United States District Court, D. Nevada
SAMUEL G. COOPER, Petitioner,
STATE OF NEVADA, Respondents.
a habeas corpus proceeding under 28 U.S.C. § 2254.
Petitioner, Samuel G. Cooper, has paid the filing fee of
$5.00 required to initiate this action, so the clerk shall be
directed to file the petition herein.
reviewing the petition under Rule 4 of the Rules Governing
Section 2254 Cases, the court notes the conviction and
sentence Cooper seeks to challenge was entered in 1987. The
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
established a one-year statute of limitations on the filing
of federal habeas corpus petitions. 28 U.S.C. §
2244(d)(1). For petitioners like Cooper, whose convictions
became final before the passage of the AEDPA, the one-year
limitations period began running on April 25, 1996, the day
after the statute's effective date, and expired on April
24, 1997, unless it was tolled. See Patterson v.
Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).
to Herbst v. Cook, 260 F.3d 1039 (9th
Cir. 2001), the court sua sponte raises the question
of whether the petition is time-barred for failure to file
the petition within in § 2244(d)(1)'s one-year
limitation period. Based on the information provided by
Cooper with his initial filing, it appears that his habeas
petition has been filed well beyond the limitation period.
Thus, this court shall require Cooper to show cause in
writing why his petition should not be dismissed with
prejudice as time-barred.
certain circumstances, the one-year limitation period may
begin running on a later date. See 28 U.S.C. §
2244(d)(1)(B-D). Under 28 U.S.C. § 2244(d)(2), the
federal limitation period is statutorily tolled during the
pendency of a properly filed application for state
post-conviction relief or for other state collateral review.
However, if a state court determines the collateral challenge
was not timely filed under state law, the collateral
challenge is not “properly filed” for purposes of
28 U.S.C. § 2244(d)(2). Pace v. DiGuglielmo,
544 U.S. 408, 417 (2005). In other words, “[w]hen a
postconviction petition is untimely under state law,
‘that [is] the end of the matter' for purposes of
§ 2244(d)(2).” Id. at 414 (citation
omitted). Also, once a state post-conviction proceeding
pursuant a properly filed application has concluded, the
statutory time period resumes running.
addition, the one-year limitation period may be equitably
tolled. Equitable tolling is appropriate only if the
petitioner can show: (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing. Holland v.
Florida, 130 S.Ct. 2549, 1085 (2010). Equitable tolling
is "unavailable in most cases, " Miles v.
Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999),
and "the threshold necessary to trigger equitable
tolling is very high, lest the exceptions swallow the rule,
" Miranda v. Castro, 292 F.3d 1063, 1066
(9th Cir. 2002) (quoting United States v.
Marcello, 212 F.3d 1005, 1010 (7th Cir.
2000)). The petitioner ultimately has the burden of proof on
this “extraordinary exclusion.” Miranda,
292 F.3d at 1065. He must demonstrate a causal relationship
between the extraordinary circumstance and the lateness of
his filing. E.g., Spitsyn v. Moore, 345
F.3d 796, 799 (9th Cir. 2003). Accord Bryant
v. Arizona Attorney General, 499 F.3d 1056, 1061
(9th Cir. 2007).
is advised that the equitable rule in Martinez v.
Ryan, 566 U.S. 1 (2012), “applies only to the
issue of cause to excuse the procedural default of an
ineffective assistance of trial counsel claim that occurred
in a state collateral proceeding” and “has no
application to the operation or tolling of the § 2244(d)
statute of limitations” for filing federal habeas
petitions. Chavez v. Sec'y, Fla. Dep't of
Corr., 742 F.3d 940, 943, 945 (11th Cir. 2014) (citing
Arthur v. Thomas, 739 F.3d 611, 629-631 (11th Cir.
2014)). See Manning v. Epps, 688 F.3d 177, 189 (5th
Cir. 2012) (Martinez does not extend to the statute
of limitations period under 28 U.S.C. § 2244(d)(1)(B)).
IS THEREFORE ORDERED that the clerk shall
file the petitioner's petition for writ
of habeas corpus.
FURTHER IS ORDERED that, within thirty (30)
days of entry of this order, petitioner shall
show cause in writing why the petition
should not be dismissed with prejudice as time-barred. If
petitioner does not timely respond to this order, the
petition will be dismissed with prejudice as time-barred
without further advance notice. If petitioner responds but
fails to show - with specific, detailed and competent
evidence - that the petition is timely, the action will be
dismissed with prejudice.
FURTHER IS ORDERED that all assertions of fact made
by petitioner in response to this show-cause order must be
detailed, must be specific as to time and place, and must be
supported by competent evidence. The court will not consider
any assertions of fact that are not specific as to time and
place, that are not made pursuant to a declaration under
penalty of perjury based upon personal knowledge, and/or that
are not supported by competent evidence filed by petitioner
in the federal record. Petitioner must attach copies of all
materials upon which he bases his argument that the petition
should not be dismissed as untimely. Unsupported assertions
of fact will be disregarded.
extension of time will be granted to respond to this order
except in the most compelling of circumstances.
 This order does not explicitly or
implicitly hold that the petition otherwise is free of
deficiencies. For example, Cooper has provided contradictory
and confusing information with respect to prior federal
habeas litigation challenging his conviction. If this is a
second or successive federal petition, this court is without
jurisdiction to entertain the petition unless Cooper ...