United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
habeas matter under 28 U.S.C. § 2254 comes before the
Court on respondents' motion to dismiss petitioner Marvin
Mosby's counseled, first-amended petition as untimely.
(ECF No. 28.) Mosby opposed (ECF No. 33), and respondents
replied (ECF No. 34). As discussed below, respondent's
motion will be granted.
26, 2011, a jury convicted Mosby of count 1: larceny from the
person, and count 2: grand larceny. (Exh. 50.) Noting that the
state had introduced evidence of 12 prior felonies, including
two convictions for ex-felon in possession of a firearm, the
state district court adjudicated him a large habitual
criminal and sentenced him to life without the possibility of
parole. (Exh. 52.) Mosby filed a motion for reconsideration.
(Exh. 53.) The state district court conducted a hearing and
denied the motion. (Exhs. 55, 56.) Judgment of conviction was
filed on November 15, 2011. (Exh. 3.)
November 15, 2012, the Nevada Supreme Court affirmed the
conviction as to count 1 and reversed and remanded as to
count 2. (Exh. 5.) Remittitur issued on December 12, 2012.
(Exh. 5a.) The amended judgment of conviction was filed on
January 30, 2013; count 2 was dismissed and the sentence on
count 1 remained the same. (Exh. 6.)
April 3, 2014, Mosby filed what he called a supplemental
petition for writ of habeas corpus. (Exh. 19.) He styled it
as a supplement, but as no state postconviction petition had
been filed, the state district court dismissed it as
time-barred. (Exh. 63.) Petitioner represented in a motion
for leave to file the supplement that he had in fact
submitted a state postconviction petition on September 3,
2013. (See Exh. 25.) Ultimately, the Nevada Supreme
Court reversed and remanded to the state district court for
an evidentiary hearing as to whether a timely state
postconviction petition had been filed. (Exh. 25.) The state
district court conducted an evidentiary hearing, denied the
petition, and the Nevada Court of Appeals affirmed. (Exhs.
26, 27, 33.) Remittitur issued on May 18, 2016. (Exh. 64.)
Mosby dispatched his federal habeas petition for mailing on
May 12, 2014. (ECF No. 1.) This Court appointed counsel, and
petitioner filed a counseled motion for stay and abeyance.
(ECF Nos. 14, 15.) This Court granted the motion. (ECF No.
17.) On July 26, 2016, this Court granted Mosby's motion
to reopen the case, and he filed a counseled, first-amended
petition on December 15, 2016. (ECF No. 24.) Respondents have
moved to dismiss the petition as time-barred. (ECF No. 28.)
LEGAL STANDARDS & ANALYSIS
Antiterrorism and Effective Death Penalty Act (AEDPA) 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). The time limitation can also run from
the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence. 28 U.S.C. § 2244(d)(1)(D).
Further, a properly filed petition for state postconviction
relief can toll the period of limitations. 28 U.S.C. §
the state district court filed Mosby's amended judgment
of conviction on January 30, 2013. (Exh. 6.) Mosby did not
file an appeal, and therefore, his conviction became final
thirty days after the judgment of conviction was filed-March
1, 2013. Gonzalez v. Thaler, 565 U.S. 134, 150
(2012). Accordingly, the AEDPA one-year statute of
limitations began to run from that date. The parties do not
dispute that the limitations period had already expired when
Mosby filed his state postconviction petition April 3, 2014,
and had already expired when he filed his original federal
petition in this action on May 12, 2014. However, Mosby
insists he is entitled to equitable tolling.
petitioner may be entitled to equitable tolling 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.” Castro, 292 F.3d at 1065.
Petitioner accordingly must demonstrate a causal relationship
between the extraordinary circumstance and the lateness of
petitioner's filing. E.g., Spitsyn v. Moore, 345
F.3d 796, 799 (9th Cir. 2003). Moreover, 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
contends that he is entitled to equitable tolling in this
federal habeas because he had previously attempted to
initiate a federal habeas action in this Court. (ECF No. 33.)
On September 3, 2013, the Court received an application to
proceed in forma pauperis and a habeas petition.
(See Mosby v. Baker, case no. 2:13-cv-01609-APG-VCF
(“Mosby I” (ECF No. 1).) On October 15,
2013, the Court issued an order stating that the IFP
application was incomplete and that the petition was on a
state-court form, not on the form required by this Court, and
the petition did not substantially conform to the form
required by this Court. (Mosby I (ECF No. 2).) The
Court denied the IFP application without prejudice, directed
the Clerk of Court to send Mosby two copies each of the
application form to proceed in forma pauperis for
incarcerated persons and a noncapital Section 2254 habeas
petition form, one copy of the instructions for each form,
and a copy of the papers he submitted. (Id.) The
Court ordered Mosby to submit an amended IFP application and
an amended petition within thirty days. (Id.) The
Court expressly advised that if Mosby did not file an amended
petition the action would be dismissed. (Id.) Mosby
sought an extension of time to comply with the Court's
order, which this Court granted on November 7, 2013.
(Mosby I (ECF Nos. 3, 5).) Mosby filed an inmate
trust account statement in support of his IFP application.
(Mosby I (ECF No. 6).) However, he failed to file an
amended petition, in contravention to the Court's orders
dated October 15, 2013, and November 7, 2013. (Mosby
I (see ECF Nos. 6, 7).) Accordingly, this Court
dismissed that habeas action without prejudice on February 6,
2014, and judgment was entered. (2:13-cv-01609-APG-VCF (ECF
Nos. 7, 8).)
now argues that he is entitled to equitable tolling of this
current federal habeas petition back to the date that he had
attempted to initiate the first federal habeas action. This
argument is unavailing. Mosby has not demonstrated that the
Mosby I was improperly dismissed; Mosby failed to
comply with the Court rules and failed to comply with two
separate Court orders to file an amended petition, and the
Court dismissed the first habeas action on those bases.
See James v. Giles, 221 F.3d 1074, 1077
(9th Cir. 2000) (pro se habeas litigants
are entitled to a “statement of the grounds for
dismissal and an opportunity to amend the complaint to
overcome the deficiency unless it clearly appears from the
complaint that the deficiency cannot be overcome”). The
Court further notes that in Mosby I, Mosby's
motion for extension of time indicated that he understood
that he needed to amend his IFP application and petition.
(Mosby I (ECF Nos. 3).) Mosby simply has not shown
that extraordinary circumstances prevented him from timely
filing this current action. Accordingly, the petition will be
dismissed with prejudice as time-barred.