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Beltran v. Baker

United States District Court, D. Nevada

November 13, 2017

RICARDO BELTRÁN, Petitioner,
v.
RENEE BAKER, et al., Respondents.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE

         This represented habeas matter under 28 U.S.C. § 2254 comes before the Court on a pending show-cause inquiry as to whether the petition is subject to dismissal as time-barred under 28 U.S.C. § 2244(d).

         I. BACKGROUND

         Petitioner Ricardo Beltrán challenges his Nevada state conviction, pursuant to a jury verdict, of two counts of first-degree kidnapping and six counts of sexual assault with a deadly weapon.

         The original judgment of conviction was entered on January 10, 2006, and petitioner filed a timely appeal. (ECF Nos. 21-12 & 21-13.)

         On February 14, 2006, while the appeal was pending, an amended judgment of conviction was filed in the state district court. The amended judgment corrected the original judgment to reflect that the judgment was entered following a jury verdict rather than a guilty plea. (ECF No. 21-15.)

         The Supreme Court of Nevada affirmed on November 8, 2006, but with a remand for the limited purpose of correcting the original judgment of conviction to reflect that Beltrán was convicted pursuant to a jury verdict. (ECF No. 22-5 at 10-11.)[1]

         No amended or corrected judgment was entered in the state district court thereafter, likely due to the fact that the error identified by the state supreme court already had been corrected by the February 14, 2006, amended judgment of conviction.

         The ninety-day time period for filing a certiorari petition expired on February 6, 2007.[2]

         On or about February 1, 2008, petitioner mailed two state post-conviction petitions, one of which was filed by the state district court's clerk on February 4, 2008. (ECF No. 22-7.)

         The state supreme court's clerk filed the other, substantially identical, petition in that court on February 5, 2008. The state supreme court denied the petition in that court in a March 5, 2008, order; and notice in lieu of remittitur was issued on April 1, 2008. (ECF Nos. 22-8, 22-13 & 22-14.)

         Thereafter, in the state district court, the State filed a response on April 23, 2008, seeking dismissal of the petition as, inter alia, untimely. The state district court dismissed the petition as, inter alia, untimely via a June 10, 2008, notice of entry of decision and order. The Supreme Court of Nevada affirmed on the basis of untimeliness via a February 4, 2009, order of affirmance. (ECF Nos. 22-15, 22-17 & 22-20.)

         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 before the constructive filing date of the federal petition. There has been no other intervening amended or corrected judgments of conviction filed in the district court after the February 14, 2006, amended judgment of conviction.

         Petitioner mailed the federal petition to the Clerk for filing on or about January 28, 2013.

         II. DISCUSSION

         A. Base Calculation of the Federal Limitation Period

         Under 28 U.S.C. § 2244(d)(1)(A), 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."

         Putting the February 14, 2006, amended judgment of conviction to the side for the moment, the base calculation of the federal limitation period otherwise would proceed as follows. The federal limitation period, absent a basis for tolling or delayed accrual, would begin running after the February 6, 2007, expiration of the certiorari period and, absent such tolling or delayed accrual, expire one year later on February 6, 2008. Petitioner's original petition in the state supreme court, however, would statutorily toll the federal limitation period under § 2244(d)(2) from February 5, 2008 - one day before the putative expiration of the federal limitation period - through April 1, 2008. Blair v. Crawford, 275 F.3d 1156 (9th Cir. 2002). His untimely petition filed in the state district court, however, would not statutorily toll the limitation period under § 2244(d)(2). Pace v. DiGuglielmo, 544 U.S. 408 (2005). Accordingly, absent other tolling or delayed accrual, the federal expiration period would expire one day after April 1, 2008, i.e., on April 2, 2008.

         The Ninth Circuit's recent decision in Smith v. Williams, 871 F.3d 684 (9th Cir. 2017), potentially would appear to suggest, however, that the federal limitation period began to run instead from the expiration of the time for seeking direct review of the February 14, 2006, amended ...


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