United States District Court, D. Nevada
R. HICKS, UNITED STATES DISTRICT JUDGE
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).
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
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.
did not file a direct appeal, and the time to do so expired
on January 26, 2005.
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.
federal petition in this matter was dispatched for filing
approximately a decade later, on or after January 25, 2015.
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.)
Calculation of the Federal 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
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
Alternative Accrual Date
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.
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
Ninth Circuit decisions relied upon by petitioner do not
establish to the contrary.
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
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
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
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
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
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).
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
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. 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.
presents no further argument seeking to establish a basis for