United States District Court, D. Nevada
JUAN M. ALCARAZ, Petitioner,
BRIAN WILLIAMS, et al., Respondents.
JAMES C. MAHAN, District Judge.
This is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by a Nevada state prisoner. This matter comes before the court on respondents' motion to dismiss the petition. (ECF No. 10).
I. Procedural History
Petitioner was convicted, pursuant to a jury verdict, of second degree murder with the use of a deadly weapon and carrying a concealed firearm. (Exhibit 25). The judgment of conviction, filed on December 7, 2006, in case number 05C214271, reflects that for the second degree murder conviction, petitioner was sentenced to life imprisonment with a minimum parole eligibility of ten years, plus an equal and consecutive term for the use of a deadly weapon. (Exhibit 30). On the conviction for carrying a concealed weapon, petitioner was sentenced to 24 to 60 months imprisonment, with this count running consecutive to the second degree murder count. ( Id. ).
Petitioner appealed his judgment of conviction. (Exhibit 31). On direct appeal, petitioner asserted a claim challenging the sufficiency of the evidence for the second degree murder conviction. (Exhibit 44). Petitioner also asserted a claim of prosecutorial misconduct regarding the State's rebuttal closing argument. ( Id. ). On March 10, 2008, the Nevada Supreme Court affirmed petitioner's convictions. (Exhibit 47). Remittitur issued on April 4, 2008. (Exhibit 49).
On January 13, 2009, petitioner filed a pro se post-conviction habeas petition in the state district court, alleging several claims of ineffective assistance of trial and appellate counsel. (Exhibit 52). On February 23, 2009, the state district court denied the petition. (Exhibit 58). On April 8, 2010, the Nevada Supreme Court reversed the denial of the petition and remanded the case to the state district court. (Exhibit 67).
On remand, petitioner filed a counseled supplemental post-conviction habeas petition, alleging ineffective assistance of counsel and an equal protection violation. (Exhibit 71). A hearing on the supplemental petition was held in the state district court on May 20, 2011. (Exhibit 84). By written order filed June 23, 2011, the state district court denied the supplemental petition. (Exhibit 88).
Petitioner appealed the denial of his supplemental post-conviction habeas petition. (Exhibit 92). On appeal, petitioner raised the two claims alleged in the supplemental petition, and claimed that the state district court erred in denying the claims in the original pro se post-conviction petition. (Exhibit 102). On May 10, 2012, the Nevada Supreme Court affirmed the denial of the supplemental post-conviction habeas petition. (Exhibit 109). Remittitur issued on June 6, 2012. (Exhibit 111).
Petitioner dispatched his pro se federal petition to this court on May 1, 2013. (Petition, ECF No. 8, at p. 1). Petitioner was directed to pay the $5.00 filing fee for this action. (ECF No. 3). Because it appeared that petitioner failed to pay the filing fee, this action was dismissed without prejudice by order filed July 15, 2013. (ECF No. 4). Petitioner filed a motion for reconsideration, along with an accounting transaction request form indicating that he asked prison officials to collect the filing fee from his inmate account and send it to the court. (ECF No. 6). On May 16, 2014, this court granted petitioner's motion for reconsideration, vacated the dismissal order, and directed respondents to file a response to the petition. (ECF No. 7). Respondents have filed the instant motion to dismiss. (ECF No. 10). Petitioner has filed a response, and respondents filed a reply. (ECF Nos. 19 & 22).
Respondents argue that the federal petition is untimely and should be dismissed on that basis. 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 ...