United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
case is a petition for a writ of habeas corpus, pursuant to
28 U.S.C. § 2254, by Maynor Villanueva. Villanueva filed
his habeas petition (ECF No. 1) on September 12, 2016.
court has examined the petition, pursuant to Rule 4 of the
Rules Governing Section 2254 Cases in the United States
District Courts. Villanueva's habeas petition appears
defective, in that it appears to have been filed long after
the expiration of the applicable one-year statute of
limitations. The court will, therefore, order Villanueva to
show cause why the court should not dismiss this action.
habeas petition challenges his conviction and sentence for
attempted murder. See Petition for Writ of Habeas
Corpus (ECF No. 1), pp. 1-2. According to the petition, the
judgment of conviction was entered on June 7, 2000, in
Nevada's Eighth Judicial District Court. See id.
at 1-2, 5.
alleges in his petition that he appealed from his conviction,
and the Nevada Supreme Court affirmed on July 25, 2001.
See id. Villanueva states that he did not file a
state habeas corpus action. See id. at 1. Indeed,
his petition does not describe any state court litigation
regarding his conviction between July 25, 2001, and July 22,
2014, when he filed, in the state district court, a motion
for modification of his sentence. See id. at 1-2, 5.
According to Villanueva, the district court denied his motion
for modification of sentence, he appealed from that ruling,
and the Nevada Court of Appeals affirmed on February 24,
2015, and denied rehearing on June 9, 2015. See id.
Antiterrorism and Effective Death Penalty Act (AEDPA),
enacted in 1996, included a one-year statute of limitations
for federal habeas petitions filed by prisoners challenging
state convictions or sentences:
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;
© 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).
direct appeal concluded on July 25, 2001, when the Nevada
Supreme Court affirmed his judgment of conviction.
See Petition for Writ of Habeas Corpus, pp. 1-2, 5.
Adding the ninety days within which a petition for a writ of
certiorari could have been filed (see Supreme Court
Rule 13), the date on which Villanueva's conviction
became final, for purposes of the AEDPA statute of
limitations, was October 23, 2001. The AEDPA limitations
period began running on that date. And, absent any tolling,
the one-year limitations period expired a year later, on
October 23, 2002, more than thirteen years before Villanueva
initiated this action.
AEDPA statute of limitations is tolled during the time that a
properly filed application for state post-conviction or other
collateral review is pending in state court. 28 U.S.C. §
2244(d)(2). However, there is no indication in
Villanueva's habeas petition that he initiated any state
court litigation with respect to his conviction and sentence
between October 23, 2001, and October 23, 2002. In fact,
according to his petition, Villanueva did not further
challenge his conviction and sentence in any court until July