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Irive v. Filson

United States District Court, D. Nevada

August 7, 2017

RICARDO IRIVE, Petitioner,
v.
TIMOTHY FILSON, et al., Respondents.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         In this habeas corpus action, on December 23, 2016, the petitioner, Ricardo Irive, filed an amended petition for writ of habeas corpus (ECF No. 30). The respondents then filed a motion to dismiss (ECF No. 32) on February 14, 2017. The parties have fully briefed the motion to dismiss, and it is before the Court for resolution. The Court will deny the motion to dismiss.

         II. BACKGROUND

         Irive was convicted on August 27, 2010, following a jury trial in Nevada's Eighth Judicial District Court, in Clark County, of conspiracy to commit robbery and robbery with use of a deadly weapon. (See Judgment of Conviction, Exh. 13 (ECF No. 14-14).) (The exhibits referred to in this order are located in the record at ECF Nos. 14, 15 and 31.) He was sentenced, for the conspiracy to commit robbery, to 13 to 60 months in prison; for the robbery with use of a deadly weapon, he was sentenced to 72 to 180 months in prison and a consecutive 48 to 72 months in prison for the use of the deadly weapon, to run concurrently with the sentence for the conspiracy. (See id.)

         Irive appealed, and the Nevada Supreme Court affirmed on November 18, 2011. (See Order of Affirmance, Exh.t 17 (ECF No.14-18).)

         Irive then filed a petition for writ of habeas corpus in the state district court on September 6, 2012. (See Petition for Writ of Habeas Corpus (Post-Conviction), Exh. 24 (ECF No. 14-25); Supplemental Memorandum of Points and Authorities in Support of Petition for Writ of Habeas Corpus, Exh. 31 (ECF Nos. 15-6, 15-7).) The state district court held an evidentiary hearing, and then denied the petition. (See Transcript of Evidentiary Hearing, March 6, 2014, Exh. 35 (ECF No. 15-11); Transcript of Hearing, April 7, 2014, Exh. 36 (ECF No. 15-12); Findings of Fact, Conclusions of Law and Order, Exh. 39 (ECF No. 15-15).) Irive appealed from that ruling and the Nevada Supreme Court affirmed on July 21, 2015. (See Order of Affirmance, Exh. 43 (ECF No. 15-19).)

         On February 9, 2015, Irive filed a second state habeas petition. (See Second Petition for Writ of Habeas Corpus, Exh. 45 (ECF No. 15-21).) The state district court dismissed that petition, ruling it procedurally barred. (See Court Minutes, July 20, 2015, Exh. 48 (ECF No. 15-24); Findings of Fact, Conclusions of Law and Order, Exh. 49 (ECF No. 15-25).) There is no indication in the record that Irive appealed from the dismissal of his second state habeas petition.

         This Court received Irive's original federal habeas petition, initiating this action, pro se, on September 23, 2015; in the petition, Irive represents, and respondents do not dispute, that he mailed the petition for filing on September 20, 2015. (See Petition for Writ of Habeas Corpus (ECF No. 6) at 1.)

         Respondents filed a motion to dismiss Irive's original petition on December 3, 2015 (ECF No. 14). On May 4, 2016, the Court appointed counsel to represent Irive in this case, and denied that motion to dismiss, without prejudice, as moot. (See Order entered May 4, 2016 (ECF No. 22).)

         With counsel, Irive then filed his amended petition for writ of habeas corpus (ECF No. 30), now the operative petition in this case, on December 23, 2016.

         On February 14, 2017, respondents filed a motion to dismiss Irive's amended petition (ECF No. 32). Respondents asserted two arguments in their motion to dismiss: that Ground 1 of Irive's amended habeas petition is, in part, unexhausted in state court, and that Ground 2 of Irive's amended habeas petition is barred by the statute of limitations. Irive filed an opposition to the motion to dismiss on June 20, 2017 (ECF No. 35), and respondents filed a reply on June 27, 2017 (ECF No. 36). In their reply, respondents withdraw their argument that Ground 1 is partially unexhausted. (See Reply to Opposition to Motion to Dismiss (ECF No. 36) at 3.) Respondents' motion to dismiss, therefore, raises one issue: whether Ground 2 of Irive's amended habeas petition is barred by the statute of limitations.

         III. DISCUSSION

         The Antiterrorism and Effective Death Penalty Act (AEDPA), enacted in 1996, imposed a one-year statute of limitations for federal habeas petitions filed by prisoners ...


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