United States District Court, D. Nevada
CORNELIUS A. GAINES, III, Petitioner,
D.W. NEVEN, et al., Respondents.
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.
habeas matter comes before the Court on a pending show-cause
inquiry as to whether the petition is subject to dismissal as
time-barred under 28 U.S.C. § 2244(d), together with
petitioner's motion for appointment of counsel (ECF No.
6) and motion for an evidentiary hearing (ECF No. 7). This
order follows upon the Court's earlier show-cause order
(ECF No. 10) and petitioner's response thereto (ECF Nos.
11 and 12).
Cornelius Gaines challenges his Nevada state judgment of
conviction, pursuant to a jury verdict, of a multitude of
offenses, including sexual assault with the use of a deadly
weapon, arising from the commission of three separate
incidents of sexual assault and robbery. See Gaines v.
State, 2014 WL 2466316, No. 59892 (Nev., May 30,
original judgment of conviction was entered on November 18,
2011, in No. 07C233567 in the state district court.
Supreme Court of Nevada affirmed the conviction on direct
appeal on May 30, 2014, in No. 59892 in that court. The time
period for filing a petition for a writ of
certiorari in the United States Supreme Court
expired on August 28, 2014.
30, 2015, petitioner filed a state post-conviction petition
in the state district court. The district court held that the
petition was untimely in a bench ruling on October 22, 2015,
and thereafter via November 30, 2015, written findings,
conclusions, and order. Petitioner appealed the untimeliness
dismissal on November 30, 2015, prior to the December 2,
2015, notice of entry of the findings, conclusions, and
appeal, the state appellate courts affirmed on the basis that
the petition was untimely. The order of affirmance was issued
in No. 69321 in that court on January 19, 2017; and the
remittitur issued on February 14, 2017.
other timely petitions, motions, or other proceedings seeking
collateral review of the conviction (as distinguished from
motions seeking other procedural relief) were pending in the
state courts prior to the constructive filing date of the
amended or corrected judgments of conviction have been filed
in the state district court at any time before the filing of
the federal petition.
the federal petition is dated January 29, 2017, copies of
mailing indicia attached with a cover letter dated March 2,
2017, reflects that: (a) the petition initially was mailed on
February 18, 2017, addressed incorrectly to “Mr. Bruce
R. Thompson;” and (b) the petition was re-mailed on or
about March 2, 2017. The petition was received and filed by
the Clerk of Court on March 6, 2017.
Base Calculation of the Limitation Period
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