United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE.
the court had noted two defects in the initial petition (ECF
No. 7). First, petitioner had named the wrong respondent. He
has corrected that problem. Second, petitioner was
challenging his custody pursuant to two judgments of
conviction of two different state district courts. The court
told petitioner that he could challenge only one judgment of
conviction in this case. Petitioner would need to start
another, separate case with another, separate petition that
challenged the other judgment of conviction. ECF No. 6.
Instead of following those instructions, petitioner filed
two amended petitions in this case. ECF No. 8 and
8-1. Each amended petition challenges one judgment of
conviction. The court will treat the amended petition
challenging the judgment of conviction of the Eighth Judicial
District Court, currently at ECF No. 8, as the operative
petition. The court will not consider the amended petition
challenging the judgment of conviction of the Fifth Judicial
District Court, currently at ECF No. 8-1.
if petitioner wants to challenge the judgment of conviction
of the Fifth Judicial District Court, he must start a new
case, with a new petition and a new application to proceed
in forma pauperis or a new payment of the $5 filing
court has reviewed the amended petition. Petitioner will need
to show cause why the court should not dismiss the case as
A 1-year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursuant
to the judgment of a State court. The limitation period shall
run 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.
28 U.S.C. § 2244(d)(1). If the judgment is appealed,
then it becomes final when the Supreme Court of the United
States denies a petition for a writ of certiorari or when the
time to petition for a writ of certiorari expires.
Jimenez v. Quarterman, 555 U.S. 113, 119-20 (2009).
See also Sup. Ct. R. 13(1). 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). The
period of limitation resumes when the post-conviction
judgment becomes final upon issuance of the remittitur.
Jefferson v. Budge, 419 F.3d 1013, 1015 n.2 (9th
Cir. 2005). 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). A prior federal habeas corpus petition does not toll
the period of limitation. Duncan v. Walker, 533 U.S.
167, 181-82 (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).
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.
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).
jury trial, petitioner was convicted of two counts of
aggravated stalking. The state district court entered its
judgment of conviction on April 4, 2014. State v.
Edwards, No. C-12-282585-1. Petitioner appealed, and the
Nevada Court of Appeals affirmed on February 4, 2015.
Edwards v. State, No. 65529. Petitioner did not petition