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Austerman v. Baca

United States District Court, D. Nevada

February 16, 2017

JOHN C. AUSTERMAN, Petitioner,
v.
ISIDRO BACA, et al., Respondents.

          ORDER

          ROBERT C. JONES, UNITED STATESJOISTRICT JUDGE

         Petitioner John C. Austerman's pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 is before the court on respondents' motion to dismiss (ECF No. 10). Austerman opposed, and respondents replied (ECF Nos. 22, 23). Austerman then filed what he styled as an “errata, ” which respondents moved to strike (ECF Nos. 24, 25).

         I. Procedural History and Background

         On December 21, 2009, a jury convicted Austerman of burglary in Case No. CR09-1644; he was adjudicated a habitual criminal and sentenced to life in prison with the possibility of parole after ten years (exhibit 36).[1]

         On June 30, 2010, Austerman was convicted, pursuant to a guilty plea, of two counts of burglary and one count of possession of a stolen motor vehicle in Case No. CR10-0243. Exh. 77. The state district court again adjudicated him a habitual criminal and sentenced him to three concurrent terms of life with the possibility of parole after ten years, concurrent to Case No. CR09-1644. Id.

         The Nevada Supreme Court reversed Austerman's conviction in Case No. CR09-1644 and remanded. Exh. 84. The district attorney then moved to dismiss the charges. Exh. 93.

         Austerman did not file an appeal in Case No. CR10-0243. Austerman filed a state postconviction petition for a writ of habeas corpus on March 17, 2011. Exh. 98. Counsel was appointed, and a supplemental petition was filed. Exhs. 113, 108. Ultimately, on July 23, 2014, the Nevada Supreme Court affirmed the denial of the petition, and remittitur issued on August 21, 2014. Exhs. 141, 142.

         Austerman does not indicate what date he dispatched his federal habeas petition for filing, but he signed the petition on May 25, 2015 (ECF No. 4). Respondents now move to dismiss the petition (ECF No. 10).

         II. Instant Petition is Time-barred

         The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a one-year statute of limitations on the filing of federal habeas corpus petitions. 28 U.S.C. § 2244(d). The one-year time limitation can run from the date on which a petitioner's judgment became final by conclusion of direct review, or the expiration of the time for seeking direct review. 28 U.S.C. § 2244(d)(1)(A). Further, a properly filed petition for state postconviction relief can toll the period of limitations. 28 U.S.C. § 2244(d)(2).

         A petitioner may be entitled to equitable tolling of the limitations period if he can show “‘(1) that he has been pursuing his right diligently, and that (2) some extraordinary circumstance stood in his way' and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2009) (quoting prior authority). Equitable tolling is “unavailable in most cases, ” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) and “the threshold necessary to trigger equitable tolling is very high, lest the exceptions swallow the rule, ” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). The petitioner ultimately has the burden of proof on this “extraordinary exclusion.” 292 F.3d at 1065. He accordingly must demonstrate a causal relationship between the extraordinary circumstance and the lateness of his filing. E.g., Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003).

         Ignorance of the one-year statute of limitations does not constitute an extraordinary circumstance that prevents a prisoner from making a timely filing. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“a pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling”).

         Here, the time period for seeking direct review expired thirty days after Austerman's June 30, 2010 judgment of conviction. Thus, from and including July 31, 2010, to and including March 17, 2011 - the date Austerman filed his state postconviction petition --230 days of the AEDPA limitation period passed.

         Remittitur issued on the Nevada Supreme Court's affirmance of the denial of Austerman's state postconviction petition on August 21, 2014. Exh. 142. From August 22, 2014 until the May 25, 2015, the date that Austerman is deemed to have mailed his federal habeas petition, 277 days passed. Thus, a total of 507 days of untolled time passed when Austerman mailed his federal habeas petition. ...


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