United States District Court, D. Nevada
a habeas corpus proceeding under 28 U.S.C. § 2254
brought by Larry Bailey, a Nevada prisoner.
reviewing Bailey's petition under Rule 4 of the Rules
Governing Section 2254 Cases, the court notes the conviction
and sentence Bailey seeks to challenge was entered in August
of 2008, with his subsequent direct appeal decided on
December 4, 2009. There is no indication Bailey sought a writ
of certiorari in the United States Supreme Court. Bailey
waited until September 18, 2015, to file petition for
post-conviction relief in the state court. Thus, it does not
appear he initiated this action within the one-year
limitation period in 28 U.S.C.§2244(d)(1). Consequently,
Bailey must show cause in writing why the petition should not
be dismissed with prejudice as time-barred.
to Herbst v. Cook, 260 F.3d 1039 (9th
Cir. 2001), the court sua sponte raises the question
of whether the petition is time-barred for failure to file
the petition within the one-year limitation period in 28
U.S.C. § 2244(d)(1). Under 28 U.S.C. §
2244(d)(1)(A), the federal one-year limitation period, unless
otherwise tolled or subject to delayed accrual, begins
running after "the date on which the judgment became
final by the conclusion of direct review or the expiration of
the time for seeking such direct review." So, in the
present case, the limitation period began running 90 days
from the date the Nevada Supreme Court decided Bailey's
direct appeal, i.e., on Thursday, March 4, 2010.
See Bowen v. Roe, 188 F.3d 1157, 1159
(9th Cir. 1999) (“[W]hen a petitioner fails
to seek a writ of certiorari from the United States Supreme
Court, the AEDPA's one-year limitations period begins to
run on the date the ninety-day period defined by Supreme
Court Rule 13 expires.”). Absent tolling or delayed
accrual, the limitation period expired one year later on
Friday, March 4, 2011.
28 U.S.C. § 2244(d)(2), the federal limitation period is
statutorily tolled during the pendency of a properly filed
application for state post-conviction relief or for other
state collateral review. However, if a state court determines
the collateral challenge was not timely filed under state
law, the collateral challenge is not “properly
filed” for purposes of 28 U.S.C. § 2244(d)(2).
Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005). In
other words, “[w]hen a postconviction petition is
untimely under state law, ‘that [is] the end of the
matter' for purposes of § 2244(d)(2).”
Id. at 414 (citation omitted). Also, once a state
post-conviction proceeding pursuant a properly filed
application has concluded, the statutory time period resumes
is informed that the one-year limitation period may be
equitably tolled. Equitable tolling is appropriate only if
the petitioner can show: (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.
Holland v. Florida, 130 S.Ct. 2549, 1085 (2010).
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.” Miranda,
292 F.3d at 1065. He 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). Accord Bryant
v. Arizona Attorney General, 499 F.3d 1056, 1061
(9th Cir. 2007).
is advised that the equitable rule in Martinez v.
Ryan, 132 S.Ct. 1309 (2012), “applies only to the
issue of cause to excuse the procedural default of an
ineffective assistance of . . . counsel claim that occurred
in a state collateral proceeding” and “has no
application to the operation or tolling of the § 2244(d)
statute of limitations” for filing federal habeas
petitions. Chavez v. Sec'y, Fla. Dep't of
Corr., 742 F.3d 940, 943 (11th Cir. 2014) (citing
Arthur v. Thomas, 739 F.3d 611, 629-631 (11th Cir.
2014)). See Manning v. Epps, 688 F.3d 177, 189 (5th
Cir. 2012) (Martinez does not extend to the statute
of limitations period under 28 U.S.C. § 2244(d)(1)(B));.
certain circumstances, the one-year limitation period may
begin running on a later date or, as mentioned, may be
statutorily tolled. See 28 U.S.C. §
2244(d)(1)(B-D) & (d)(2).
Bailey has also filed a motion for appointment of counsel.
ECF No. 3. Pursuant to 18 U.S.C. §3006A(a)(2)(B), the
district court has discretion to appoint counsel when it
determines the “interests of justice” require
representation. There is no constitutional right to appointed
counsel for a federal habeas corpus proceeding.
Pennsylvania v. Finley, 481 U.S. 551, 555(1987);
Bonin v. Vasquez, 999 F.2d 425, 428 (9th
Cir. 1993). The decision to appoint counsel is generally
discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196
(9th Cir. 1986); Bashor v. Risley, 730 F.2d 1228,
1234 (9th Cir. 1984). However, counsel must be
appointed if the complexities of the case are such that
denial of counsel would amount to a denial of due process,
and where the petitioner is a person of such limited
education as to be incapable of fairly presenting his claims.
See Chaney, 801 F.2d at1196; see also Hawkins v.
Bennett, 423 F.2d 948 (8th Cir. 1970).
initial threshold issue of timeliness is not complex. Based
on the documents already submitted, the court finds Bailey
capable of addressing that issue without assistance of
counsel. Thus, appointment of counsel is not warranted at
this point in the proceeding; and, Bailey's motion shall
be denied. Should he demonstrate that his petition is timely,
Bailey may move the court to reconsider this issue.
THEREFORE ORDERED that, within thirty (30) days of entry of
this order, petitioner shall show cause in writing why the
petition should not be dismissed with prejudice as
time-barred. If petitioner does not timely respond to this
order, the petition will be dismissed with prejudice as
time-barred without further advance notice. If petitioner
responds but fails to show -with specific, detailed and
competent evidence - that the petition is timely, the action
will be dismissed with prejudice.
FURTHER IS ORDERED that all assertions of fact made by
petitioner in response to this show-cause order must be
detailed, must be specific as to time and place, and must be
supported by competent evidence. The court will not consider
any assertions of fact that are not specific as to time and
place, that are not made pursuant to a declaration under
penalty of perjury based upon personal knowledge, and/or that
are not supported by competent evidence filed by petitioner
in the federal record. Petitioner must attach copies of all
materials upon which he bases his argument that the petition
should not be dismissed as untimely. Unsupported assertions
of fact will be disregarded.
extension of time will be granted to respond to this order
except in the most compelling of circumstances.
FURTHER ORDERED that petitioner's motion for appointment