United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
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.
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
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).
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.
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).) 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.
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
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