United States District Court, D. Nevada
P. GORDON UNITED STATES DISTRICT JUDGE
habeas matter under 28 U.S.C. § 2254 comes before the
Court on petitioner's renewed application (ECF No. 4) to
proceed in forma pauperis and for preliminary review
pursuant to Rule 4 of the Rules Governing Section 2254 Cases
in the United States District Courts.
Court finds that petitioner cannot pay the filing fee. The
application to proceed in forma pauperis (ECF No. 4)
will therefore be granted, and petitioner will not be
required to pay the filing fee.
to the petition, the Court notes first that petitioner filed
his original petition on April 3, 2018, and an amended
petition on May 3, 2018. (See ECF No. 5). Following
review, the Court finds that petitioner must show cause why
this action should not be dismissed as untimely as both
petitions appear to have been filed after the expiration of
the one-year statute of limitations.
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.” The limitations period is tolled while
“a properly filed application for State post-conviction
or other collateral review” is pending. Id.
in this case challenges his state court judgment of
conviction entered in Eighth Judicial District Court Case
Number C-12-284324-1. The judgment of conviction was entered on
October 7, 2013. Petitioner filed a direct appeal, which was
decided by the Nevada Supreme Court on June 11,
2014. There is no indication that petitioner
filed a petition for writ of certiorari with the United
States Supreme Court. Accordingly, petitioner's
conviction became final when the time for filing a petition
for certiorari expired, on September 9, 2014. Absent a basis
for tolling or delayed accrual, the federal limitation period
thus began to run the following day, September 10, 2014.
1, 2015, petitioner filed a state court petition for writ of
habeas corpus. The trial court denied relief, and the Nevada
Supreme Court affirmed, issuing remittitur on August 8,
2017. From the records the Court has been able
to review, the petition appears to have been a properly filed
State petition for post-conviction or other collateral
relief, and thus during the time in which it was pending the
federal limitations period was tolled. Assuming the period
was tolled during the pendency of petitioner's state
habeas petition, the limitations period began to run again on
August 9, 2017. As 234 days elapsed before petitioner filed
his state court petition, the federal limitations period
expired 131 days after August 9, 2017, or on December 18,
2017. Petitioner's petition, filed on April
3, 2018, is thus apparently untimely. Petitioner therefore
must show cause why the petition should not be dismissed with
prejudice as time-barred under § 2244(d).
regard, petitioner is informed that the one-year limitation
period may be equitably tolled. Equitable tolling is
appropriate only if the petitioner can show that: (1) he has
been pursuing his rights diligently, and (2) some
extraordinary circumstance stood in his way and prevented
timely filing. Holland v. Florida, 560 U.S. 631, 649
(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 accordingly 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).
further is informed that, under certain circumstances, the
one-year limitation period may begin running on a later date
or may be statutorily tolled. See 28 U.S.C. §
2244(d)(1)(B), (C), (D) & (d)(2).
further is informed that if he seeks to avoid application of
the limitation period based upon a claim of actual innocence,
he must come forward with new reliable evidence tending to
establish actual factual innocence, i.e., tending to
establish that no juror acting reasonably would have found
him guilty beyond a reasonable doubt. See McQuiggin v.
Perkins, 569 U.S. 383 (2013); House v. Bell,
547 U.S. 518 (2006); Lee v. Lampert, 653 F.3d 929
(9th Cir. 2011) (en banc). In this regard,
“‘actual innocence' means factual innocence,
not mere legal insufficiency.” Bousley v. United
States, 523 U.S. 624, 623 (1998).
the amended petition in this case adds several claims that
were not contained in the original petition. Petitioner is
informed that to the extent any of the claims in the amended
petition do not relate back to the original petition, he must
show that the May 3, 2018 petition is itself timely - not
just the April 3, 2018 petition - in order to pursue those
claims. If petitioner succeeds in showing only that the April
3, 2018, petition is timely, he will not be able to pursue
any claims in the amended petition unless they relate back to
the April 3, 2018, petition.
THEREFORE IS ORDERED that petitioner's application (ECF
No. 4) to proceed in forma pauperis is GRANTED.
Petitioner shall not be required to pay the filing fee.
FURTHER ORDERED that the Clerk of the Court shall file the
petition (ECF No. 1-1).
FURTHER ORDERED that the Court defers consideration of any
and all remaining deficiencies in the papers presented until
after it has determined whether the action is timely in the
first instance and will defer ruling on petitioner's
motion for appointment of counsel until after he has
responded to the Court's show cause order. Petitioner