United States District Court, D. Nevada
MARKELL S. JONES, Petitioner,
RENEE BAKER, et al., Respondents.
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
court directed Petitioner to show cause why the Court should
not dismiss this action as untimely. Petitioner has filed a
Motion to Show Cause (ECF No. 8). Petitioner does not
persuade the Court, and the Court will dismiss the action as
argument is that he should receive equitable tolling because
the prisons' law libraries require an exact citation to
retrieve a document. It was not until 2015, Petitioner
argues, that he met another inmate who informed him that he
was being held in prison for something that is not a crime.
The records available to Petitioner do not support
‘petitioner' is ‘entitled to equitable
tolling' only if he shows ‘(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,
560 U.S. 631, 649 (2010) (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 417 (2005)). Here, Petitioner
has not demonstrated entitlement to equitable tolling.
claim is based upon an interpretation of NRS §
193.165(3), which he quotes in the petition. Petitioner
attached to the petition a copy of the judgment of
conviction, which in turn cites NRS § 193.165. The
judgment of conviction was entered on June 4, 2007. That
would be the latest possible date that Petitioner could have
learned about Section 193.165. Even if the prisons' law
libraries work in the manner that Petitioner argues, he could
have obtained a copy of Section 193.165 at any time and
started his research.
argument does not address the time that he spent on his
untimely state habeas corpus petition. That petition was
pending was for more than a year, from November 23, 2015,
when he filed the petition, through April 19, 2017, when the
Nevada Court of Appeals affirmed the denial of the petition
as untimely. Statutory tolling under 28 U.S.C. §
2244(d)(2) was not available because the petition was
untimely. Pace, 544 U.S. at 417. Petitioner's
argument for equitable tolling based upon the exact-citation
retrieval system in the prisons' libraries does not apply
during the time that the state petition was pending because
the very existence of that petition shows that Petitioner was
able to litigate, and thus he could have filed a parallel,
protective proceeding in this court. Id. at 416-17.
response, Petitioner might argue that he did not know that he
had a problem with the timeliness of his state habeas corpus
petition, that he did not know he would receive no tolling
for the time that the state habeas corpus petition was
pending, and thus he should receive equitable tolling for
that time. Such an argument would be unpersuasive. Question
19 on the required state petition form asked Petitioner
whether he filed the petition more than one year after entry
of the judgment of conviction or after the decision on direct
appeal. See NRS § 34.735.
“Application of the statutory procedural default rules
to postconviction habeas petitions is mandatory.”
State v. Dist. Ct. (Riker), 112 P.3d 1070, 1074
(Nev. 2005). Nevada's one-year statute of limitation is
not an affirmative defense that the respondents must raise.
Rather, in the state habeas corpus petition itself the
petitioner has the burden of pleading and proving facts to
demonstrate good cause to excuse the delay. State v.
Haberstroh, 69 P.3d 676, 681 (Nev. 2003). Petitioner
knew no later than the date he filed his state habeas corpus
petition, November 23, 2015, that he had a problem with the
timeliness of that state petition. He could have filed a
parallel, protective federal habeas corpus petition in this
court, but he did not. See Pace, 544 U.S. at 416-17.
Under these circumstances, the court would not find that
Petitioner acted with the required diligence for equitable
appeal the denial of a petition for a writ of habeas corpus,
Petitioner must obtain a certificate of appealability, after
making a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. §2253(c).
Where a district court has rejected the constitutional claims
on the merits, the showing required to satisfy §2253(c)
is straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong.
The issue becomes somewhat more complicated where, as here,
the district court dismisses the petition based on procedural
grounds. We hold as follows: When the district court denies a
habeas petition on procedural grounds without reaching the
prisoner's underlying constitutional claim, a COA should
issue when the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see
also James v. Giles, 221 F.3d 1074, 1077-79 (9th Cir.
pleaded guilty to, and was convicted of, conspiracy to commit
robbery (Count 4) and robbery with the use of a deadly weapon
(Count 5). The sentence for Count 4 was a minimum term of 28
months and a maximum term of 72 months. The sentence for
Count 5 was a minimum term of 72 months and a maximum term of
180 months for the robbery, plus a consecutive minimum term
of 72 months and maximum term of 180 months for the use of a
deadly weapon. The sentence for Count 4 ran concurrent with
the first sentence for Count 5. The first sentence for Count
5 has expired. Petitioner now is serving the deadly-weapon
jurists of reason would find it debatable that the petition
states a valid claim of the denial of a constitutional right.
Petitioner claims that he is serving a sentence for a non-
crime. He bases this claim upon a tortured misinterpretation
of NRS § 193.165(2), which states: “This section
does not create any separate offense but provides an
additional penalty for the primary offense, whose imposition
is contingent upon the finding of the prescribed fact.”
After an amendment in 2007, this is now NRS §
193.165(3), but the provision itself has not changed.
Petitioner argues that once his sentence for robbery expired,
he is now in prison for “use of a deadly weapon,
” which, as Section 193.165(2) states, is not a
separate offense. Petitioner's argument requires the
court to read, “This section does not create any
separate offense, ” and stop right there without
reading the rest of the sentence. Of course, the rest of the
sentence, particularly the clause about providing an
additional penalty, is the important part. Petitioner was
convicted of robbery with the use of a deadly weapon, for
which he received an additional penalty under Section
193.165. That additional penalty does not offend the
Constitution. Missouri v. Hunter, 459 U.S. 359, 366
(1983). Consequently, Petitioner does not state a valid claim
of the denial of a constitutional right.
jurists also would not find debatable that the court was
correct in its procedural ruling. By the time he was
convicted, Petitioner had all the tools he needed to discover
his claim, or, more accurately, to discover that he had no
claim. Nothing prevented ...