Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gaines v. Neven

United States District Court, D. Nevada

March 19, 2018

CORNELIUS A. GAINES, III, Petitioner,
v.
D.W. NEVEN, et al., Respondents.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.

         This 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).

         I. BACKGROUND

         Petitioner 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, 2014).[1]

         The original judgment of conviction was entered on November 18, 2011, in No. 07C233567 in the state district court.

         The 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.

         On June 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 order.

         On 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.

         No 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 federal petition.

         No amended or corrected judgments of conviction have been filed in the state district court at any time before the filing of the federal petition.

         While 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.

         II. DISCUSSION

         A. Base Calculation of the Limitation Period

         Under 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.