Hundley v. Baker

          ORDER

         This case is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by Nevada prisoner Jamee Dierdre Hundley, also known as James Derrick Hundley. Hundley filed her petition for writ of habeas corpus (ECF No. 2) on November 8, 2016.

         In an order entered on November 16, 2017 (ECF No. 8), the court screened Hundley's petition, pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. The court found that Hundley's habeas petition may be defective, in that it was apparently filed long after the expiration of the applicable statute of limitations. The court, therefore, ordered Hundley to show cause why the court should not dismiss this action. See Order entered November 16, 2017 (ECF No. 8).

         Hundley's habeas petition challenges convictions and sentences for three counts of sexual assault and one count of child abuse with substantial bodily harm. See Petition for Writ of Habeas Corpus (ECF No. 2), p. 2. According to the petition, the judgment of conviction was entered on August 30, 1996, in Nevada's Second Judicial District Court. See id. at 1-2. According to Hundley's petition, Hundley appealed from the conviction, and the Nevada Supreme Court affirmed on April 21, 1997. See id. at 1. Hundley then filed a petition for writ of habeas corpus in state court on November 20, 2012, and appealed from the denial of that petition, and the Nevada Supreme Court ruled on the appeal on March 19, 2013. See id.

         The 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) 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).

         Hundley's direct appeal concluded in April 1997, when the Nevada Supreme Court affirmed the judgment of conviction. See Petition for Writ of Habeas Corpus, p. 1. The one-year AEDPA limitations period began to run ninety days later, in July 1997, when the period to file a petition for a writ of certiorari expired (see Supreme Court Rule 13). Absent any tolling, the one-year limitations period expired a year later, in July 1998.

         The 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 Hundley's habeas petition that Hundley initiated any state court litigation during the more than 15 years between July, 1997, and November, 2012, when the state habeas action was filed.

         On December 30, 2017, Hundley filed a document in which she attempts to show cause regarding the apparent statute of limitations bar (ECF No. 11). In that filing, Hundley recognizes that her petition in this case was filed long after the expiration of the applicable limitations period. but she argues that she can overcome the statute of limitations bar by showing that she is actually innocent.

         A federal habeas petitioner may overcome the expiration of the AEDPA statute of limitations by making a showing of actual innocence. McQuiggin v. Perkins, 133 S.Ct. 1924, 1928-35 (2013); see also Lee v. Lampert, 653 F.3d 929 (9th Cir. 2011). When an otherwise time-barred habeas petitioner “presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of non-harmless constitutional error, ” the court may consider the petition on the merits. See Schlup v. Delo, 513 U.S. 298, 316 (1995). Under Schlup, a petitioner may overcome a procedural default or expiration of the statute of limitations by (1) producing “new reliable evidence [of innocence] -- whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence -- that was not presented at trial, ” Schlup, 513 U.S. at 324, and (2) showing “that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Id. at 327. The Schlup standard permits review only in the “extraordinary” case. Id. at 324. The Supreme Court has cautioned that “tenable actual-innocence gateway pleas are rare.” McQuiggin, 133 S.Ct. at 1928. “[A] petitioner does not meet ...