United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.
pro se petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 (ECF No. 7) comes before the Court
for consideration on the merits. Respondents have answered
the Petition (ECF No. 9), and Petitioner has replied (ECF No.
13). Following an order from this Court, Respondents filed a
supplemental answer (ECF No. 24), and Petitioner filed a
supplemental reply (ECF No. 26).
a state court prisoner who is serving three life sentences
with eligibility for parole after five years, challenges the
Nevada State Parole Board's (“Board”)
decision to deny him parole. (ECF No. 7.)
1991, Petitioner pleaded guilty to three counts of sexual
assault on boys between the ages of seven and twelve. (ECF
Nos. 10-1, 10-2, 10-3.) Petitioner was sentenced in 1992 to three
life sentences with eligibility for parole after five years;
two sentences ran concurrently while the third ran
consecutively to the first two. (ECF No. 10-4.) Petitioner
asserts that he received parole on the first two sentences
after serving fourteen years. (ECF No. 7 at 4-5.) He has been
denied parole on his current sentence several times,
including in 2012, 2014, and 2016. (See ECF No.
10-5, ECF No. 10-7; ECF No. 13 at 2.) Petitioner submitted
letters to the Nevada Board of Parole Commissioners seeking
reconsideration of the 2012 and 2014 decisions, which
requests were denied. (See ECF No. 7 at 23,
filed a state habeas petition on February 19, 2015. (ECF No.
10-9.) The state court denied the petition on the grounds
that Petitioner's claims were not cognizable on habeas
review and on the independent ground that none had merit.
(See ECF No. 10-12.) The Nevada Court of Appeals
affirmed. (ECF No. 10-14 at 2-3.)
dispatched the instant federal petition for writ of habeas
corpus on December 31, 2015. (ECF No. 7 at 1.) Respondents
have answered, arguing that the Petition is untimely and
actions challenging a denial of parole, the limitations
period for a § 2254 petition begins to run from
“the date on which the factual predicate of the claim
or claims presented could have been discovered through the
exercise of due diligence.” See Redd v.
McGrath, 343 F.3d 1077, 1084 (9th Cir. 2003). In this
case, Petitioner learned of the factual predicate of his
claim when he received notice that the Board was not
considering his request for reconsideration of the decision
to deny him parole. It appears that Petitioner received notice
of the Board's refusal to reconsider in or around
mid-to-late November 2014. (See ECF No. 7 at 35
(letter indicating that the Board declined to consider
Petitioner's letter request regarding the 2014 denial).)
limitations period is tolled while “a properly filed
application for State post-conviction or other collateral
review” is pending. 28 U.S.C. § 2244(d)(2).
Petitioner filed a state habeas petition on February 19,
2015, when no more than five months of the federal
limitations period had elapsed, and proceedings remained
pending on the petition until January 15, 2016, by which
point Petitioner had filed the instant federal habeas
petition.Thus, if the state habeas petition
constitutes a “properly filed application for State
post-conviction or other collateral review, ” the
Petition in this case is timely.
argue that the Petition was not “properly filed”
because it stated no claims cognizable in a post-conviction
petition for writ of habeas corpus pursuant to NRS §
34.724 and the state courts denied relief on that ground.
(ECF No. 10-14.) Respondents argue that because the Petition
did not comply with the requirements for a habeas petition
under NRS § 34.724, it was not “properly
petition is properly filed “when its delivery and
acceptance are in compliance with the applicable laws and
rules governing filings.” Artuz v. Bennett,
531 U.S. 4, 8 (2000). Such rules typically include “the
form of the document, the time limits upon its delivery, the
court and office in which it must be lodged, and the
requisite filing fee” and can include
“preconditions imposed on particular abusive filers . .
. or on all filers generally . . . .” Id. at
8-9. “[I]n common usage, the question whether an
application has been ‘properly filed' is quite
separate from the question whether the claims contained in
the application are meritorious and free of procedural
bar.” Id. at 9.
arguments and showing made, the Court is not persuaded that
the Petition was not “properly filed.” The state
courts accepted and filed the petition and, in addition to
denying it on the merits, also dismissed it as failing to
state a claim for relief under NRS § 34.720. Stating a
cognizable claim is more a condition for obtaining relief
than it is a condition for filing. See Ramirez v.
Yates, 571 F.3d 993, 999 (9th Cir. 2009) (holding that
petition for writ of coram nobis was “properly
filed” because state requirement that petitioner show
due diligence was a condition to obtaining relief, not a
condition to filing the petition). The Court therefore
concludes that the state habeas petition was “properly
filed, ” and thus the limitations period was tolled
from February 19, 2015, when Petitioner filed his state
habeas petition, until the time Petitioner filed the instant
Petition. The Petition is not therefore untimely. It is,
however, without merit.
U.S.C. § 2254(d) provides the legal standards for this
court's consideration of the merits of the Petition in
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
“modified a federal habeas court's role in
reviewing state prisoner applications in order to prevent
federal habeas ‘retrials' and to ensure that
state-court convictions are given effect to the extent
possible under law.” Bell v. Cone, 535 U.S.
685, 693-694 (2002). This court's ability to grant a writ
is limited to cases where “there is no possibility
fairminded jurists could disagree that the state court's
decision conflicts with [Supreme Court] precedents.”
Harrington v. Richter, 562 U.S. 86, 102 (2011). The
Supreme Court has emphasized “that even a strong case
for relief does not mean the state court's contrary
conclusion was unreasonable.” Id. (citing
Lockyer v. Andrade, 538 U.S. 63, 75 (2003)); see
also Cullen v. Pinholster, 563 U.S. 170, 181 (2011)
(internal quotation marks and citations omitted) (describing
the AEDPA standard as “a difficult to meet and highly
deferential standard for evaluating state-court rulings,
which demands that state-court decisions be given the benefit
of the doubt”).
court decision is contrary to clearly established Supreme
Court precedent, within the meaning of 28 U.S.C. § 2254,
“if the state court applies a rule that contradicts the
governing law set forth in [the Supreme Court's]
cases” or “if the state court confronts a set of
facts that are materially indistinguishable from a decision
of [the Supreme Court] and nevertheless arrives at a result
different from [the Supreme Court's] precedent.”
Andrade, 538 U.S. 63 (first quoting Williams v.
Taylor, 529 U.S. 362, 405-06 (2000); then citing
Bell v. Cone, 535 U.S. 685, 694 (2002)).
court decision is an unreasonable application of clearly
established Supreme Court precedent, within the meaning of 28
U.S.C. § 2254(d), “if the state court identifies
the correct governing legal principle from [the Supreme
Court's] decisions but unreasonably applies that
principle to the facts of the prisoner's case.”
Andrade, 538 U.S. at 74 (quoting Williams,
529 U.S. at 413). The “unreasonable application”
clause requires the state court decision to be more than
incorrect or erroneous; the state court's application of
clearly established law must be objectively unreasonable.
Id. (quoting Williams, 529 U.S. at 409).
extent that the state court's factual findings are
challenged, the “unreasonable determination of
fact” clause of § 2254(d)(2) controls on federal
habeas review. E.g., Lambert v. Blodgett,
393 F.3d 943, 972 (9th Cir. 2004). This clause requires that
the federal courts “must be particularly
deferential” to state court factual determinations.
Id. The governing standard is not satisfied by a
showing merely that the state court finding was
“clearly erroneous.” Id. at 973. Rather,
AEDPA requires substantially more deference:
[I]n concluding that a state-court finding is unsupported by
substantial evidence in the state-court record, it is not
enough that we would reverse in similar circumstances if this
were an appeal from a district court decision. Rather, we
must be convinced that an appellate panel, applying the
normal standards of appellate review, could not reasonably
conclude that the finding is supported by the record.
Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.
2004); see also Lambert, 393 F.3d at 972.
28 U.S.C. § 2254(e)(1), state court factual findings are
presumed to be correct unless rebutted by clear and
convincing evidence. The petitioner bears the burden of
proving by a preponderance of the evidence that he is
entitled to habeas relief. Cullen, 563 U.S. at 181.
state courts reached the merits of most of Petitioner's
claims, their decisions on those claims are entitled to
deference under AEDPA and may not be disturbed unless they
were ones “with which no fairminded jurist ...