United States District Court, D. Nevada
BILLY E. CARR, Petitioner,
ISIDRO BACA, et al., Respondents.
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.
habeas matter 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) together with
petitioner's motion for appointment of counsel (ECF No.
5). This order follows upon the Court's earlier
show-cause order (ECF No. 3) and petitioner's response
thereto (ECF No. 6).
Billy Carr challenges his Nevada state judgment of
conviction, pursuant to a jury verdict, of burglary and grand
larceny and his sentencing as a habitual
original judgment of conviction was entered on December 14,
2010, in No. 10C262564 in the state district court.
Supreme Court of Nevada affirmed the conviction on direct
appeal on July 27, 2012; and the court denied a petition for
reconsideration en banc on November 28, 2012, in No.
57553 in that court. The ninety-day time period for filing a
petition for a writ of certiorari in the United
States Supreme Court expired on February 26, 2013.
August 8, 2013, petitioner filed a timely state
post-conviction petition in the state district court. The
state appellate courts affirmed the denial of the petition on
the merits on August 17, 2016; and the remittitur concluding
the state post-conviction appeal issued on September 13,
2016, in No. 68899 in those courts.
Gregory had been appointed as counsel for petitioner in the
state post-conviction proceedings. Gregory represented
petitioner in both the state district court and state
appellate courts during those proceedings.
asserts in his show-cause response that “on Dec.
19th, 2016, Petitioner received a letter from
Counsel concluding his representation in my case and to
further remind me that I have 365 days to file a petition
from the order dated (09/13/16) from the letter.” (ECF
No. 6, at 3.)
attaches with his response a copy of a December 19, 2016,
letter from Gregory. The body of the letter reads as follows:
Enclosed please find the Remittitur for the above referenced
case. This concludes my representation in your case.
Please be aware that you have 365 days from the date on the
order (09/13/16) within which to file a post-conviction
petition. The time remaining after you file your state
post-conviction petition is your deadline for your federal
petition. I encourage you to file your state petition as soon
as possible as you must file your state petition before
filing in federal court.
(ECF No. 6, at 23.)
maintains that “[f]rom the letter, Petitioner thought,
he had 1 year to file the state petition and federal petition
in which I did file both before the 365 days was up.”
(ECF No. 6, at 3.)
further maintains that the September 13, 2016, remittitur was
not enclosed with Gregory's December 19, 2016, letter. He
maintains that he repeatedly tried to call counsel's
office and finally got through to Gregory's legal
assistant Tannia Garcia the first week of April 2017. She
then sent him a copy of the remittitur. (ECF No. 6, at 3-4.)
The copy of Garcia's April 11, 2017, letter attached with
the show-cause response states that a copy of the remittitur
had been enclosed with the original December 19, 2016,
transmittal but that Garcia was enclosing another copy. She
enclosed with the letter a copy of the remittitur along with
a copy of the earlier letter with the remittitur. (ECF No. 6
maintains that “the only extraordinary circumstance
that might have prevented my untimely filing was not
receiving the remittitur until April 12th,
2017.” (ECF No. 6 at 4.) No filing other than the bare
one-page remittitur was sent with Garcia's letter.
thereafter filed a second state petition in the state
district court on May 17, 2017. The state district court
dismissed the petition as untimely and successive only a
short time after its filing, per a July 26, 2017, bench
ruling and a September 5, 2017, notice of entry of a written
decision and order. (See ECF No. 6 at
14-19.) Petitioner did ...