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White v. Baca

United States District Court, D. Nevada

December 21, 2017

GILBERT WHITE, Petitioner,
v.
ISIDRO BACA, 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 (ECF No. 14). Respondents contend, inter alia, that the petition is subject to dismissal with prejudice as untimely, which is the only issue reached herein. Petitioner's opposition to the motion to dismiss does not respond to respondents' argument and showing that the petition is untimely. (See ECF No. 27.)

         I. BACKGROUND

         Petitioner Gilbert White challenges his Nevada state conviction, pursuant to a guilty plea, of two counts of sexual assault on a child. He is serving two concurrent sentences of life with the possibility of parole after twenty years. (ECF No. 15-22; Exh. 22.)[1]

         The judgment of conviction was filed on February 15, 2008. Petitioner did not file a direct appeal, and the time to do so expired on Monday, March 17, 2008.

         After 322 intervening days had elapsed, on February 3, 2009, petitioner filed a timely state post-conviction petition. The state district court denied the petition on the merits, and the state supreme court affirmed. The remittitur concluding the state post-conviction appeal issued on June 7, 2013. (See ECF Nos. 15-25, 18-23, 19-12 & 19-13; Exhs. 25, 113, 132 & 133.)

         Over two years later, on or about October 25, 2015, petitioner dispatched the federal petition in this matter to the Clerk of this Court for filing. (See ECF No. 1-1 at 1.)[2]

         The record presented does not reflect any other potentially tolling filings in the state courts or the entry of any amended or corrected judgments of conviction prior to the filing of the federal petition.

         Subsequent to the filing of the federal petition, on November 23, 2015, petitioner filed a second state post-conviction petition. The state district court denied the petition as untimely and further on the basis of laches. The state appellate courts affirmed on those grounds as well as on the basis that the petition was successive. The remittitur issued on November 14, 2016. (See ECF Nos. 19-16, 19-28, 20-3, 20-12 & 20-13; Exhs. 136, 148, 153, 162 & 163.)

         II. DISCUSSION

         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." In the present case, absent a basis for tolling or delayed accrual, the federal limitation period therefore began running after the March 17, 2008, expiration of the time to file a direct appeal.

         Petitioner's timely first state petition statutorily tolled the running of the limitation period under § 2244(d)(2), however, from the February 3, 2009, filing date of the petition through the June 7, 2013, issuance of the remittitur. Three hundred twenty-two (322) days elapsed between March 17, 2008, and February 3, 2009.

         Accordingly, absent other tolling or delayed accrual, the federal one-year limitation period expired after another 43 days had elapsed after the June 7, 2013, remittitur, i.e., on Monday, July 22, 2013.[3]

         The federal petition was not dispatched for filing until October 25, 2015, more than two years after the federal limitation period had expired, absent a basis for tolling or delayed ...


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