United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE
pro se petition for a writ of habeas corpus comes
before the Court on the respondents' motion to dismiss
(ECF No. 14). Petitioner has opposed (ECF No. 31), and
respondents have replied (ECF No. 35). In addition,
petitioner has moved for an extension of time to file a
response to the respondents' reply (ECF No. 37). Finally,
petitioner has moved the Court for appointment of counsel
(ECF No. 38).
action, petitioner challenges his conviction pursuant to a
guilty plea of attempted murder. (ECF No. 7; Exh.
September 14, 2011, petitioner signed a waiver of preliminary
examination in which he agreed to plead guilty to attempted
murder. (Exh. 5.) The document provided that the parties
would be free to argue for his sentence, that certain other
cases against petitioner would be dismissed, that petitioner
would also plead guilty to a separate charge of domestic
battery, second offense, and that no other charges or
enhancements would be filed. (Id.; see also
Exh. 8 (Tr. at 3-4).) That same date, an information was
filed in the Second Judicial District Court charging
petitioner with the attempted murder of Kimberly Keller and
Thomas A. on or about July 13, 2011. (Exh. 6.)
September 27, 2011, petitioner appeared at his arraignment
with counsel Scott Edwards and entered a plea of guilty to
the charge of attempted murder. (Exh. 8.) Sentencing was
initially scheduled for November 8, 2011, but on that date
Edwards appeared before the state trial court and represented
that the petitioner's presentence investigation report
had not yet been disclosed. (Exh. 9.) At counsel's
request, sentencing was continued to November 22, 2011.
November 22, 2011, after hearing from the victim and her
daughter, the court sentenced petitioner to a term of 96 to
240 months' imprisonment. (Exh. 9A.) Petitioner appealed.
(Exh. 12.) On appeal, petitioner - still represented by
Edwards - argued that the trial court improperly considered
the victim's daughter's impact statement because
during it she (1) stated that she did not believe petitioner
felt remorse and (2) referenced prior uncharged acts of
domestic violence. (Exh. 26.) On July 25, 2012, the Nevada
Supreme Court affirmed. (Exh. 28.) In particular, the court
noted that petitioner had not objected to the daughter's
impact statement and thus his claims were subject to review
only for plain error. (Id.) Remittitur on the direct
appeal issued on August 21, 2012. (Exh. 29.)
12, 2013, petitioner filed in state court a motion for a
sixty-day extension of time to file his petition for writ of
habeas corpus and a motion for withdrawal of attorney and
transfer of records. (Exhs. 32 & 33.) In the motions,
which were dated June 5, 2013, petitioner represented that
Edwards had not provided him with his opening brief on direct
appeal and asked the court to order Edwards to transfer
petitioner his case file. (Exhs. 32 & 33.)
15, 2013, petitioner filed a petition for writ of habeas
corpus in state court. (Exh. 38.) The petition asserted one
ground: Sixth Amendment ineffective assistance of counsel.
Petitioner alleged counsel was ineffective based on:
“(1) No. time afforded for investigation or
preparation”; (2) “P.S.I. not received until
morning of sentence”; (3) “Last minute plea
bargain with threat. Take it or leave it”; and (4)
“Unprofessional conduct in court on presentence 11/8/11
under the influence. Several witnesses.” (Exh. 38.) On
July 16, 2013, the state court granted petitioner's
motion to withdraw and for the transfer of his records. (Exh.
September 4, 2013, petitioner filed a motion to compel
Edwards to comply with the court's order directing
transfer of his records and a motion for sanctions regarding
the failure to comply. (Exhs. 41 & 42.) On January 6,
2014, petitioner filed a document with the state court
indicating that Edwards still had not complied with the
court's order to transfer petitioner's files. (Exh.
January 17, 2014, the state court appointed Karla Butko to
represent petitioner in his postconviction proceedings. (Exh.
44.) Butko thereafter filed a supplemental habeas petition
asserting further ineffective assistance of counsel claims.
(Exh. 45.) After the trial court denied the petition,
petitioner appealed. (Exhs. 52 & 55.) The Nevada Supreme
Court affirmed on June 19, 2015, and remittitur issued on
July 13, 2015. (Exhs. 68 & 69.)
about November 16, 2015, petitioner dispatched the instant
federal habeas petition for filing. (See ECF No. 1;
ECF No. 7 at 29.) On that same date, petitioner filed a
second state habeas petition. (Exh. 72.) The state trial
court denied the second state habeas petition as untimely and
successive, among other procedural bars, and the Nevada Court
of Appeals affirmed. (Exhs. 81 & 92).
move to dismiss the instant federal petition on several
procedural grounds, including timeliness, exhaustion, and
procedural default. Respondents further argue that several of
petitioner's claims are not cognizable in habeas.
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. 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).
Nevada Supreme Court affirmed petitioner's conviction on
July 25, 2012. Petitioner's judgment of conviction thus
became final on October 23, 2012 - after the 90-day period to
seek certiorari from the United States Supreme Court expired.
Accordingly, the time period for filing a federal habeas
petition began to run on October 24, 2012. On July 15, 2013,
petitioner filed his state postconviction habeas petition.
The time during which that petition was pending tolled the
limitations period under the statute. Two hundred and
sixty-five (265) days elapsed between the date
petitioner's judgment became final and the filing of his
state postconviction petition. The Nevada Supreme Court
issued remittitur on its decision affirming the denial of the
petition on July 13, 2015. Absent a basis for tolling or
other delayed accrual, then, the limitations period expired
100 days after July 13, 2015, on October 21, 2015. Petitioner
filed his federal petition, at the earliest, on November 16,
2015. Accordingly, unless petitioner establishes a basis for
tolling or other delayed accrual, the instant petition was
filed twenty-six (26) days after the expiration of the
federal statute of limitations.
opposition, petitioner asserts that he is entitled to
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 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).
Accord Bryant v. Arizona Attorney General, 499 F.3d
1056, 1061 (9th Cir. 2007).
liberally, petitioner's opposition asserts that he is
entitled to equitable tolling because he did not have his
case file when he was preparing to file his state
postconviction petition. (ECF No. 31 at 10-11.) While the
complete lack of a case file might, under some circumstances,
justify equitable tolling, see Waldron-Ramsey v.
Pacholke, 556 F.3d 1008, 1013 (9th Cir. 2009); Lott
v. Mueller, 304 F.3d 918, 924-25 (9th Cir. 2002),
petitioner's allegation does not - standing alone -
establish an entitlement to tolling. Petitioner has not
established his own diligence before June 5, 2013, when he
first decided to seek his file from his attorney, or
“that the hardship caused by lack of access to his
materials was an extraordinary circumstance that
caused” the untimely filing of his federal petition.
See Waldron-Ramsey, 556 F.3d at 1013. However, it is
a non-frivolous claim of equitable tolling and thus further
factual development would be required before the Court could
rule on it. In the interests of judicial economy, the Court
exercises its discretion to decline to decide the issue at
this time. See Van Buskirk v. Baldwin, 265 F.3d
1080, 1083 (9th Cir. 2001) (Court may properly deny petition
on merits rather than reaching “the complex questions
lurking in the time bar of the AEDPA.”), cert.
denied, 535 U.S. 950 (2002); Cooper v.
Calderon, 274 F.3d 1270, 1275 n. 3 (9th Cir. 2001) (per
curiam) (denying petition on merits rather than remanding to
consider equitable tolling); see also Day v.
McDonough, 547 U.S. 198, 208-209 (2006) (“In lieu
of an inflexible rule requiring dismissal whenever
AEDPA's one-year clock has run . . . the State reads the
statutes, Rules, and decisions in point to permit the
exercise of discretion . . . to decide whether the
administration of justice is better served by dismissing the
case on statute of limitations grounds or by reaching the
merits of the petition . . . . We agree.”).
respondents' motion to dismiss the petition on the
grounds that it is untimely will be denied without prejudice
to renew in the answer. Should respondents choose to renew
the timeliness argument in their answer, petitioner will - in
his reply - explain and provide any available factual support
demonstrating when and how he tried to obtain his file from
Edwards and how the lack of his file prevented the timely
filing of the instant habeas petition.