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 (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.)
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;
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.
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.)
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
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.
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.)
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.
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.
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.
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