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Hundley v. Baker

United States District Court, D. Nevada

November 13, 2017

JAMEE DEIRDRE HUNDLEY, a.k.a. JAMES DERRICK HUNDLEY, Petitioner,
v.
RENEE BAKER, et al., Respondents.

          ORDER

         Introduction

         This is 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.

         Background

         On 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 and JL.

         After a 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. 19-32).

         The 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).

         Hundley 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. 20-9).

         Hundley then took no further action regarding the case for more than a decade.

         On 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 No. 21-9).

         Hundley 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 No. 22-29).

         This Court received Hundley's pro se habeas petition (ECF No. 2), initiating this action, on November 8, 2016.

         On 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).

         Respondents 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 No. 27).

         Discussion

         Statute of Limitations

         The 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 sentences:

(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.

         Hundley's 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.

         Hundley 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.

         Hundley 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.

         A 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.

         A 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).

         Hundley's 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 id.

         CL 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 as follows:

Q. Has anybody ever touched you in your vagina in a way you didn't like?
A. Yes.
Q. Who?
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?
A. Yes.
Q. Who drew that picture?
A. Me.
* * *
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?
A. Yes.
Q. What are Derrick's legs doing in this picture? Are they out straight, are they bent, or what are they doing?
A. Separated.
Q. What are you and Derrick doing in this picture? [CL], do you know you're not it trouble?
A. Yes.
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?
A. 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?
A. Derrick's.
Q. Is that the one in his bedroom?
A. Yes.
Q. Okay. And Derrick is on the bed with his legs spread; is that what you said?
A. Yes.
Q. What's Derrick ...

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