United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
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
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.
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.) 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.
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).
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.
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. 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”).
judgment of conviction in No. CR13-0259 was entered on July
5, 2013.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. 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.
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
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,  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.
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.
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,
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.)
Court agrees with its prior analysis in Arpino, and
its conclusion is not changed by the additional statutes