United States District Court, D. Nevada
January 5, 2017
FRANK HEARRING, Petitioner,
BRIAN WILLIAMS, SR., et al., Respondents.
M. Navarro, Chief Judge United States District Court.
the court are the petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 (ECF No. 6) and
respondents' motion to dismiss (ECF No. 8). The court
finds that the petition is untimely and procedurally
defaulted. The court grants respondents' motion.
has limited the time in which a person can petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254:
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.
28 U.S.C. § 2244(d)(1). If the judgment is not appealed,
then it becomes final thirty days after entry, when the time
to appeal to the Nevada Supreme Court has expired. See
Gonzalez v. Thaler, 132 S.Ct. 641, 653-54 (2012).
See also Nev. R. App. P. 4(b), 26(a). Any time spent
pursuing a properly filed application for state
post-conviction review or other collateral review does not
count toward this one-year limitation period. 28 U.S.C.
§ 2244(d)(2). The period of limitation resumes when the
post-conviction judgment becomes final upon issuance of the
remittitur. Jefferson v. Budge, 419 F.3d 1013, 1015
n.2 (9th Cir. 2005). An untimely state post-conviction
petition is not “properly filed” and does not
toll the period of limitation. Pace v. DiGuglielmo,
544 U.S. 408, 417 (2005). The petitioner effectively files a
federal petition when he delivers it to prison officials to
be forwarded to the clerk of the court. Rule 3(d), Rules
Governing Section 2254 Cases in the United States District
December 30, 2013, pursuant to a plea agreement, the state
district court entered a judgment of conviction against
petitioner for second-degree murder with the use of a deadly
weapon. Ex. 22 (ECF No. 9-22). Petitioner did not appeal. The
judgment of conviction became final, and the one-year period
of § 2244(d)(1) started to run, at the end of January
December 10, 2014, 315 days after the judgment became final,
petitioner filed in the state district court a motion to
withdraw his guilty plea. Ex. 26 (ECF No. 10). The state
district court denied the motion on January 16, 2015. Ex. 30
(ECF No. 10-4). Petitioner did not appeal. The time to appeal
expired at the end of February 17, 2015, taking into account
that the time to appeal otherwise would have expired on a
Sunday and Washington's Birthday. The plea-withdrawal
motion tolled the one-year period under 28 U.S.C. §
2244(d)(2) while it was pending. Tillema v. Long,
253 F.3d 494 (9th Cir. 2001), abrogated on other
grounds, Ford v. Pliler, 590 F.3d 782 (9th Cir.
March 30, 2015, petitioner filed in the state district court
a post-conviction habeas corpus petition. Ex. 31 (ECF No.
10-5). On September 14, 2015, the state district court denied
the petition because it was untimely under Nev. Rev. Stat.
§ 34.726(1). Ex. 35 (ECF No. 10-9). The notice of entry
of that order was filed on September 21, 2015. Ex. 36 (ECF
No. 10-10). Petitioner appealed. On April 14, 2016, the
Nevada Supreme Court affirmed, holding that the petition was
untimely under § 34.726(1). Ex. 49 (ECF No. 10-23).
Remittitur issued on May 9, 2016. Ex. 50 (ECF No. 10-9). The
untimely state habeas corpus petition did not toll the
one-year period under 28 U.S.C. § 2244(d)(2).
Pace, 544 U.S. at 417.
5, 2016, 504 days after the expiration of time to appeal the
denial of the plea-withdrawal motion, petitioner mailed his
federal habeas corpus petition (ECF No. 6) to this court.
petition (ECF No. 6) is untimely. Between the finality of the
judgment of conviction and the filing of the plea-withdrawal
motion, 315 days passed. Between the expiration of the time
to appeal the denial of the plea-withdrawal motion and the
mailing of the federal habeas corpus petition, 504 days
passed. A total of 819 non-tolled days have passed, and that
exceeds the one-year period of 28 U.S.C. §
also argue that all grounds in the petition are procedurally
defaulted. A federal court will not review a claim for habeas
corpus relief if the decision of the state court regarding
that claim rested on a state-law ground that is independent
of the federal question and adequate to support the judgment.
Coleman v. Thompson, 501 U.S. 722, 730-31 (1991).
In all cases in which a state prisoner has defaulted his
federal claims in state court pursuant to an independent and
adequate state procedural rule, federal habeas review of the
claims is barred unless the prisoner can demonstrate cause
for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure
to consider the claims will result in a fundamental
miscarriage of justice.
Id. at 750; see also Murray v. Carrier, 477
U.S. 478, 485 (1986). The ground for dismissal upon which the
Nevada Supreme Court relied in this case is an adequate and
independent state rule. Loveland v. Hatcher, 231
F.3d 640 (9th Cir. 2000); Moran v. McDaniel, 80 F.3d
1261 (9th Cir. 1996).
three grounds in the petition (ECF No. 6) correspond to the
three grounds that petitioner raised in his state habeas
corpus petition. See Ex. 31 (ECF No. 10-5). The
Nevada Supreme Court ruled that those grounds were untimely.
Ex. 49 (ECF No. 10-23). Petitioner has not demonstrated cause
or prejudice. Therefore, the three grounds in the petition
are procedurally defaulted.
jurists would not find the court's conclusions to be
debatable or wrong, and the court will not issue a
certificate of appealability.
THEREFORE ORDERED that respondents' motion to dismiss
(ECF No. 8) is GRANTED. This action is DISMISSED with
prejudice because it is untimely and because all grounds are
procedurally defaulted. The clerk of the court shall enter
judgment accordingly and close this action.
FURTHER ORDERED that a certificate of appealability is
The petition (ECF No. 6) would be
untimely even if the time spent on the untimely state habeas
corpus petition was tolled. Non-tolled time would be 315 days
between finality of judgment and the plea-withdrawal motion,
41 days between the end of the plea-withdrawal proceedings
and the filing of the state habeas corpus petition, and 57
days between the issuance of the remittitur in the state
habeas corpus proceedings and the mailing of the federal
habeas corpus petition. The total would be 413 days, which
still exceeds the one-year period of 28 U.S.C. §