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Minor v. Williams

United States District Court, D. Nevada

March 20, 2019

PHILIP MINOR, Petitioner,
v.
BRIAN WILLIAMS, et al., Respondents.

          ORDER

          RICHARD F. BOULWARE, II, UNITED STATES DISTRICT JUDGE

         This counseled habeas petition pursuant to 28 U.S.C. § 2254 comes before the Court on respondents' motion to dismiss (ECF No. 18). Petitioner has opposed (ECF No. 21), and respondents have replied (ECF No. 22).

         I. Background

         Petitioner in this action is a Nevada state inmate challenging a judgment of conviction originally entered, pursuant to a guilty plea, in 1986. (ECF No. 15-2 (Exs. 7-9)). Petitioner did not file any motions or petitions challenging the judgment in state or federal court until 2007, when he filed a motion to correct illegal sentence. (ECF No. 15-3 (Ex. 11)). The motion was denied. (Id. at Ex. 13). Petitioner thereafter filed two state habeas petitions, one in 2009 and the other in 2013. (ECF No. 15-5 (Ex. 19); ECF No. 15-8 (Ex. 28)). Both petitions were denied as untimely pursuant to Nevada Revised Statutes § 34.726 and the second was also denied as successive and an abuse of the writ. (ECF No. 15-7 (Ex. 27); ECF No. 15-12 (Ex 45)).

         On November 26, 2013, the state court entered a second amended judgment of conviction to credit petitioner with eight more days of presentence jail time. (ECF 15-11 (Ex. 38)). Petitioner filed a notice of appeal following entry of the second amended judgment. (Id. at Ex. 39). The Nevada Supreme Court dismissed the appeal on April 4, 2014, because petitioner had been awarded the relief he had sought and there was thus no appealable order. (ECF No. 15-12 (Ex. 44)).

         On September 2, 2014, petitioner filed a third state habeas petition. (ECF No. 15-13 (Ex. 46)). The district court dismissed the petition as untimely, and the Nevada Supreme Court affirmed, finding it both untimely and an abuse of the writ. (ECF No. 15-16 (Ex. 56); ECF No. 15-17 (Ex. 62)). Remittitur issued on the Nevada Supreme Court's decision on July 13, 2015. (ECF No. 15-17 (Ex. 62)).

         Petitioner filed the instant federal habeas petition on October 12, 2015. (ECF No. 4 at 1). Respondents move to dismiss the petition as, inter alia, untimely.

         II. Discussion

         A. Timeliness

         The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") established a one-year period of limitations for federal habeas petitions filed by state prisoners. The limitations period runs from the latest of

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the ...

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