United States District Court, D. Nevada
MARKELL S. JONES, Petitioner,
RENEE BAKER, et al., Respondents.
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
Court has reviewed the petition for a writ of habeas corpus
before the Court pursuant to 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 this action as untimely.
petition for writ of habeas corpus is subject to a one-year
statute of limitations. 28 U.S.C. § 2244(d)(1). Such
limitation period runs 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.
Id. If the judgment 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, 565 U.S. 134, 149-150 (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).
However, 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). The 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. The 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).
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). Actual innocence can excuse
operation of the statute of limitations. McQuiggin v.
Perkins, 133 S. Ct. 1924, 1928 (2013). “‘[A]
petitioner does not meet the threshold requirement unless he
persuades the district court that, in light of the new
evidence, no juror, acting reasonably, would have voted to
find him guilty beyond a reasonable doubt.’”
Id. (quoting Schlup v. Delo, 515 U.S. 298,
329 (1995)). “‘[A]ctual innocence’ means
factual innocence, not mere legal insufficiency.”
Bousley v. United States, 523 U.S. 614, 623 (1998).
“In cases where the Government has forgone more serious
charges in the course of plea bargaining, petitioner’s
showing of actual innocence must also extend to those
charges.” Id. at 624.
in the state district court, petitioner agreed to plead
guilty to Count 4 (conspiracy to commit robbery) and Count 5
(robbery with the use of a deadly weapon). The sentence for
Count 4 was a minimum term of 28 months and a maximum term of
72 months. The sentence for Count 5 was a minimum term of 72
months and a maximum term of 180 months for the robbery, plus
a consecutive minimum term of 72 months and maximum term of
180 months for the use of a deadly weapon. The state district
court entered the judgment of conviction on June 4, 2007.
(ECF No. 1-1 at 20.) Petitioner did not appeal. On July 5,
2007, the judgment of conviction became final, because the
deadline to appeal otherwise would have occurred on
November 23, 2015, petitioner filed a post-conviction habeas
corpus petition in the state district court. The state
district court determined that the petition was untimely
under NRS § 34.726(1) and barred by laches under NRS
§ 34.800. (ECF No. 1-1 at 10-15.) Petitioner appealed.
On April 19, 2017, the Nevada Court of Appeals affirmed the
decision. (ECF No. 1-1 at 17-18.)
mailed his federal habeas corpus petition to this Court on
June 6, 2017. He alleges that his sentence for the primary
offense in Count 5 (plus the concurrent sentence for Count 4)
has expired. He claims that he is being held illegally
because the deadly-weapon statute does not create a separate
offense with a separate punishment. See NRS §
facts alleged in the petition present a question when the
one-year period of § 2244(d)(1) started. Petitioner
alleges that he was paroled from the primary offense in Count
5 on August 14, 2012, and that the sentence for the primary
offense in Count 5 expired on June 30, 2014. (ECF No. 1-1 at
3.) Petitioner also alleges that he did not present this
ground on direct appeal from the judgment of conviction
because it was not available at the time. (ECF No. 1-1 at 4.)
From these allegations, the Court could construe an argument
by petitioner that under 28 U.S.C. § 2244(d)(1)(D) the
one-year period should have started on July 1, 2014, when
petitioner started serving his consecutive sentence in Count
5 for the use of a deadly weapon. The Court would not be
persuaded by such an argument. Petitioner did not learn that
he would be serving that consecutive sentence only as late as
when he started to serve it. Petitioner learned or could have
learned that he would be serving that consecutive sentence no
later than when the state district court entered the judgment
on conviction on June 4, 2007. Consequently, the one-year
period started when petitioner’s judgment of conviction
became final, on July 5, 2007. The one-year period of 28
U.S.C. § 2244(d)(1)(A) expired on July 7, 2008, because
the deadline otherwise would have occurred on a Saturday.
state post-conviction habeas corpus petition, filed on
November 23, 2015, did not toll the one-year period under
§ 2244(d)(2) for two reasons. First, the one-year period
already had expired. A state post-conviction petition does
not toll § 2244(d)(1)’s period of limitations when
the period has already expired. Ferguson v.
Palmateer,321 F.3d 820, 823 (9th Cir. 2003). Second,
the state courts determined that the petition was untimely.
An untimely state petition is not ...