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White v. Gentry

United States District Court, D. Nevada

November 6, 2017

SHAWN LEWIS WHITE, Petitioner,
v.
JO GENTRY, et al., Respondents.

          ORDER

          JAMES C. MAHAN, UNITED STATES DISTRICT JUDGE.

         This habeas matter under 28 U.S.C. § 2254 comes before the court on petitioner's application (ECF No. 1) to proceed in forma pauperis and for initial review. The court finds that petitioner is unable to pay the filing fee within a reasonable time. The pauper application therefore will be granted, and the court proceeds to initial review. Following such review, petitioner must show cause why the petition should not be dismissed as untimely under 28 U.S.C. § 2244(d).

         Background

         Petitioner challenges two Nevada state judgments of conviction, pursuant to guilty pleas, of, in the aggregate, five counts of conspiracy to commit robbery, five counts of robbery with the use of a deadly weapon, and one count of murder.[1]

         Judgment in both cases was entered on the same day, November 30, 2005, in Nos. C208788 and C210008 in the state district court. There have been no intervening amended or corrected judgments of conviction filed in the state district court in either case.[2]

         On May 26, 2006, the state supreme court affirmed the convictions in both cases, in a consolidated appeal in Nos. 46518 and 46521 in that court.

         The ninety-day time period to file a certiorari petition expired on August 24, 2006.

         Petitioner filed a state post-conviction petition in both cases on August 3, 2006, before the certiorari time expired.

         The state district court clerk mailed a notice of entry of decision and order denying the petition in No. C208788 on November 22, 2006. Petitioner did not appeal the denial of the petition; and the thirty-three-day time period to do so expired on December 26, 2006, following the holiday.

         The state district court clerk mailed a notice of entry of decision and order denying the petition in No. C210008 on November 7, 2006. Petitioner did not appeal the denial of the petition; and the time to do so expired on Monday, December 11, 2006.

         Years thereafter, on June 7, 2010, and May 4, 2016, petitioner filed state post-conviction petitions in both cases on each date. These petitions all were denied as, inter alia, untimely; and the state appellate courts affirmed also on, inter alia, that basis, in Nos. 57179 and 71593 in those courts as to No. C208788 and Nos. 57220 and 71115 as to No. C210008.

         Petitioner's remaining proceedings in the state courts additionally have no material impact upon the federal timeliness analysis. Petitioner filed an original petition pertaining to both No. C208788 and No. C210008 in the state supreme court, but it was pending only from November 22, 2010, through January 3, 2011, in No. 57212 in that court. His only other proceedings in the state supreme court as to either case were concluded before the federal limitation period would have begun running in December 2006, under Nos. 45226, 47805, and 47807 in that court. He filed no other potentially tolling proceedings in the state district court in either case.

         Petitioner previously filed a federal habeas petition challenging both judgments of conviction in No. 3:11-cv-00015-LRH-RAM in this court on or about January 6, 2011. That action was dismissed without prejudice on June 8, 2011, after petitioner failed to respond to a court order that he file a signed ...


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