United States District Court, D. Nevada
CORNELIUS A. GAINES, III, Petitioner,
D.W. NEVEN, et al., Respondents.
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE
habeas matter comes before the Court on petitioner's
application (ECF No. 5) to proceed in forma pauperis
and for initial review under Rule 4 of the Rules Governing
Section 2254 Cases. Petitioner has paid the filing fee, and
the Court therefore will deny the pauper application as moot
and proceed to initial review.
Cornelius Gaines challenges his Nevada state judgment of
conviction, pursuant to a jury verdict, of a multitude of
offenses, including sexual assault with the use of a deadly
weapon, arising from the commission of three separate
incidents of sexual assault and robbery. See Gaines v.
State, 2014 WL 2466316, No. 59892 (Nev., May 30,
original judgment of conviction was entered on November 18,
2011, in No. 07C233567 in the state district court.
Supreme Court of Nevada affirmed the conviction on direct
appeal on May 30, 2014, in No. 59892 in that court. The time
period for filing a petition for a writ of
certiorari in the United States Supreme Court
expired on August 28, 2014.
30, 2015, petitioner filed a state post-conviction petition
in the state district court. The district court held that the
petition was untimely in a bench ruling on October 22, 2015,
and thereafter via November 30, 2015, written findings,
conclusions, and order. Petitioner appealed the untimeliness
dismissal on November 30, 2015, prior to the December 2,
2015, notice of entry of the findings, conclusions, and
appeal, the Supreme Court of Nevada affirmed on the basis
that the petition was untimely. The order of affirmance was
issued in No. 69321 in that court on January 19, 2017; and
the remittitur issued on February 14, 2017.
other timely petitions, motions, or other proceedings seeking
collateral review of the conviction (as distinguished from
motions seeking other procedural relief) were pending in the
state courts prior to the constructive filing date of the
amended or corrected judgments of conviction have been filed
in the state district court at any time prior to the filing
of the federal petition.
the federal petition is dated January 29, 2017, copies of
mailing indicia attached with a cover letter dated March 2,
2017, reflected that: (a) the petition initially was mailed
on February 18, 2017, addressed incorrectly to “Mr.
Bruce R. Thompson;” and (b) the petition was remailed
on or about March 2, 2017. The petition was received and
filed by the Clerk of Court on March 6, 2017.
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." 28 U.S.C. § 2244(d)(1)(A)
present case, absent a basis for tolling or delayed accrual,
the federal limitation period began running after the August
28, 2014, expiration of the time to file a
certiorari petition. The federal limitation period
therefore would expire one year later on August 28, 2015,
absent such tolling or delayed accrual. Petitioner's
untimely state petition did not statutorily toll ...