Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Toavs v. Baca

United States District Court, D. Nevada

February 16, 2017

BERTON G. TOAVS Petitioner,
v.
ISIDRO BACA, et al., Respondents.

          ORDER

          ROBERT C. JONES United States District Judge

         Before 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.

         Congress 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).

         Section 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).

         Pursuant 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.

         On 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).

         The 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.

         While 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.