United States District Court, D. Nevada
RICHARD F. BOULWARE, II, UNITED STATES DISTRICT JUDGE
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).
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)).
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)).
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)).
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.
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