United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE
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.
November 26, 2012, Deloney pleaded guilty pursuant to a
written plea agreement to robbery with a deadly weapon
(exhibit 32). 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.)
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.
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,
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).
LEGAL STANDARD - STATUTE OF LIMITATIONS
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).
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).
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
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 ...