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Manley v. Filson

United States District Court, D. Nevada

March 29, 2018

CHARLES MANLEY, Petitioner,
v.
TIMOTHY FILSON, et al., Respondents.

          ORDER

          LARRY R. HICKS, UNITED STATES DISTRICT JUDGE

         This habeas matter under 28 U.S.C. § 2254 comes before the Court on, inter alia, a show-cause inquiry as to whether the petition is subject to dismissal as time-barred under 28 U.S.C. § 2244(d).

         Background

         Petitioner Charles Manley challenges his adjudication and sentencing as a habitual criminal on his Nevada state conviction, pursuant to a guilty plea, of burglary while in possession of a firearm.

         A judgment of conviction was filed on December 27, 2004, in No. C204662 in the state district court. (ECF No. 18-5; Exhibit 4.) No. amended or corrected judgments of conviction were filed in the case thereafter.[1]

         Petitioner did not file a direct appeal, and the time to do so expired on January 26, 2005.

         Petitioner filed no state proceedings seeking post-conviction or other collateral review within a year of January 26, 2005. To the extent that petitioner relies upon state proceedings filed years thereafter as rendering his federal petition timely, the Court discusses those proceedings infra.

         The federal petition in this matter was dispatched for filing approximately a decade later, on or after January 25, 2015.

         In the single ground presented in the federal petition, Manley alleges that he was denied due process in violation of the Fifth and Fourteenth Amendments because he allegedly was improperly adjudicated and sentenced as a habitual criminal due to alleged circumstances and deficiencies existing as of the date of the September 30, 2004, sentencing proceeding. (See ECF No. 7, at 4-6.)[2]

         Discussion

         Base Calculation of the Federal 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 or the expiration of the time for seeking such direct review." In the present case, the judgment of conviction was filed on December 27, 2004; and the time period to appeal the judgment expired on January 26, 2005. The federal one-year limitation period therefore expired one year later on January 26, 2006, absent a basis for tolling or delayed accrual. No. state proceedings for post-conviction or other collateral review were filed prior to that date that would give rise to statutory tolling under 28 U.S.C. § 2244(d)(2). The federal petition was not constructively filed until on or about January 25, 2015, nine years after the federal limitation period putatively had expired. The federal petition therefore is untimely on its face, absent tolling or delayed accrual.

         Alleged Alternative Accrual Date

         Petitioner urges, however, that the federal one-year limitation period did not begin to run under § 2244(d)(1)(A) until after the October 22, 2014, issuance of the remittitur concluding appellate proceedings on a motion to modify sentence that he filed on November 21, 2013. (ECF Nos. 18-17 through 18-25, Exhibits 16-24; ECF No. 10, at 7.) Petitioner maintains that he can file a motion to modify sentence at any time under state law and that such a motion constitutes a “direct attack” of a conviction for purposes of § 2244(d)(1)(A) rather than a proceeding for collateral review.

         Petitioner is incorrect. Petitioner's December 27, 2004, judgment of conviction became final by the expiration of the time for seeking direct review when the time to file a direct appeal expired on January 26, 2005. The federal limitation period began running under § 2244(d)(1)(A) after that date; and absent a basis for tolling during the ensuing year, expired one year later on January 26, 2006. E.g., Randle v. Crawford, 604 F.3d 1047, 1050 & 1054-57 (9th Cir. 2009). The filing of a motion to modify sentence years after the time for seeking direct review already had expired as to the judgment is irrelevant, as is whether the state court motion was timely under state procedural law.

         The two Ninth Circuit decisions relied upon by petitioner do not establish to the contrary.

         In Collier v. Bayer, 408 F.3d 1279 (9th Cir. 2005), the Court of Appeals made no holding regarding the application of the federal limitation period in 28 U.S.C. § 2244(d). Collier instead concerned application of the procedural default doctrine based upon the Nevada state courts' application of the state procedural bar in N.R.S. 34.726(1), which establishes a one-year state limitations period for a timely state post-conviction petition.

         Collier held, inter alia, that a state law rule that a motion to correct illegal sentence did not constitute a tolling “appeal . . . from the judgment” under N.R.S. 34.726(1) did not constitute a clearly established state law rule at the relevant time for purposes of the federal procedural default doctrine. The panel held that the rule was not clearly established at the relevant time because a state supreme court decision holding that the tolling provisions of N.R.S. 34.726(1) applied only to a timely direct appeal was not decided until 1998, after Collier had filed his motion in 1997. See 408 F.3d at 1286-88. Even if this holding had any relevance to the application of the accrual rule in § 2244(d)(1)(A), it cannot benefit Manley. He filed his motion to modify sentence in 2013, fifteen years after the Supreme Court of Nevada clearly had held that only a timely direct appeal could constitute an “appeal . . . from the judgment” under N.R.S. 34.726(1). As Collier notes, after the state supreme court's 1998 holding, “the confusion present during Collier's appeal does not exist.” 408 F.3d at 1288. This holding in Collier thus clearly cannot benefit Manley.

         Petitioner further relies upon a footnote in Collier referring to state court authority suggesting that “[m]otions to correct an illegal sentence . . . are not collateral attacks” under Nevada state law. 408 F.3d at 1282 n.2.[3] In the cited state case, the state supreme court stated that motions to modify sentence “are direct attacks on the decision itself, rather than collateral, post-conviction attacks” for purposes of determining whether a particular state statute authorized an appeal from an order denying such a motion. See Passanisi v. State, 108 Nev. 318, 831 P.2d 1371, 1372-73 (1992), overruled on related grounds by, Harris v. State, 329 P.3d 619, 627 (Nev. 2014).

         State court characterizations of a proceeding as a “direct attack” or “collateral attack” for purposes of particular consequences under various state procedural rules are not necessarily determinative of whether the proceeding constitutes “direct review” for purposes of § 2244(d)(1)(A), which is a question of federal law. State law was material to the outcome in Collier because application of the procedural default doctrine turned upon whether the state law procedural rule was clearly established and thus adequate. See generally Collier, 408 F.3d at 1283-84. In contrast, nothing in Collier establishes that a motion to modify sentence filed years after the expiration of the time to file a direct appeal constitutes “direct review” for purposes of § 2244(d)(1)(A). Cf. Randle, 604 F.3d at 1054-55 (declining to construe an untimely appeal as a continuation of direct review under § 2244(d)(1)(A) because such a construction would allow manipulation of the date of finality of judgment indefinitely and essentially would eviscerate the federal statute of limitations).

         Collier thus does not support petitioner's position that a motion to modify sentence constitutes direct review with regard to finality of judgment for purposes of § 2244(d)(1)(A).

         Petitioner further relies upon Summers v. Schriro, 481 F.3d 710 (9th Cir. 2007). In Summers, under Arizona law, a defendant who pled guilty waived her right to a conventional direct appeal but retained the right to seek review of the conviction in an “of-right proceeding” under a state criminal procedure rule. Under Arizona case law, such a proceeding constituted “the functional equivalent of a direct appeal.” 481 F.3d at 713 (internal quotation marks and citation omitted). The Ninth Circuit accordingly held that the of-right proceeding - which took the place of a direct appeal opportunity that the defendant otherwise did not have - constituted “direct review” for purposes of § 2244(d)(1)(A).

         In contrast, no Nevada case has held that a motion to modify sentence is the functional equivalent specifically of a direct appeal, and the motion does not take the place of a direct appeal opportunity that the defendant otherwise does not have.[4] In the present case, for example, Manley could have pursued a direct appeal, but he did not. Accordingly, nothing in Summers establishes that a Nevada motion to modify sentence filed years after the expiration of the time to file a direct appeal constitutes “direct review” for purposes of § 2244(d)(1)(A). Summers simply is inapposite.

         Petitioner presents no further argument seeking to establish a basis for ...


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