United States District Court, D. Nevada
RUBEN P. PEREZ, Petitioner,
BRIAN WILLIAMS, SR., et al., Respondents.
RICHARF F BOULWARE, II UNITED STATES DISTRICT JUDGE
the Court are Petitioner's Amended Petition for a Writ of
Habeas Corpus (ECF No. 12), Respondents' Motion to
Dismiss (ECF No. 26), Petitioner's Opposition (ECF No.
34), and Respondents' Reply (ECF No. 40). The Court
grants the Motion to Dismiss, finding this action is
has limited the time in which a person can petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254:
A 1-year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursuant
to the judgment of a State court. The limitation period shall
run 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
exercise of due diligence.
28 U.S.C. § 2244(d)(1). If the judgment is not appealed,
then it becomes final thirty days after entry, when the time
to appeal to the Nevada Supreme Court has expired. See
Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). See also
Nev. R. App. P. 4(b), 26(a). For Section 2244(d)(1)(B) to
apply, the state-created impediment must have
“altogether prevented [petitioner] from presenting his
claims in any form, to any court.”
Ramirez v. Yates, 571 F.3d 993, 1001 (9th Cir. 2009)
(emphasis in original). If Section 2244(d)(1)(D) is
applicable, then the one-year period starts to run when the
petitioner learned, or could have learned through due
diligence, the important facts, not the legal significance of
the facts. Hasan v. Galaza, 254 F.3d 1150, 1154 n.3
(9th Cir. 2001).
time spent pursuing a properly filed application for state
post-conviction review or other collateral review does not
count toward this one-year limitation period. 28 U.S.C.
§ 2244(d)(2). The period of limitation resumes when the
post-conviction judgment becomes final upon issuance of the
remittitur. Jefferson v. Budge, 419 F.3d 1013, 1015
n.2 (9th Cir. 2005). An untimely state post-conviction
petition is not “properly filed” and does not
toll the period of limitation. Pace v. DiGuglielmo,
544 U.S. 408, 417 (2005).
2244(d) is subject to equitable tolling. Holland v.
Florida, 560 U.S. 631, 645 (2010). “[A]
‘petitioner' is ‘entitled to equitable
tolling' only if he shows ‘(1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way' and
prevented timely filing.” Id. at 649 (quoting
Pace, 544 U.S. at 418).
petitioner effectively files a federal petition when he
delivers it to prison officials to be forwarded to the clerk
of the court. Rule 3(d), Rules Governing Section 2254 Cases
in the United States District Courts.
to a guilty plea agreement, Petitioner was convicted of one
count of conspiracy to murder with the intent to promote,
further, or assist a criminal gang (Count I) and one count of
first- degree murder (Count II). The state district court
entered the judgment of conviction on June 29, 1999. Ex. 13
(ECF No. 13-13). Petitioner did not appeal.
mailed his original, proper person habeas corpus petition
(ECF No. 4) to the Court on April 7, 2016. The Court
appointed counsel, who filed the ...