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Perez v. Williams

United States District Court, D. Nevada

March 20, 2019

RUBEN P. PEREZ, Petitioner,
v.
BRIAN WILLIAMS, SR., et al., Respondents.

          ORDER

          RICHARF F BOULWARE, II UNITED STATES DISTRICT JUDGE

         Before 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 untimely.

         Congress 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).

         Any 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).

         Section 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).

         The 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.

         Pursuant 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.

         Petitioner 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 ...


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