United States District Court, D. Nevada
RICHARD F. BOULWARE, II, UNITED STATES DISTRICT JUDGE.
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
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.
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.)
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
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.)
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.)
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.)
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.
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.
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.)
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.)
of the Original Petition
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.
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.
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). 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.
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.
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),  includes the following seemingly
For AEDPA 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.
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.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 .
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 ...