United States District Court, D. Nevada
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 ...