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Cepero v. Williams

United States District Court, D. Nevada

January 22, 2018

BILLY CEPERO, Petitioner,
v.
BRIAN WILLIAMS, 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 petitioner Billy Cepero's counseled, first-amended petition as untimely (ECF No. 22). Cepero opposed (ECF No. 25), and respondents replied (ECF No. 26). As discussed below, this petition must be dismissed as untimely.

         I. BACKGROUND

         A jury convicted Cepero of count 1: resisting public officer; count 2: discharging firearm within a structure; count 4: carrying a concealed weapon or other deadly weapon; count 5: possession of firearm by ex-felon; and not guilty of count 3: battery on an officer with use of a deadly weapon (Exh. C).[1] The state district court sentenced Cepero to four concurrent terms of life with the possibility of parole. Id. Judgment of conviction was entered on August 27, 2010. Id.

         Cepero, through counsel, filed a notice of appeal of October 21, 2010. (Exh. D.) On March 17, 2011, the Nevada Supreme Court dismissed the untimely appeal for lack of jurisdiction. (Exh. E.)

         On June 24, 2014, Cepero filed a counseled state postconviction petition. (Exh. K.) The state district court denied the petition, and the Nevada Supreme Court affirmed the denial of the petition on October 19, 2015. (Exhs. N, T.)

         Cepero dispatched his federal habeas petition for mailing about August 12, 2014 (ECF No. 1-1). On March 11, 2015, the Court granted Cepero's motion for stay and abeyance pending the final resolution of his state-court proceedings (ECF No. 8). The Court granted Cepero's motion to reopen the case on October 3, 2016, and Cepero filed a counseled, first-amended petition (ECF No. 18). Respondents have moved to dismiss the petition as time-barred (ECF No. 22).

         II. LEGAL STANDARD - STATUTE OF LIMITATIONS

         The Antiterrorism and Effective Death Penalty Act (AEDPA) went into effect on April 24, 1996, and imposes a one-year statute of limitations on the filing of federal habeas corpus petitions. 28 U.S.C. § 2244(d). The one-year time limitation can run from the date on which a petitioner's judgment became final by conclusion of direct review, or the expiration of the time for seeking direct review. 28 U.S.C. § 2244(d)(1)(A). Further, a properly filed petition for state postconviction relief can toll the period of limitations. 28 U.S.C. § 2244(d)(2).

         A petitioner may be entitled to equitable tolling if he can show “‘(1) that he has been pursuing his right diligently, and that (2) some extraordinary circumstance stood in his way' and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2009) (quoting prior authority). 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.” 292 F.3d at 1065. He accordingly must demonstrate a causal relationship between the extraordinary circumstance and the lateness of his filing. E.g., Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003).

         Ignorance of the one-year statute of limitations does not constitute an extraordinary circumstance that prevents a prisoner from making a timely filing. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“a pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling”).

         III. INSTANT ACTION

         Cepero alleges five federal grounds for habeas relief:

Ground 1: Cepero is entitled to a new trial because a juror slept through portions of the trial in violation of Cepero's Fifth and Fourteenth Amendment rights (ECF No. 18, pp. 8-10).
Ground 2: Cepero is entitled to a new trial because the State introduced improper bad act evidence in violation of his Fifth, Sixth, and Fourteenth ...

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