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Posey v. Neven

United States District Court, D. Nevada

March 20, 2019

ANTHONY MERITT POSEY, Petitioner,
v.
DWIGHT NEVEN, et al., Respondents.

          ORDER

          RICHARD F. BOULWARE, II, UNITED STATES DISTRICT JUDGE.

         This habeas matter under 28 U.S.C. § 2254 comes before the Court on respondents' motion to dismiss (ECF No. 24). Respondents contend that the original petition is untimely and further that Grounds 1 and 2 of the first amended petition do not relate back to the original petition, if otherwise timely.

         Background

         Petitioner Anthony Posey challenges his Nevada state conviction, pursuant to a guilty plea, of two counts of abuse and/or neglect of an older person resulting in substantial bodily or mental harm or death.

         Posey pled guilty specifically to Counts 4 and 7 in the indictment, and the remaining counts were dismissed pursuant to the plea agreement. (See ECF Nos. 25-31 & 25-32.)

         At the sentencing, the presiding judge sentenced Posey to six to fifteen years on Count 4 and six to fifteen years on Count 7. The judge clearly stated that the sentence on Count 7 would run consecutive to the sentence on Count 4. (ECF No. 25-33 at 45-46.)

         The original judgment of conviction, however, instead stated in error “Count 2 to run CONSECUTIVE to Count 1” - in a situation where Posey had not pled guilty to those counts, had not been convicted on those counts, and had not been sentenced on those counts, consecutively or otherwise. (ECF No. 25-34 at 3.)

         The original judgment of conviction was filed on August 23, 2012; and Posey filed a timely notice of appeal on September 19, 2012. (ECF Nos. 25-34 & 26-1.)

         A month later, while the direct appeal still was pending, an amended judgment of conviction was filed on October 18, 2012. The amended judgment of conviction corrected the error in the original judgment to read instead “Count 7 to run CONSECUTIVE to Count 4.” (ECF No. 26-5 at 3.)

         Posey did not file a notice of appeal seeking to separately appeal the amended judgment. The time to do so expired on Monday, November 19, 2012.

         The state supreme court entered an order of affirmance on direct appeal on May 15, 2013. (ECF No. 26-14.) The time to seek certiorari review in the United States Supreme Court expired on August 13, 2013.

         After 274 days had elapsed, on May 15, 2014, petitioner filed a timely state postconviction petition. Proceedings were pending on this petition in the state district court and thereafter the state supreme court through the issuance of the remittitur concluded the postconviction appeal on August 19, 2015. (ECF Nos. 26-16 & 26-42.)

         Posey mailed the federal petition to the Clerk of this Court for filing on or about July 29, 2015, prior to the issuance of the remittitur on the state post-conviction appeal. (See ECF No. 11 at 1.)

         Discussion

         Timeliness of the Original Petition

         The present motion presents the issue of whether, when a state court judgment of conviction is amended during the pendency of a direct appeal from the original judgment of conviction, the federal limitation period starts running after the completion of the ongoing direct appeal proceedings or instead after the expiration of the time to appeal the amended judgment, if no separate appeal is taken from the later judgment. The federal petition clearly was timely if the federal limitation period did not begin running until after the August 13, 2013, expiration of the time to seek certiorari review of the order of affirmance on direct appeal. Respondents contend that the federal petition instead was untimely because the limitation period began running after the expiration of the time to appeal the amended judgment of conviction, on November 19, 2012. Respondents maintain that the limitation period therefore expired one year later, on November 19, 2013, before Posey sought either state or federal postconviction review.

         In Smith v. Williams, 871 F.3d 684 (9th Cir. 2017), the Ninth Circuit held that the one-year federal limitation period under 28 U.S.C. § 2244(d) runs from the date of finality of the judgment of conviction under which the petitioner then is being held. The court accordingly held in that case that the limitation period therefore ran from the date of finality of the amended judgment of conviction under which the petitioner then was held rather than from the date of finality of the original judgment of conviction.

         The Court notes, however, that Smith was decided in a procedural context in which the amended judgment of conviction in question was filed years after completion of the direct appeal proceedings filed following the original judgment of conviction. See 871 F.3d at 685-86. Within that procedurally simple context, the decision speaks in unqualified terms as to which judgment - the original judgment or amended judgment - is “the judgment” for purposes of applying the statutory language of § 2244(d).[1] Under the unqualified language in the opinion, the matter of when the one-year period begins to run under § 2244(d)(1) appears to turn solely upon which judgment the petitioner then was being held under when he filed his federal petition. Under the panel's stated rationale, that judgment is “the judgment” for purposes of applying § 2244(d)(1), without qualification. See 871 F.3d at 686-88.

         Petitioner contends that Smith does not apply to this case because the amended judgment in this case corrected only a clerical error in the original judgment.

         Whether such a change leads to a new intervening judgment for purposes of the federal limitation period is subject to debate under current caselaw. On the one hand, the Ninth Circuit decision in Gonzalez v. Sherman, 873 F.3d 763 (9th Cir. 2017), [2] includes the following seemingly categorical language:

For AEDPA[3] purposes, it does not matter whether the error in the judgment was minor or major. What matters is whether there is an amended judgment. Even if the judgment is not substantively changed, it constitutes a new, intervening judgment if the earlier judgment is amended or even if it is reissued as an amended judgment as in Magwood [v. Patterson, 561 U.S. 320 (2010)]. Here, the judgment, because it contains the new, correct provision of presentence credits, is an amended judgment.

873 F.3d at 773 n.5. On the other hand, the same Gonzalez decision engages in an extensive analysis under California state law to determine whether the amended judgment would be a new judgment under state law, based upon, inter alia, a distinction - under that state's law - between correction of a “scrivener's error” in memorializing the oral pronouncement of the sentencing judge and a “rendering error” made by the court itself in pronouncing sentence. See 873 F.3d at 769-73.

         The Court concludes that it does not need to conduct an extensive analysis of such fine points under Nevada state law to resolve the overall timeliness issue in this case.[4]The Court instead concludes that the federal limitation period does not begin to run in this procedural context until after the conclusion of review on the then-pending direct appeal even if, arguendo, the amended judgment constituted a new intervening judgment for purposes of AEDPA .

         Even if the amended judgment became “the judgment” for purposes of applying § 2244(d)(1) under Smith, the pertinent question in the Court's view then becomes one of when that judgment “became final by the conclusion of direct review or the expiration of the time for seeking such review” for purposes of § 2244(d)(1)(A). Quite clearly, if the state appellate courts overturned the conviction and/or sentence on the pending direct appeal, the amended judgment would be vacated or modified to the same extent as the original judgment of conviction, without regard to whether the defendant also separately appealed the amended judgment as to some issue specific to that judgment. That is, clearly, the amended judgment would not stand following such a reversal on direct appeal simply because no separate appeal was ...


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