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Marquez v. McDaniel

United States District Court, D. Nevada

January 17, 2017

ALEX MARQUEZ, Petitioner,
v.
E. K. McDANIEL, et al., Respondents.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE

         Before the Court are the first amended petition for writ of habeas corpus (ECF No. 14), respondents' motion to dismiss (ECF No. 30), Petitioner's opposition (ECF No. 44) with an amendment (ECF No. 49), and respondents' reply (ECF No. 47). The Court grants respondents' motion in part because this action is untimely.

         Congress 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 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). 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).

         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).

         The petitioner effectively files a federal petition when he delivers it to prison officials in compliance with the prison's legal mail system to be forwarded to the Clerk of the Court. Rule 3(d), Rules Governing Section 2254 Cases in the United States District Courts.

         After a jury trial, Petitioner was convicted in state district court of one count each of first-degree murder with the use of a deadly weapon, attempted robbery with the use of a deadly weapon, burglary with the use of a deadly weapon, battery with a deadly weapon causing substantial bodily harm, and battery with a deadly weapon. (Exh. 53 (ECF No. 34-3).[1]) The state district court entered its judgment of conviction on January 17, 2007. (Id.) Petitioner appealed. The Nevada Supreme Court affirmed on May 6, 2008. (Exh. 75 (ECF No. 34-25).) For the purposes of 28 U.S.C. § 2244(d)(1), the judgment of conviction became final on August 4, 2008, with the expiration of time to file a petition for a writ of certiorari.

         The judgment of conviction contained an illegal sentence for burglary with the use of a deadly weapon. The state district court imposed a sentence for the crime of burglary itself and an equal and consecutive sentence for the use of a deadly weapon, under the version of NRS § 193.165 in effect at the time. (Exh. 56, at 3 (ECF No. 34-6).) However, the deadly-weapon enhancement of § 193.165 is inapplicable to burglary because the burglary statute itself provides for an enhanced sentence if a deadly weapon is involved. See NRS § 205.060(4). On December 10, 2008, the state district court entered a corrected judgment of conviction that removed the consecutive sentence for use of a deadly weapon in the burglary. (Exh. 77 at 3 (ECF No. 35-2).) The corrected judgment made no other changes to petitioner's sentences. The corrected judgment had no effect upon the federal one-year period of limitation under 28 U.S.C. § 2244(d)(1) because there was nothing to appeal.

         On March 11, 2009, petitioner filed in state district court a post-conviction habeas corpus petition. (Exh. 82 (ECF No. 35-7).) The state district court denied the petition on January 13, 2014. (Exh. 145 (ECF No. 37-20).) Petitioner appealed. The Nevada Court of Appeals affirmed on February 24, 2015. (Exh. 175 (ECF No. 38-25).) Remittitur issued on March 24, 2015. (Exh. 176 (ECF No. 38-26).) The federal ...


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