United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
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
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
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.
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.
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.
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.
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.
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.
current record, the limitation period as to the conviction in
No. 158098, to the extent challenged herein,  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.
therefore must show cause why the petition should not be
dismissed with prejudice as time-barred under § 2244(d).
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 ...