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Collins v. State

United States District Court, D. Nevada

January 19, 2018

MARK COLLINS, Petitioner,
STATE OF NEVADA, et al., Respondents.



         This pro se petition for a writ of habeas corpus comes before the Court on the respondents' motion to dismiss (ECF No. 15). Petitioner has opposed (ECF No. 26), and respondents have replied (ECF No. 30). In addition, petitioner has filed an unauthorized sur-reply (ECF No. 31), which respondents have moved to strike (ECF No. 32). Petitioner asks the Court to allow the filing of the sur-reply (ECF No. 33), which respondents oppose (ECF No. 34). In addition, petitioner has moved the Court for appointment of counsel (ECF No. 22).

         I. BACKGROUND

         Petitioner in this action challenges his conviction pursuant to a guilty plea of two counts of robbery, one count of robbery with use of a deadly weapon, and one count of conspiracy to commit robbery. (ECF No. 13; Exh. 49.[1])

         On May 8, 2008, the grand jury in Clark County returned an eighteen-count indictment charging petitioner and two co-defendants, Andrew Cates and Michael Martin, with, inter alia, conspiracy to commit robbery in violation of Nevada Revised Statutes §§ 199.480 and 200.380 and robbery in violation of § 200.380 on November 26, 2007. The indictment further charged petitioner, Cates, and an unknown co-conspirator with conspiracy to commit robbery and robbery on November 8, 2007, and conspiracy to commit robbery and robbery with use of a deadly weapon in violation of Nevada Revised Statutes §§ 200.380 and 193.165 on January 15, 2008. (Exh. 6.)

         On April 15, 2010, petitioner entered a plea of guilty to four counts of an amended indictment: (1) Count 1 - Conspiracy to Commit Robbery on November 8, 2007, November 26, 2007, and January 15, 2008; (2) Count 2 - Robbery on November 8, 2007; (3) Count 3 - Robbery on November 26, 2007; and (4) Count 4 - Robbery with Use of a Deadly Weapon on January 15, 2008.[2] (Exh. 41.) After petitioner entered his plea but before he was sentenced, his attorney, Thomas Naylor, passed away. (Exh. 43.) Scott Eichhorn was thereafter appointed to represent petitioner. (Exh. 44.) Petitioner was sentenced on August 31, 2010, and judgment of conviction was entered on September 2, 2010. (Exhs. 48 & 49.) Petitioner did not thereafter file any direct appeal.

         On November 22, 2011, Eichhorn filed a notice of withdrawal as counsel of record. (Exh. 52.) On June 14, 2012, petitioner filed a pro se motion for withdrawal of counsel and for his case file. (Exh. 54.) According to petitioner, Eichhorn did not provide petitioner with any of his case file until June 26, 2012, when he gave petitioner part of his file. (See ECF No. 26 (Opp. 40)). On July 11, 2012, the state district court denied as moot petitioner's motion because Eichhorn had already withdrawn and “his standard procedure is for files to be provided to the defendants upon withdrawal.” (Exh. 56.)

         On April 1, 2013, petitioner filed a state post-conviction petition for writ of habeas corpus. (Exh. 57.) On April, 10, 2014, the Nevada Supreme Court affirmed the state district court's denial of the petition as untimely. (Exhs. 69 & 77.) Remittitur issued on May 5, 2014. (Exh. 78.)

         On January 6, 2015, petitioner filed a second state postconviction habeas petition. (Exh. 82.) While the petition was pending, petitioner filed a motion to withdraw his guilty plea. (Exh. 92.) The state court denied the second petition as untimely and successive and denied the motion to withdraw plea. (Exhs. 93 & 96.) Petitioner appealed, and both orders were affirmed. (Exhs. 97, 99 & 110.) Remittitur issued on December 15, 2015. (Exh. 115.)

         While the appeals were pending, on August 27, 2015, petitioner filed a third state postconviction habeas petition and another motion to withdraw plea. (Exhs. 100 & 102.) The state district court denied the motion and petition as untimely, and the Nevada Court of Appeals affirmed. (Exhs. 112 & 123.) Remittitur issued on July 18, 2016. (Exh. 125.)

         On or about June 21, 2016, petitioner dispatched for filing the instant federal habeas petition.[3] (See Exh. 1-1.) Respondents move to dismiss the petition as, inter alia, untimely.


         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) established a one-year period of limitations for federal habeas petitions filed by state prisoners. The one-year limitation period begins to run after the date on which the judgment challenged became final by the conclusion of direct review or the expiration of the time for seeking such direct review, unless it is otherwise tolled or subject to delayed accrual.[4] 28 U.S.C. § 2244(d)(1)(A). The limitations period is tolled while “a properly filed application for State post-conviction or other collateral review” is pending. Id. § 2244(d)(2). An untimely state habeas petition is not “properly filed” and thus does not toll the limitations period. Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005). In addition, a state habeas petition cannot toll a federal limitations period that has already expired by the time the state petition is filed. Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003).

         Petitioner's judgment of conviction was entered on September 2, 2010. As petitioner did not file a direct appeal, his conviction became final on October 4, 2010 - the date the time for filing a notice of appeal expired.[5] Accordingly, the time period for filing a federal habeas petition began to run on October 5, 2010. Absent a basis for tolling or other delayed accrual, the limitations period expired on October 4, 2011. Thus petitioner's petition, filed on July 20, 2016, is on its face untimely.

         While the limitations period can be tolled during the pendency of properly filed applications for State post-conviction or other collateral review, petitioner filed no such applications in state court before the limitations period expired.[6] Petitioner nonetheless argues that his petition is timely based on (1) equitable tolling, and/or (2) actual innocence.

         A. Equitable Tolling

         A petitioner can establish an entitlement to equitable tolling under certain, very limited circumstances. Equitable tolling is appropriate only if the petitioner can show that: (1) he has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way and prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010). 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.” Id. at 1065. He accordingly must demonstrate a ...

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