United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE.
court directed petitioner to show cause why the court should
not dismiss the action as untimely (ECF No. 7). Petitioner
has filed a response (ECF No. 12). The court is not
persuaded, and the court dismisses this action.
court has noted earlier, petitioner was convicted of
second-degree murder with the use of a deadly weapon,
pursuant to a guilty plea agreement. At the time he committed
the murder, Nev. Rev. Stat. § 193.165 required the use
of a deadly weapon be punished by a sentence equal and
consecutive to the sentence for the primary offense. On July
1, 2007, § 193.165 was amended. The use of a deadly
weapon now is punished by a consecutive sentence with a
maximum term no greater than 20 years and a minimum term no
less than 1 year, but this consecutive sentence cannot exceed
the sentence for the primary offense. The district court has
certain factors it must consider in determining the
petitioner's case, at the time of the guilty plea
agreement an open question was whether to apply the old
version of § 193.165 or the new version of §
193.165. In State v. District Court (Pullin), 188
P.3d 1079 (Nev. 2008), the Nevada Supreme Court answered the
question. Like petitioner, Pullin committed murder with the
use of a deadly weapon when the old version of § 193.165
was in effect. Also like petitioner, Pullin pleaded guilty to
the charge, the only difference being that the charge was
first-degree murder in Pullin's case. By the time of
sentencing, the new version of § 193.165 was in effect.
At the sentencing hearing, Pullin and the prosecution argued
over which version of § 193.165 to use. The state
district court used the new version of § 193.165 to
impose a consecutive sentence of 8 to 20 years for the use of
a deadly weapon. Before entry of the judgment of conviction,
the prosecution petitioned the Nevada Supreme Court for a
writ of mandamus. Id. at 1080. The Nevada Supreme
Court determined that the legislature did not intend for the
amendments of § 193.165 to apply retroactively.
Id. at 1080-84. Consequently, the state district
court erroneously sentenced Pullin under the new version of
§ 193.165. The Nevada Supreme Court granted the petition
for a writ of mandamus, and the state district court needed
to hold a new sentencing hearing that imposed a deadly-weapon
sentence under the old version of § 193.165.
Id. at 1084.
answered the question about what version of § 193.165 to
use in petitioner's case. Petitioner thus received a
sentence of 25 years imprisonment with minimum parole
eligibility after 10 years for second-degree murder, plus an
equal and consecutive sentence for the use of a deadly
does not dispute the dates the court used in its order
directing him to show cause. Petitioner does argue that under
28 U.S.C. § 2244(d)(1)(D) the one-year period of
limitation should not have started until October 2012. In
that month, he learned of two other cases in which the state
district court erroneously applied the new version of §
193.165 to the uses of deadly weapons that occurred before
the amendments became effective. The court is not persuaded.
support his argument, petitioner has presented minutes of the
Eighth Judicial District Court for Jorge Witrago, Case No.
07C234324, and Rafael Castillo-Sanchez, Case No. 05C217791.
Petition, Exhibits A and B (ECF No. 8). Petitioner argues
that both defendants committed deadly-weapon crimes before
the amendments of § 193.165 went into effect. Witrago
was convicted of second-degree murder. The state district
court sentenced Witrago to life imprisonment with eligibility
for parole starting after 10 years for the primary offense,
and a consecutive sentence of 8 to 20 years for the use of a
deadly weapon. Castillo-Sanchez was convicted of first-degree
murder with the use of a deadly weapon and assault with a
deadly weapon. The state district court sentenced
Castillo-Sanchez to life imprisonment without the possibility
of parole for first-degree murder and a consecutive term of 8
to 20 years for the use of a deadly weapon. The state
district court also imposed a consecutive sentence for
assault with a deadly weapon.
the court is not convinced that what petitioner learned in
October 2012 is the factual predicate for a claim. The court
does not know the full context of these cases, but the court
will assume for the purposes of this order that in each case
the state district court used the new version of §
193.165 in complete error. However, these errors favored the
defendants, and they certainly would not have appealed to
correct the error. At best, petitioner has demonstrated that
the prosecution in each case failed to petition the Nevada
Supreme Court for a writ of mandamus, as happened in
Pullin. The court does not see how the
prosecution's failure to try to correct illegal sentences
in those two cases raises a claim that petitioner's legal
sentence is unconstitutional.
even if the court were to credit petitioner's argument
under § 2254(d)(1)(D), this action still would be
untimely. The court will assume that petitioner learned about
Witrago's and Castillo-Sanchez's sentences on October
1, 2012. Petitioner filed a motion for sentence modification
on October 18, 2012, and he filed a motion to correct an
illegal sentence on January 11, 2013. The times spent on
these motions overlapped, and the illegal-sentence motion
concluded with the issuance of the remittitur on October 17,
2013. A motion for modification of a sentence or for
correction of an illegal sentence under Nev. Rev. Stat.
§ 176.555 does not have a time constraint, and so they
are eligible for tolling under 28 U.S.C. § 2244(d)(2).
Petitioner filed a post-conviction habeas corpus petition on
April 4, 2014. The Nevada Supreme Court determined that the
petition was untimely under Nev. Rev. Stat. § 34.726.
Remittitur issued on January 6, 2015. The time spent on this
petition did not toll the federal one-year period because an
untimely state petition is not properly filed within the
meaning of § 2244(d)(2). Pace v. DiGuglielmo,
544 U.S. 408, 417 (2005). Between the conclusion of the
illegal-sentence motion on October 17, 2013, and the mailing
of the federal habeas corpus petition to this court on
January 16, 2015, 456 days passed. A total of 473 non-tolled
days passed from the time that petitioner learned about
Witrago's and Castillo-Sanchez's sentences and the
effective commencement of this action, and that time alone
exceeds the one-year period of § 2244(d).
court finds that equitable tolling is not warranted.
“[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.” Holland v. Florida,
560 U.S. 631, 649 (2010) (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)). Petitioner knew
he had a problem with timeliness when he filed his state
habeas corpus petition, and he could have filed a protective
federal petition. He did not. Neither extraordinary
circumstances nor diligence is apparent.
jurists would not find the court's conclusions to be
debatable or wrong, and the court will not issue a
certificate of appealability.
THEREFORE ORDERED that this action is DISMISSED with
prejudice because it is untimely. The clerk of the court
shall enter judgment accordingly and close this action.
FURTHER ORDERED that a certificate of ...