United States District Court, D. Nevada
January 6, 2017
THOMAS MORALES, Petitioner,
D. W. NEVEN, et al., Respondents.
M. NAVARRO, CHIEF JUDGE.
the court are the first amended petition for writ of habeas
corpus (ECF No. 14), respondents' motion to dismiss (ECF
No. 20), petitioner's opposition (ECF No. 33), and
respondents' reply (ECF No. 37). The court finds that
this action is untimely and that petitioner is not entitled
to equitable tolling. The court grants the motion in part.
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 appealed,
then it becomes final when the Supreme Court of the United
States denies a petition for a writ of certiorari or when the
time to petition for a writ of certiorari expires.
Jimenez v. Quarterman, 555 U.S. 113, 119-20 (2009).
See also Sup. Ct. R.13(1). 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). 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
2244(d) is subject to equitable tolling. Holland v.
Florida, 560 U.S. 631, 645 (2010). “[A]
‘petitioner' is ‘entitled to equitable
tolling' only if he shows ‘(1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way' and
prevented timely filing.” Id. at 649 (quoting
Pace, 544 U.S. at 418).
15, 2009, the state district court entered a judgment of
conviction against petitioner for first-degree murder with
the use of a deadly weapon. Ex. 70 (ECF No. 23-19).
Petitioner appealed. The Nevada Supreme Court affirmed on
July 15, 2010. Ex. 89 (ECF No. 24-13). The judgment of
conviction became final with the expiration of time to
petition for a writ of certiorari on October 13, 2010.
April 25, 2014, petitioner filed a post-conviction habeas
corpus petition in the state district court. Ex. 92 (ECF No.
24-16). The state district court ruled that the petition was
untimely under Nev. Rev. Stat. § 34.726(1). Ex. 106 (ECF
No. 25-5). Petitioner appealed. The Nevada Supreme Court
affirmed, agreeing that the petition was untimely. Ex. 114
(ECF No. 25-13). Remittitur issued on January 6, 2015. Ex.
115 (ECF No. 25-14).
then turned to federal court. The parties disagree over when
petitioner mailed his original, proper-person petition to
this court. Petitioner did not state in the available space
of the petition form when he mailed the petition. The court
received the petition on February 3, 2015. Petitioner dated
the petition January 9, 2015. However, a statement of his
inmate account, which he attached to his petition, is dated
January 16, 2015. Petitioner could not have mailed the
petition to the court before that date. For the purposes of
this order, the court will assume that petitioner mailed the
original petition to the court on January 16, 2015. If the
actual date of mailing later becomes relevant, the parties
might need to determine whether the prison had a mail log and
when petitioner delivered the petition for mailing.
court appointed counsel, who filed the first amended petition
(ECF No. 14) on January 25, 2016.
statutory matter, this action is untimely. The judgment of
conviction became final on October 13, 2010. Petitioner filed
nothing in state court over the following year. The one-year
period of § 2244(d)(1) expired on October 13, 2011.
Petitioner's state habeas corpus petition did not toll
the one-year period for two reasons. First, the one-year
period already had expired, and no time was left to toll.
Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.
2003). Second, the state habeas corpus petition was untimely
under state law and thus ineligible for tolling under §
2244(d)(2). Pace, 544 U.S. at 417. Equitable tolling
is necessary for the court to consider the first amended
presents two arguments for equitable tolling. Each argument
by itself is insufficient to make the action timely. The
court would need to accept both arguments to not dismiss the
action as untimely.
petitioner argues that direct-appeal counsel did not send him
a copy of the Nevada Supreme Court's decision on direct
appeal, but that direct-appeal counsel sent him a copy of
that court's remittitur without explanation of what a
remittitur is. Petitioner further argues that direct-appeal
counsel told him at the start of the direct appeal that the
process could take years-it actually took about one year-and
thus he did not think to ask inquire about the status of his
appeal until years later. Petitioner states that he learned
on May 13, 2013, or May 15, 2013, that his direct appeal had
concluded. Petitioner argues that the one-year period should
be equitably tolled until that time. Second, petitioner
argues that the time spent on the state habeas corpus
petition should be equitably tolled because, without
direct-appeal counsel's failure to inform him of the
conclusion of the direct appeal, he would have timely filed
his state habeas corpus petition. The court is not persuaded.
first argument is questionable. Equitable tolling requires
both an outside extraordinary circumstance that prevented
petitioner from filing a timely petition and diligence.
Holland, 560 U.S. at 649. Petitioner's argument
based upon direct-appeal counsel's failure to inform him
of the Nevada Supreme Court's decision does not show a
circumstance that prevented petitioner from filing
either a federal habeas corpus petition or a state habeas
corpus petition that would have tolled the federal statute of
limitation. Sometimes, a person will file a state habeas
corpus petition while the direct appeal is pending. The
issues likely would not overlap, because Nev. Rev. Stat.
§ 34.810 prohibits a person from raising issues in a
post-conviction petition that he could have raised on direct
appeal. In petitioner's case, simultaneous proceedings
actually would not have existed, because the Nevada Supreme
Court had decided his direct appeal.
petitioner's diligence was doubtful. For this order, the
court assumes that direct-appeal counsel actually did not
send petitioner a copy of the Nevada Supreme Court's
decision. Direct appeal counsel sent petitioner both the
remittitur (ECF No. 24-14), issued on August 10, 2010, and a
cover letter (ECF No. 24-15), dated August 24, 2010. A person
untrained in Nevada law who received the remittitur might
reasonably wonder what this document was. However, the cover
Enclosed, please find copies of the Supreme Court Remittiturs
with regard to the above-captioned matters. As always,
should you have any questions and/or concerns, please do
not hesitate to contact my office.
Ex. 91 (ECF No. 24-15) (emphasis added). Petitioner did more
than hesitate. He consulted Black's Law Dictionary. Years
later, he commented about the supposed delay to another
prisoner, who then told him that the remittitur meant that
the appeal had ended. But he never asked the obvious person,
his direct-appeal counsel, the obvious question, “What
does a ‘remittitur' mean?” Petitioner
possibly can spend the rest of his life in prison. If
diligence is to mean anything, it would mean that he needed
to contact his attorney when he received an unfamiliar
decision on petitioner's first argument for equitable
tolling likely would require factual development. In
particular, the court would want to know whether
direct-appeal counsel actually did send petitioner a copy of
the Nevada Supreme Court's decision on direct appeal,
whether prison mail logs, if they exist, show that petitioner
received mail from direct-appeal counsel, and when petitioner
actually mailed the original petition to this court. However,
the court refrains from deciding this argument because
petitioner's second argument for equitable tolling fails.
v. DiGuglielmo forecloses petitioner's second
argument. Petitioner's state habeas corpus petition was
untimely under Nev. Rev. Stat. § 34.726(1), which
Unless there is good cause shown for delay, a petition that
challenges the validity of a judgment or sentence must be
filed within 1 year after entry of the judgment of conviction
or, if an appeal has been taken from the judgment, within 1
year after the appellate court of competent jurisdiction
pursuant to the rules fixed by the Supreme Court pursuant to
Section 4 of Article 6 of the Nevada Constitution issues its
remittitur. For the purposes of this subsection, good cause
for delay exists if the petitioner demonstrates to the
satisfaction of the court:
(a) That the delay is not the fault of the petitioner; and
(b) That dismissal of the petition as untimely will unduly
prejudice the petitioner.
the start of petitioner's state habeas corpus
proceedings, he recognized that he had a problem with the
timeliness of the petition. In the space provided on the
petition form, petitioner acknowledged that his state habeas
corpus petition was late under § 34.726(1), and he
argued why the state district court should find cause and
prejudice to excuse the operation of § 34.726(1). Ex.
92, at 5-7 (ECF No. 24-16). If the state courts determined
that the petition was inexcusably untimely, then a
subsequently filed federal habeas corpus petition also would
be untimely. This is what happened. The Supreme Court
addressed this issue in Pace. “A prisoner
seeking state postconviction relief might avoid this
predicament, however, by filing a ‘protective'
petition in federal court and asking the federal court to
stay and abey the federal habeas proceedings until state
remedies are exhausted.” 544 U.S. at 416. When
petitioner knows from the start that he has a problem with
the timeliness of his state habeas corpus petition, and when
the Supreme Court has given a potential solution to that
problem, and when petitioner does not try that potential
solution, then petitioner was not acting with the diligence
required for equitable tolling.
no extraordinary circumstance prevented petitioner from
litigating a petition in federal court while the state
petition was pending. The very fact that petitioner was able
to file a state petition shows that nothing was blocking him
from this court.
action is untimely, and the court will dismiss it.
also argue that ground 5 of the first amended petition is
procedurally defaulted. Ground 5 is a claim of ineffective
assistance of counsel. Petitioner raised the same claim in
his state habeas corpus petition. The state courts ruled that
the petition was untimely under Nev. Rev. Stat. §
34.726. The court will not rule upon respondents'
argument at this time because the court is dismissing the
action in its entirety as untimely.
court will not issue a certificate of appealability.
Reasonable jurists could not debate that petitioner knew that
he had a problem with the timeliness of his state habeas
corpus petition, and thus with the timeliness of a federal
habeas corpus petition. Reasonable jurists also could not
debate that Pace gave petitioner a potential
solution to the problem of timeliness, i.e., a
protective federal petition filed simultaneously with his
state petition. Finally, reasonable jurists could not debate
that petitioner did not try that potential solution.
Consequently, reasonable jurists could not debate that
equitable tolling is unwarranted.
have filed a motion for waiver of compliance with LR IA 10-3
(ECF No. 26) and a motion for leave to exceed page limit (ECF
No. 36). The court grants these motions.
THEREFORE ORDERED that respondents' motion for waiver of
compliance with LR IA 10-3 (ECF No. 26) is GRANTED.
FURTHER ORDERED that respondents' motion for leave to
exceed page limit (ECF No. 36) is GRANTED.
FURTHER ORDERED that respondents' motion to dismiss (ECF
No. 20) is GRANTED. This action is DISMISSED with prejudice
because it is untimely. The clerk of the court shall enter
judgment accordingly and close this action.
FURTHER ORDERED that a certificate of appealability is
Although petitioner does not argue this
point, it would do him no good to argue that a protective
petition would have been futile because the statute of
limitations already had expired. If petitioner had filed a
federal petition simultaneously with the filing of the state
petition, then he would have needed to argue for equitable
tolling only from the finality of his judgment of conviction
to when he learned that his direct appeal had concluded. By
waiting until his untimely state habeas corpus proceedings
had concluded, petitioner needed also to argue that the time
spent on those proceedings also should be equitably