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DeLoney v. Wickham

United States District Court, D. Nevada

December 8, 2017

DONALD DELONEY, Petitioner,
v.
WICKHAM, et al., Respondents.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

         This habeas matter under 28 U.S.C. § 2254 comes before the Court on respondents' motion to dismiss petitioner Donald Deloney's pro se petition as untimely (ECF No. 13). Deloney opposed (ECF No. 26), and respondents replied (ECF No. 27). As discussed below, this petition must be dismissed as untimely.

         I. BACKGROUND

         On November 26, 2012, Deloney pleaded guilty pursuant to a written plea agreement to robbery with a deadly weapon (exhibit 32).[1] The state district court sentenced Deloney to 72 to 180 months, with a consecutive term of 18 to 45 months for the deadly-weapon enhancement. (Exh. 37.) Judgment of conviction was entered on March 11, 2013. (Exh. 36.)

         Deloney attempted to file a direct appeal, which the Nevada Supreme Court dismissed on June 13, 2013, for lack of jurisdiction because the notice of appeal was filed one day late. (Exh. 53.) The Nevada Supreme Court denied rehearing on September 25, 2013, and remittitur issued on October 24, 2013. (Exh. 59.)

         On January 29, 2014, Deloney filed a proper person state postconviction petition. (Exh. 60.) The parties stipulated that Deloney could raise all claims-including those he should have raised on direct appeal-in his state postconviction petition. (Exh. 70.) The state district court ultimately quashed the postconviction petition. (Exh. 74.) On July 14, 2015, the Nevada Supreme Court affirmed the state district court, and remittitur issued on August 10, 2015. (Exhs. 87, 88.)

         Deloney dispatched his federal habeas petition for mailing about February 14, 2016 (ECF No. 1-1). Respondents have moved to dismiss the petition as time-barred (ECF No. 13).

         II. LEGAL STANDARD - STATUTE OF LIMITATIONS

         The Antiterrorism and Effective Death Penalty Act (AEDPA) went into effect on April 24, 1996, and imposes a one-year statute of limitations on the filing of federal habeas corpus petitions. 28 U.S.C. § 2244(d). The one-year time limitation can run from the date on which a petitioner's judgment became final by conclusion of direct review, or the expiration of the time for seeking direct review. 28 U.S.C. § 2244(d)(1)(A). Further, a properly filed petition for state postconviction relief can toll the period of limitations. 28 U.S.C. § 2244(d)(2).

         A petitioner may be entitled to equitable tolling if he can show “‘(1) that he has been pursuing his right diligently, and that (2) some extraordinary circumstance stood in his way' and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2009) (quoting prior authority). Equitable tolling is “unavailable in most cases, ” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) and “the threshold necessary to trigger equitable tolling is very high, lest the exceptions swallow the rule, ” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). The petitioner ultimately has the burden of proof on this “extraordinary exclusion.” 292 F.3d at 1065. He accordingly must demonstrate a causal relationship between the extraordinary circumstance and the lateness of his filing. E.g., Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003).

         Ignorance of the one-year statute of limitations does not constitute an extraordinary circumstance that prevents a prisoner from making a timely filing. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“a pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling”).

         III. DISCUSSION

         Deloney alleges that his plea counsel rendered ineffective assistance, that his Miranda rights were violated, and that the state district court erred by not granting his state petition (ECF No. 7).

Ground 1: Trial counsel provided ineffective assistance because he “failed to discuss the pre-sentence interview and how the pre-sentence report would be used at sentencing, ” failed to inform petitioner of his right to remain silent during the pre-sentence interview, and failed to attend the pre-sentence interview, which resulted in the imposition of “a more ...

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