioner, Pro se, Indian Springs, NV.
For Brian Williams, Attorney General of the State of Nevada, Respondents: Catherine Cortez-Masto, LEAD ATTORNEY, Nevada Attorney General's Office, Carson City, NV; Dennis C. Wilson, Nevada Attorney General's Office, Las Vegas, NV.
Gloria M. Navarro, Chief United States District Judge.
This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by a Nevada state prisoner. Before the Court is respondents' motion to dismiss the petition. (ECF No. 10).
I. PROCEDURAL HISTORY
This case arises from petitioner's convictions in the Eighth Judicial District Court, Clark County, Nevada. On March 25, 2009, the State filed an indictment in case number C253084 which charged petitioner with 57 felony counts for possessing a forgery laboratory, the possession sale of personal identifying information to establish a false identity, and related crimes. (Exhibit 2). On December 22, 2009, petitioner signed a guilty plea agreement in case number C253084, in which he pled guilty to one count of establishing or possessing a financial forgery laboratory and stipulated to small habitual criminal treatment; the State retained the right to argue for consecutive sentences. (Exhibit 4). In the guilty plea agreement, petitioner also agreed to plead guilty in case number C252936 to burglary and stipulated to large habitual criminal treatment with a sentence of 10-25 years. Petitioner further agreed to plead guilty in case number C254421 to possession of a firearm by an ex-felon and stipulated to small habitual criminal treatment. In the event the court in case number C253084 or C254421 sentenced him to 8-20 years to run consecutively to case number C252936, the State agreed not to seek consecutive time for the remaining cases. The State also agreed not to oppose dismissal of cases C253570, C253286, C252937, and C252743 and any remaining counts in case number C253084. (Exhibit 4).
On March 25, 2010, in case number C253084, the court sentenced petitioner to 96-240 months to run consecutively to case number C252936, with five days credit for time served. On April 1, 2010, the court filed a judgment of conviction in case number C253084. (Exhibit 5). Petitioner did not file a direct appeal.
On October 30, 2012, petitioner filed a pro se post-conviction habeas petition in state district court. (Exhibit 6). On February 25, 2013, petitioner filed a pro se supplement to his petition. (Exhibit 8). On March 29, 2013, the state district court filed an order dismissing the petition as time-barred pursuant to NRS 34.726, which provides that a post-conviction habeas petition must be filed within one year of the entry of the judgment of conviction. (Exhibit 12). Petitioner appealed. (Exhibit 13). On November 14, 2013, the Nevada Supreme Court affirmed the dismissal of the untimely post-conviction habeas petition, finding that petitioner failed to demonstrate good cause to excuse the untimely filing of the petition. (Exhibit 14). Remittitur issued on December 12, 2013. (Exhibit 15).
Petitioner dispatched his pro se federal habeas petition to this Court on November 26, 2013. (ECF No. 6, at p. 1, item 5). Respondents have filed the instant motion to dismiss the petition. (ECF No. 10). Petitioner filed an opposition to the motion to dismiss. (ECF No. 14). No reply was filed. This matter being fully briefed, the Court now considers the motion to dismiss the petition.
Respondents argue that the federal petition was untimely filed. 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. With respect to the statute of limitations, the habeas corpus statute provides:
(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 ...