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Carr v. Baca

United States District Court, D. Nevada

December 19, 2017

BILLY E. CARR, Petitioner,
v.
ISIDRO BACA, et al., Respondents.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.

         This 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).

         I. BACKGROUND

         Petitioner 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 criminal.[1]

         The original judgment of conviction was entered on December 14, 2010, in No. 10C262564 in the state district court.

         The 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.

         On 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.

         Julian 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.

         Petitioner 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.)[2]

         Petitioner 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.)[3]

         Petitioner 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.)

         Petitioner 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 at 25-28.)

         Petitioner 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.

         Petitioner 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.)[4] Petitioner did ...


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