United States District Court, D. Nevada
JAMEE DEIRDRE HUNDLEY, a.k.a. JAMES DERRICK HUNDLEY, Petitioner,
RENEE BAKER, et al., Respondents.
a habeas corpus action brought by Nevada prisoner Jamee
Deidre Hundley, also known as James Derrick Hundley. The
respondents have filed a motion to dismiss, on statute of
limitations grounds. The Court will grant the motion to
dismiss and will dismiss this action.
January 8, 1996, The State charged Hundley with three counts
of sexual assault involving nine-year-old CL, and one count
of gross misdemeanor child abuse involving four-year-old ML.
See Amended Criminal Complaint, Exhibit 4 (ECF No.
19-4). CL and ML, along with JL, were the children of
Hundley's girlfriend, Jennifer Lockamy; when the crimes
were committed, Hundley lived in Reno with Lockamy, CL, ML
preliminary hearing (see Transcripts of Preliminary
Hearing, Exhibits 5 and 6 (ECF Nos. 19-5, 19-6)), the State
amended the charges, replacing the gross misdemeanor child
abuse charge with a charge of felony child abuse causing
substantial bodily harm. See Second Amended Criminal
Complaint, Exhibit 7 (ECF No. 19-7); Information, Exhibit 8
(ECF No. 19-8); Amended Information, Exhibit 26 (ECF No.
19-26); Second Amended Information, Exhibit 32 (ECF No.
case proceeded to trial in Nevada's Second Judicial
District Court, in Washoe County, Nevada, in July 1996.
See Transcripts of Trial, Exhibits 28, 29, 35 (ECF
Nos. 19-28, 19-29, 20-1). The jury found Hundley guilty of
all four charges. See Jury Verdicts, Exhibit 34 (ECF
No. 20). Hundley was sentenced on August 30, 1996
(see Transcript of Sentencing, Exhibit 36 (ECF No.
20-2), as follows:
Count 1, sexual assault - life in prison, with the
possibility of parole after 20 years;
Count 2, sexual assault - life in prison, with the
possibility of parole after 20 years, consecutive to the
sentence on Count 1;
Count 3, sexual assault - life in prison, with the
possibility of parole after 20 years, concurrent with the
sentences on Counts 1 and 2;
Count 4, child abuse causing substantial bodily harm - 144
months in prison, with the possibility of parole after 56
months, concurrent with the sentences on Counts 1, 2 and 3.
See Judgment, Exhibit 37 (ECF No. 20-3).
appealed from his conviction. See Notice of Appeal,
Exhibit 38 (ECF No. 20-4). The Nevada Supreme Court affirmed
Hundley's conviction and sentence on April 21, 1999.
See Order Dismissing Appeal, Exhibit 43 (ECF No.
then took no further action regarding the case for more than
November 20, 2012, Hundley filed a petition for writ of
habeas corpus in the state district court. See
Petition for Writ of Habeas Corpus, Exhibit 67 (ECF No. 21).
The state district court denied the petition on March 19,
2013, ruling that it was barred by the state-law statute of
limitations. See Order Denying Petition for Habeas
Corpus (Post-Conviction), Exhibit 68 (ECF No. 21-1). Hundley
appealed, and the Nevada Supreme Court affirmed on September
19, 2013. See Order of Affirmance, Exhibit 76 (ECF
filed a second state-court habeas petition on June 19, 2014.
See Petition for Writ of Habeas Corpus
(Post-Conviction), Exhibit 80 (ECF No. 21-13). Counsel was
appointed, and Hundley filed a Supplemental Petition for Writ
of Habeas Corpus. See Supplemental Petition for Writ
of Habeas Corpus (Post Conviction), Exhibit 102 (ECF No.
22-2). The state district court dismissed that action as
untimely and successive. See Order, Exhibit 111 (ECF
No. 22-11). The Nevada Court of Appeals affirmed on December
29, 2015, ruling that Hundley's petition was procedurally
barred. See Order of Affirmance, Exhibit 129 (ECF
Court received Hundley's pro se habeas petition
(ECF No. 2), initiating this action, on November 8, 2016.
November 16, 2016, the Court screened Hundley's petition,
and determined that it appeared to be barred by the statute
of limitations. See Order entered November 16, 2016
(ECF No. 8). The Court granted Hundley an opportunity to show
cause why the case should not be dismissed on that ground.
See id. On December 30, 2016, Hundley responded,
asserting a claim of actual innocence to overcome the statute
of limitations bar. See Motion to Show Cause (ECF
No. 11). On January 24, 2017, the Court ruled that, under the
circumstances, the Court would be able to consider
Hundley's claim of actual innocence with a more complete
record, and with the respondents' argument, and the Court
ordered respondents to respond to the petition. See
Order entered January 24, 2017 (ECF No. 13).
then filed their motion to dismiss (ECF No. 18) on June 8,
2017, asserting the statute of limitations. Hundley filed an
opposition to the motion to dismiss on August 7, 2017 (ECF
No. 24). Respondents filed a reply on September 28, 2017 (ECF
Antiterrorism and Effective Death Penalty Act (AEDPA),
enacted in 1996, included a one-year statute of limitations
for federal habeas petitions challenging state convictions or
(1) 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). Respondents contend that Hundley's
petition is barred by the statute of limitations.
direct appeal concluded on April 21, 1999, when the Nevada
Supreme Court affirmed Hundley's conviction and sentence.
See Order Dismissing Appeal, Exhibit 43 (ECF No.
20-9). Adding the ninety days within which a petition for a
writ of certiorari could have been filed in the United States
Supreme Court (see Supreme Court Rule 13), the date
on which Hundley's conviction became final, for purposes
of the AEDPA statute of limitations, was July 20, 1999.
Running from that date, without any tolling, the limitations
period expired on July 20, 2000.
did not initiate a state-court habeas action until more than
twelve years later, in 2012. After the passage of that time,
both of his state-court habeas actions were ruled untimely.
See Order of Affirmance, Exhibit 76 (ECF No. 21-9);
Order of Affirmance, Exhibit 129 (ECF No. 22-29). An untimely
state post-conviction petition is not considered
“properly filed, ” and does not afford the
petitioner statutory tolling of the AEDPA statute of
limitations. See 28 U.S.C. § 2244(d)(2);
Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005).
Therefore, the AEDPA limitations period continued to run.
signed his federal habeas petition on October 26, 2016, and
mailed it for filing. More than 16 years had passed, after
Hundley's conviction became final, before Hundley
initiated this action.
habeas corpus petitioner is entitled to equitable tolling of
the AEDPA statute of limitations if the petitioner shows:
“‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way' and prevented timely filing.”
Holland v. Florida, 560 U.S. 631, 649 (2010)
(quoting Pace, 544 U.S. at 418). Hundley does not
make any argument for equitable tolling.
federal habeas petitioner may also overcome the expiration of
the AEDPA statute of limitations by making a showing of
actual innocence. McQuiggin v. Perkins, 133 S.Ct.
1924, 1928-35 (2013); see also Lee v. Lampert, 653
F.3d 929 (9th Cir. 2011). When an otherwise time-barred
habeas petitioner “presents evidence of innocence so
strong that a court cannot have confidence in the outcome of
the trial unless the court is also satisfied that the trial
was free of non-harmless constitutional error, ” the
court may consider the petition on the merits. See Schlup
v. Delo, 513 U.S. 298, 316 (1995). Under
Schlup, a petitioner may overcome a procedural
default or expiration of the statute of limitations by (1)
producing “new reliable evidence [of innocence] --
whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence -- that
was not presented at trial, ” Schlup, 513 U.S.
at 324, and (2) showing “that it is more likely than
not that no reasonable juror would have convicted him in
light of the new evidence.” Id. at 327. The
Schlup standard permits review only in the
“extraordinary” case. Id. at 324. The
Supreme Court has cautioned that “tenable
actual-innocence gateway pleas are rare.”
McQuiggin, 133 S.Ct. at 1928. “[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. (citing
Schlup, 513 U.S. at 329); see also House v.
Bell, 547 U.S. 518, 538 (2006) (emphasizing that the
Schlup standard is demanding and seldom met).
sole response to the respondents' assertion of the
statute of limitations defense is a claim of actual
innocence. And, Hundley's claim of actual innocence is
based entirely on a statement made by Jennifer Lockamy, the
victims' mother, at Hundley's sentencing.
See Opposition to Motion to Dismiss (ECF No. 24).
Hundley claims that, at the sentencing, Lockamy testified
that CL, JL and ML had recanted their testimony. See
testified at Hundley's trial. See Testimony of
CL, Trial Transcript, July 23, 1996, Exhibit 28, pp. 163-89
(ECF No. 19-28). CL was nine years old in December 1995, when
Hundley was arrested. See id. at 164. CL testified
Q. Has anybody ever touched you in your vagina in a way you
A. Derrick [Hundley].
Q. When did Derrick do that?
A. All the time.
Q. Where were you and he at when he touched your vagina A. In
my -- in his room.
* * *
Q. All right. I'm going to show you what's been
marked as State's Exhibit 12 for identification. Do you
recognize that picture?
Q. Who drew that picture?
* * *
Q. [CL], what's this in the middle of the picture?
A. A penis.
Q. Okay. Whose penis?
A. Derrick's [Hundley's].
Q. All right. What's this on my right side, your left
side of the picture?
What's over here?
A. Derrick going on the bed.
Q. And this is [CL] in front of Derrick?
Q. What are Derrick's legs doing in this picture? Are
they out straight, are they bent, or what are they doing?
Q. What are you and Derrick doing in this picture? [CL], do
you know you're not it trouble?
Q. Do you have an answer? Can you answer that question?
It's a hard one, I know. How about if I break it up into
little pieces, okay? In this picture right here, did you have
your clothes on or off?
Q. How did your clothes get off?
A. I mean, on.
Q. Okay. All right. That's all right. Go slow. Did
Derrick have his clothes on or off?
A. Just his T-shirt on.
Q. Okay. And do you know how his clothes got off? Or were
they ever on?
A. They were on, but he took them off.
Q. All right. Whose bed is this?
Q. Is that the one in his bedroom?
Q. Okay. And Derrick is on the bed with his legs spread; is
that what you said?
Q. What's Derrick ...