United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE.
has paid the filing fee. The court has reviewed the petition
for a writ of habeas corpus under Rule 4 of the Rules
Governing Section 2254 Cases in the United States District
Courts. Petitioner needs to show cause why the court should
not dismiss the action as untimely.
has limited the time in which a person can petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254:
1-year period of limitation shall apply to an application for
a writ of habeas corpus by a person in custody pursuant to
the judgment of a State court. The limitation period shall
run from the latest of-
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) 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). If the judgment of conviction is
not appealed, then it becomes final thirty days after entry,
when the time to appeal to the Nevada Supreme Court has
expired. See Gonzalez v. Thaler, 132 S.Ct.
641, 653-54 (2012). See also Nev. R. App. P. 4(b),
26(a). Any time spent pursuing a properly filed application
for state post-conviction review or other collateral review
does not count toward this one-year limitation period. 28
U.S.C. § 2244(d)(2). The period of limitation resumes
when the post-conviction judgment becomes final upon issuance
of the remittitur. Jefferson v. Budge, 419 F.3d
1013, 1015 n.2 (9th Cir. 2005). An untimely state
post-conviction petition is not “properly filed”
and does not toll the period of limitation. Pace v.
DiGuglielmo, 544 U.S. 408, 417 (2005).
2244(d) is subject to equitable tolling. Holland v.
Florida, 560 U.S. 631, 645 (2010). “[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.” Id. at 649 (quoting
Pace, 544 U.S. at 418).
petitioner effectively files a federal petition when he
delivers it to prison officials to be forwarded to the clerk
of the court. Rule 3(d), Rules Governing Section 2254 Cases
in the United States District Courts.
court can raise the issue of timeliness on its own motion.
Day v. McDonough, 547 U.S. 198, 209 (2006);
Herbst v. Cook, 260 F.3d 1039, 1043 (9th Cir. 2001).
state district court, petitioner pleaded guilty to burglary
while in possession of a deadly weapon, robbery with the use
of a deadly weapon, and burglary. The state district court
entered its judgment on January 5, 2015. State v.
Cedeno, No. C-14-301814-1. Petitioner did not appeal. The
judgment of conviction became final at the end of February 4,
2015, when the time to appeal expired. Petitioner filed a
post-conviction habeas corpus petition in the state district
court on March 10, 2016. The state district court denied the
petition because petitioner filed it more than a year /// ///
after entry of the judgment of conviction. See Nev.
Rev. Stat. § 34.726(1). Petitioner appealed, and the
Nevada Court of Appeals affirmed. Cedeno v. State,
then commenced this action. He does not state when he
delivered the petition to prison officials for mailing to
this court. He dated the petition January 4, 2016, but he
must have intended the year to be 2017, because he refers to
matters that occurred after January 4, 2016. He signed and
dated the declaration under penalty of perjury on January 6,
2017. The ...