United States District Court, D. Nevada
JOHN C. AUSTERMAN, Petitioner,
ISIDRO BACA, et al., Respondents.
C. JONES, UNITED STATESJOISTRICT JUDGE
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).
Procedural History and Background
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).
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.
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.
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.
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).
Instant Petition is Time-barred
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).
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).
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
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
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. ...