Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Morales v. Neven

United States District Court, D. Nevada

January 6, 2017

THOMAS MORALES, Petitioner,
v.
D. W. NEVEN, et al., Respondents.

          ORDER

          GLORIA M. NAVARRO, CHIEF JUDGE.

         Before 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 (2005).

         Section 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).

         On June 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.

         On 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).

         Petitioner 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.

         The court appointed counsel, who filed the first amended petition (ECF No. 14) on January 25, 2016.

         As a 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.