United States District Court, D. Nevada
C. JONES UNITED STATES DISTRICT JUDGE.
habeas matter under 28 U.S.C. § 2254 comes before the
court on respondents' motion to dismiss petitioner Conor
James Harris' counseled first-amended petition as
untimely (ECF No. 21). Harris opposed (ECF No. 25), and
respondents replied (ECF No. 35). As discussed below, this
petition must be dismissed as untimely.
April 1, 1997, Harris, then a seventeen year-old high school
student, was charged in connection with the murder of his
former girlfriend, also seventeen (exhibit 2). On August 14,
1997, Harris pleaded guilty pursuant to a written plea
agreement to first-degree murder with use of a deadly weapon.
Exh. 9. The state district court sentenced Harris to life in
prison without the possibility of parole and a consecutive
life in prison without the possibility of parole for the
deadly weapon enhancement. Exh. 16. Judgment of conviction
was entered on September 23, 1997. Id.
did not file a direct appeal. Almost fourteen years later, on
August 3, 2011, Harris filed a pro per motion to
withdraw guilty plea on the basis that it was not knowing and
voluntary. Exh. 27. The state district court denied the
motion. Exh. 31. Harris appealed, and the Nevada Supreme
Court appointed counsel. Exh. 37. The Nevada Supreme Court
issued an order of limited remand, remanding the matter to
district court “to hold a hearing and determine whether
the equitable doctrine of laches precludes consideration of
the motion.” Exh. 43.
state district court held a hearing, and filed its order
denying the motion to withdraw the guilty plea on April 8,
2013. Exh. 45. On April 30, 2013, the Nevada Supreme Court
ordered the parties to file supplemental briefs limited to
issues related to the district court order entered on remand.
Exh. 48. On October 16, 2013, the Nevada Supreme Court
affirmed the state district court's denial of the motion
and its determination that laches precluded consideration of
Harris' motion. Exh. 55. Remittitur issued on November
13, 2013. Exh. 56.
dispatched his federal habeas petition for filing about
October 2, 2014 (ECF No. 6). This court appointed counsel,
and counsel filed a first-amended petition on October 19,
2015 (ECF No. 14). Respondents have moved to dismiss the
petition as time-barred (ECF No. 21, pp. 4-5). They also
argue that two of the three grounds in the petition are
unexhausted. Id. at 5-7.
Legal Standards & Analysis
The Antiterrorism and Effective Death Penalty Act (AEDPA)
statute of limitations
went into effect on April 24, 1996 and 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).
the parties do not dispute that the AEDPA one-year statute of
limitations expired on October 23, 1998 (ECF No. 21, p.8; ECF
No. 25, p. 15). Harris did not file anything in state court
before that date to challenge his conviction or sentence, and
he did not file his federal petition until October 2, 2014.
This federal petition is, therefore, time-barred, unless
Harris is entitled to equitable tolling of the statute of
limitations. In his counseled response to the motion to
dismiss the petition as time-barred, Harris argues that he is
actually innocent of first-degree murder, and he also argues
in the alternative that he is entitled to statutory and
equitable tolling (ECF No. 25).
first-amended petition, Harris raises three grounds for
relief. In ground 1 he argues that his guilty plea was not
entered knowingly, intelligently, and voluntarily in
violation of his Fifth, Eighth and Fourteenth Amendment right
to due process, equal protection and to a reliable sentence
(ECF No. 14, pp. 7-14). Specifically, he contends that he is
actually innocent of first-degree murder with use of a deadly
weapon because he was incapable of forming the requisite
intent to commit first-degree murder.
convincing showing of actual innocence may enable habeas
petitioners to overcome a procedural bar to consideration of
the merits of their constitutional claims. Schlup v.
Delo, 513 U.S. 298 (1995); House v. Bell, 547
U.S. 518 (2006). In McQuiggin v. Perkins, the United
States Supreme Court held that “actual innocence, if
proved, serves as a gateway through which a petitioner may
pass whether the impediment is a procedural bar, as it was in
Schlup and House, or, as in this case,
expiration of the statute of limitations.” 133 S.Ct.
1924, 1928 (2013). The Court emphasized that “tenable
actual-innocence gateway pleas are rare: ‘[A]
petitioner does not meet the threshold requirement unless he
persuades the district court that, in light of the new
evidence, no juror, acting reasonably, would have voted to
find him guilty beyond a reasonable doubt.'”
Id.; quoting Schlup, 513 U.S., at 329;
see House, 547 U.S. at 538 (emphasizing that the
Schlup standard is “demanding” and
seldom met). ...