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Arpino v. Baca

United States District Court, D. Nevada

March 26, 2018

JOHN FRANCIS ARPINO, Petitioner,
v.
ISIDRO BACA, et al., Respondents.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE.

         This action comes before the Court on petitioner's application to proceed in forma pauperis (ECF No. 1) and for initial screening review pursuant to Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254.[1]

         The Court finds petitioner cannot pay the filing fee. The application to proceed in forma pauperis will therefore be granted. Following review of the petition, the Court determines that the petition must be dismissed.

         First, petitioner filed his petition on the form for a petition of writ of habeas corpus pursuant to 28 U.S.C. § 2241. However, petitioner is currently in state custody pursuant to a judgment of conviction arising out of No. CR13-0259 in the Second Judicial District Court of the State of Nevada. (See ECF No. 1-1 at 2.)[2] It is that conviction he challenges as “illegal” in this case. This action is therefore governed by 28 U.S.C. § 2254, and the petition must be filed on the § 2254 form.

         Second, the petition attacks the state courts' resolution of a “Motion to Correct Illegal Judgment” filed by petitioner on March 1, 2017. To the extent petitioner is seeking this Court's review of the Nevada Court of Appeals' decision in that appeal, the Court lacks any such appellate jurisdiction over the state supreme court. See, e.g., Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Bianchi v. Rylaarsdam, 334 F.3d 895, 898 (9th Cir. 2003).

         Third, to the extent petitioner is asserting that his state court conviction is in violation of the Constitution, laws or treaties of the United States, it is highly likely the petition is untimely.

         The one-year limitation period for § 2254 petitions 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.[3] 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). Petitions can also be subject to equitable tolling in some circumstances. See Holland v. Florida, 560 U.S. 631, 645 (2010). Neither a properly filed federal habeas petition nor an untimely state habeas petition tolls the limitations period, however. Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005) (holding that an untimely state habeas petition is not “properly filed” and thus does not toll the limitation period); Duncan v. Walker, 533 U.S. 167, 172 (2001) (holding that “a properly filed federal habeas petition does not toll the limitation period”).

         The judgment of conviction in No. CR13-0259 was entered on July 5, 2013.[4]The Nevada Supreme Court affirmed on December 13, 2013. Petitioner's conviction thus became final on March 13, 2014 - the deadline for filing a petition for writ of certiorari with the United States Supreme Court. The federal period under § 2244(d) therefore began to run the next day. Absent tolling or another basis for delayed accrual, the limitations period expired on March 13, 2015.[5] The petition in this case, submitted for filing on or after March 8, 2018 (see ECF No. 1-1 at 24), is thus apparently untimely.

         While petitioner filed a multitude of petitions, motions and appeals in both the state trial court and the Nevada Supreme Court, it is questionable whether and to what extent the time during which these proceedings were pending is subject to statutory tolling. But even if all of petitioner's pleadings statutorily tolled the limitations period, the petition is still untimely absent another basis for tolling.[6]

         The dockets of the state courts reflect that between October 23, 2014, when the Nevada Supreme Court issued notice in lieu of remittitur on its denial of petitioner's “Petition for First Amendment; Petition for Writ of Prohibition” in No. 65907, [7] and March 31, 2015, when petitioner filed a “Motion to Correct Illegal Sentence” in the trial court, petitioner had no motions, appeals, or petitions seeking postconviction or other collateral relief pending in the state courts. During that time period of more than five months, the federal limitations period appeared to be running. The records further reflect that no potential tolling applications were pending between May 31, 2016, when the Nevada Supreme Court issued remittitur in petitioner's appeal in No. 69791, and March 1, 2017, when petitioner filed another “Motion to Correct Illegal Sentence” in the trial court. During that time period of nine months, the federal limitations period again appeared to be running. Finally, the Nevada Supreme Court issued remittitur on its decision in petitioner's latest appeal related to his conviction on January 9, 2018. Petitioner did not submit his federal petition for filing any earlier than March 8, 2018. During this nearly two-month period, the federal limitations period was also running.

         All told, the limitations period ran for at least sixteen months before petitioner filed the instant petition. Thus, even assuming all of the various pleadings filed by petitioner in the state court operated to toll the statute of limitations (which the Court is in no way concluding they did), the instant petition would be untimely unless petitioner could establish a basis for otherwise tolling the limitations period. Normally, the Court would order the petitioner to show cause why the petition should not be dismissed as untimely. However, it will not do so in this case. Regardless of the petition's timeliness, it must be dismissed as it is frivolous and fails in several respects to state any cognizable habeas claim.[8]

         In Ground One, petitioner asserts that Washoe County District Attorneys, including Dick Gammick who was D.A. when petitioner was charged and convicted, and Christopher Hicks, the current D.A., failed to “perfect” or “validate” their public offices because they did not post a bond with two sureties as required by Nevada statute. Petitioner also asserts that Gammick did not post another bond after he was re-elected to office in 2010. (ECF No. 1-1 at 4.) Petitioner argues that these failures meant that the D.A.s were not validly in office and thus they and their appointees lacked the authority to prosecute anyone, including petitioner.

         Substantially the same allegations were considered and discussed by this Court in the context of a civil rights complaint brought by petitioner in 2014. See Arpino v. Sandoval, No. 3:14-cv-00481-MMD-WGC (ECF No. 18) (D. Nev. Dec. 12, 2014) (“Arpino”). In that case, the Court considered all the statutes cited by the petitioner and found that none provided that a failure of the D.A. to post an appropriate bond stripped the D.A. of his or her authority or violated the constitutional rights of those prosecuted by the D.A. (Id.) (discussing NRS §§ 252.030, 282.010, 252.020, 282.120 & 282.200).) The Court thus entered an order dismissing the complaint on the grounds that it failed to state any cognizable civil rights violation. (Id.) It further certified that the petitioner's appeal thereof was frivolous or not taken in good faith. (Id., ECF No..) The Ninth Circuit also found the petitioner's appeal of the Court's order to be frivolous. (Id., ECF No. 29.)

         The Court agrees with its prior analysis in Arpino, and its conclusion is not changed by the additional statutes ...


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