United States District Court, D. Nevada
BERTON G. TOAVS Petitioner,
ISIDRO BACA, et al., Respondents.
C. JONES United States District Judge
the court are the amended petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 (ECF No. 11),
respondents' motion to dismiss (ECF No. 17),
petitioner's opposition (ECF No. 21), and
respondents' reply (ECF No. 22). The court grants the
motion in part because this action is untimely and because
petitioner has not shown that equitable tolling is warranted.
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). A prior federal habeas corpus petition does not
toll the period of limitation. Duncan v. Walker, 533
U.S. 167, 181-82 (2001).
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).
to a guilty plea agreement, on August 14, 2001, petitioner
was convicted in state district court of two counts of
lewdness with a child under the age of 14 years and one count
of sexual assault. Ex. 7 (ECF No. 18-7). Petitioner appealed.
The Nevada Supreme Court affirmed on March 1, 2002. Ex. 11
(ECF No. 18-11). For the purposes of 28 U.S.C. §
2244(d)(1), the judgment of conviction became final, and the
one-year period started running, with the expiration of time
to petition for a writ of certiorari, on May 30, 2002.
February 25, 2003, 271 days later, petitioner filed a
post-conviction habeas corpus petition in state district
court. Ex. 12 (ECF No. 18-12). The state district court
denied the petition on March 1, 2007. Ex. 16 (ECF No. 18-16).
Petitioner appealed. The Nevada Supreme Court affirmed the
denial on March 6, 2008. Ex. 19 (ECF No. 18-19). Remittitur
issued on April 1, 2008 (ECF No. 18-20).
one-year period was tolled under 28 U.S.C. § 2244(d)(2)
while the state post-conviction habeas corpus petition was
pending. The period resumed after issuance of the remittitur.
The period expired on July 7, 2008.
the state post-conviction habeas corpus petition was pending,
petitioner filed a habeas corpus petition in this court,
Toavs v. Helling, 3:06-cv-00645-LRH-VPC. The court
dismissed the action. This earlier federal habeas corpus
petition had no effect upon the running of the one-year
period of § 2244(d)(1). First, federal habeas corpus
petitions are not eligible for tolling of the one-year
period. Walker, 533 U.S. at 181-82. Second, the