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Gaines v. Neven

United States District Court, D. Nevada

October 25, 2017

CORNELIUS A. GAINES, III, Petitioner,
v.
D.W. NEVEN, et al., Respondents.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

         This 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.[1]

         I. BACKGROUND

         Petitioner 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, 2014).[2]

         The original judgment of conviction was entered on November 18, 2011, in No. 07C233567 in the state district court.

         The 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.

         On June 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 order.

         On 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.

         No 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 federal petition.

         No 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.

         While 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.

         II. DISCUSSION

         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." 28 U.S.C. § 2244(d)(1)(A)

         In the 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 ...


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