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 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.
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.
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.
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.
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.)
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).
LEGAL STANDARD - STATUTE OF LIMITATIONS
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).
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).
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
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 ...