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Smith v. Baker

United States District Court, D. Nevada

October 6, 2017

SHAYLON SMITH, Petitioner,
v.
WARDEN BAKER, et al., Respondents.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE

         This habeas matter comes before the Court on petitioner's application to proceed in forma pauperis (ECF No. 1) and for initial review under Rule 4 of the Rules Governing Section 2254 Cases (the “Habeas Rules”). Petitioner has paid the filing fee, and the Court therefore will deny the pauper application as moot and proceed to initial review.

         I. BACKGROUND

         Petitioner Shaylon Smith refers in his entirely handwritten petition to his conviction in two Nevada state criminal proceedings in Nos. 158098 and 159872 in the same state district court.[1]

         The original judgment of conviction in No. 158098 was entered on February 8, 2000; and the last order that possibly might be construed as an amended judgment of conviction was entered on or about April 22, 2002. Petitioner was dishonorably discharged from his remaining probation a short time later on or about October 11, 2002.

         Petitioner did not file a direct appeal from any original or amended judgment in No. 158098, and he did not file a state post-conviction petition or other proceeding seeking collateral review in that matter at any time.

         The original judgment of conviction in No. 159872 was entered on March 16, 2000, and an amended judgment of conviction was entered on May 9, 2000. Petitioner did not file a direct appeal from either judgment, and the time to file an appeal from the amended judgment expired on or about June 8, 2000.

         Sixteen years later, on June 13, 2016, petitioner filed a motion to modify or correct an illegal sentence in No. 159872. The state district court's denial of relief was affirmed on appeal, in No. 71009 in the state appellate courts. The remittitur issued on May 17, 2017.

         Petitioner dispatched the current petition between May 12, 2017, and September 20, 2017, after a prior action was dismissed without prejudice because it was submitted without either a pauper application or payment of the filing fee. Petitioner constructively filed his papers in the prior action, No. 3:17-cv-00288-MMD-VPC, on or about May 2, 2017.[2]

         II. DISCUSSION

         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." On the current record, the limitation period as to the conviction in No. 159872, which is the main if not sole conviction challenged herein, began running after the time expired to appeal the amended judgment of conviction, i.e., after June 8, 2000. Absent a basis for tolling or delayed accrual, the federal limitation period therefore expired as to No. 159872 on June 8, 2001. While the June 13, 2016, state court motion potentially would statutorily toll the running of an otherwise unexpired limitation period through May 17, 2017, under § 2244(d)(2), the prospect of such tolling would be of no avail to petitioner if the expiration period already had expired prior to that point. On the current record, the federal limitation period expired fifteen years earlier on June 8, 2001, such that the federal petition is untimely, as a challenge to the conviction in No. 159872, even if the petition is deemed to have been constructively filed on May 2, 2017.

         On the current record, the limitation period as to the conviction in No. 158098, to the extent challenged herein, [3] began running, at the very latest, thirty days after the April 22, 2002, order therein, i.e., after May 22, 2002. Absent a basis for tolling or delayed accrual, the federal limitation period therefore expired as to No. 158098 on May 22, 2003. The federal petition in this matter was not mailed for filing until nearly fourteen years later, even if the petition is deemed to have been constructively filed on May 2, 2017.

         Petitioner therefore must show cause why the petition should not be dismissed with prejudice as time-barred under § 2244(d).

         In this regard, petitioner is informed that the one-year limitation period may be equitably tolled. Equitable tolling is appropriate only if the petitioner can show that: (1) he has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way and prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 (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.” 292 F.3d at 1065. He accordingly must demonstrate a causal relationship ...


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