United States District Court, D. Nevada
JAMEE DEIRDRE HUNDLEY, a.k.a. JAMES DERRICK HUNDLEY, Petitioner,
RENEE BAKER, et al., Respondents.
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.
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).
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.
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).
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.
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.
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.
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 ...