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Davis v. Neven

United States District Court, D. Nevada

March 31, 2019

JAMES ANTHONY DAVIS, Petitioner,
v.
DWIGHT W. NEVEN, et al., Respondents.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

         This habeas matter under 28 U.S.C. § 2254 comes before the Court on respondents' motion to dismiss (ECF No. 50), petitioner's motion to file an exhibit under seal (ECF No. 60), his motion for an evidentiary hearing (ECF No. 62), and an outstanding extension motion (ECF No. 71). In the motion to dismiss, respondents contend that the petition is untimely. Following review, the Court directs an evidentiary hearing.

         Background

          Petitioner James Davis challenges his Nevada state conviction, pursuant to a guilty plea, of first-degree murder. He is sentenced to life with the possibility of parole after twenty years.

         Discussion

         Provisional Base Calculation of the Federal Limitation Period

         The original judgment of conviction was entered on April 27, 2004. Davis filed, inter alia, a timely appeal in proper person. On October 18, 2004, the attorney appointed for the appeal filed a verified notice asserting that Davis consented to a voluntary dismissal of the appeal and moved for dismissal. The state supreme court dismissed the appeal on December 16, 2004. (ECF Nos. 30-25, 30-33, 31-12, 31-13 & 31-19.)[1]

         The time to file a certiorari petition expired on Wednesday, March 16, 2005. Under 28 U.S.C. § 2244(d)(1)(A), the one-year federal limitation period, unless tolled or subject to delayed accrual, would begin running after this date.[2]

         However, petitioner filed, inter alia, a timely state postconviction petition prior to March 16, 2005, on January 21, 2005, before any time had elapsed in the limitation period. Pursuant to 28 U.S.C. § 2244(d)(2), the federal limitation period was statutorily tolled while this petition was pending. Proceedings on the petition were pending before the state district court and thereafter the state supreme court through the issuance of the remittitur concluding the appeal on August 21, 2007. (ECF Nos. 31-20, 32-10, 32-16, & 32-17.)

         Accordingly, the one-year limitation period would not begin running instead until after August 21, 2007. Absent any other tolling or delayed accrual, or as discussed infra, amended judgments, the federal limitation period would expire one year later on August 21, 2008.

         Meanwhile, an amended judgment of conviction was filed on May 11, 2005, following Davis' motion seeking more sentence credit for time served. The amended judgment increased the credit for time served from 123 days in the original judgment to 137 days in the amended judgment. However, the preamble in the May 11, 2005, amended judgment did not refer to Davis' sentence of life imprisonment with the possibility of parole after twenty years. The preamble instead stated, in error, that the court at sentencing “did adjudge the Defendant guilty . . ., suspended the execution of the sentence(s) imposed and granted probation to the Defendant.” (ECF Nos. 30-25, 31-25 & 31-31.)

         Under Smith v. Williams, 871 F.3d 684 (9th Cir. 2017), the federal limitation period would start anew after the June 10, 2005, expiration of time to appeal the amended judgment of conviction -- at least viewing the amended judgment in isolation. Respondents analyze the impact of the May 11, 2005, amended judgment on the calculation of the limitation period without accounting for the then-still-pending proceedings on the timely January 21, 2005, state post-conviction petition. (See ECF No. 51, at 7-8.) However, respondents cite no authority holding that the filing of an amended judgment of conviction overrides the directive in § 2244(d)(2) that “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” There would appear to be every reason to construe the phrase “with respect to the pertinent judgment” in § 2244(d)(2) as applying successively to an amended judgment of conviction filed during the pendency of timely state post-conviction proceedings. A successful post-conviction proceeding would also impact the amended judgment. Failing to continue to statutorily toll the federal limitation period in this situation would perversely disadvantage a petitioner who was diligently seeking to challenge his conviction, as amended. There is no good reason either legally or equitably to discontinue statutorily tolling of the federal limitation period in this circumstance.

         The May 11, 2005, amended judgment of conviction therefore had no practical impact on the calculation of the federal limitation period in this case. Because of the already pending timely state post-conviction proceeding, the one-year limitation period would not begin running until after the issuance of the remittitur on August 21, 2007.

         Moreover, given that federal limitation period would not even begin running under the foregoing analysis until after August 21, 2007, there is no need for the Court to consider the potential statutory tolling effect of other state court proceedings that were both begun and concluded prior to that date. The Court thus, for example, has no occasion to consider the potential statutory tolling impact of Davis' two original petitions for relief in the state supreme court that were denied prior to this date. (See ECF Nos. 31-5, 31-10, 31-11, 31-33, 31-34 & 31-35.)

         A second amended judgment of conviction was filed after August 21, 2007, however, on May 9, 2008. The new judgment corrected the error in the earlier amended judgment, while maintaining the 137 days credit for time served. The new judgment deleted the reference to suspension of the sentence with probation and again stated instead that Davis was sentenced to life with the possibility of parole after twenty years. (ECF No. 32-18.) Smith and subsequent Ninth Circuit caselaw suggests that the federal limitation period also would start anew after the expiration of the time to seek direct review of the second amended judgment. See Scott v. Asuncion, No. 16-55688, 737 Fed.Appx. 348 (9th Cir., Sept. 12, 2018); Marquez v. McDaniel, No. 17-15154, 729 Fed.Appx. 583 (9th Cir., June 29, 2018); Gonzalez v. Sherman, 873 F.3d 763, 773 n.5 (9th Cir. 2017).[3] It thus would appear that the federal limitation period began to run anew after the expiration of the time to seek direct review on Monday, June 9, 2008. Absent tolling or delayed accrual, the limitation period would expire one year later on June 9, 2009.

         With one possible exception, petitioner's state court filings between June 9, 2008, and the constructive filing of the present federal petition on August 10, 2015, either: (a) were untimely state petitions that therefore were not “properly filed” for purposes of statutory tolling under § 2244(d)(2); (b) sought collateral procedural relief rather than challenging petitioner's conviction; (c) otherwise did not challenge his criminal conviction as opposed to challenging a prison disciplinary conviction; or (d) led to proceedings of such short duration that they would not materially impact the calculation of the federal limitation period even if they otherwise potentially might provide a basis for statutory tolling. Moreover, any proceedings filed after a putative expiration of the federal limitation period on June 9, 2009, in all events could not impact the calculation of the federal limitation period, once expired, absent other tolling or delayed accrual that would prevent the limitation period from expiring prior to those proceedings.[4]

         Accordingly, at least within the contours of the parties' arguments, it would appear as a provisional matter that the federal limitation period putatively expired on June 9, 2009, absent tolling, delayed accrual, or some other basis to overcome the time bar.[5]

         Equitable Tolling

         Davis has presented a neuropsychological evaluation report by Dr. Sharon Jones-Forrester, Ph.D. She opines, inter alia, that his alleged borderline intellectual functioning, relatively low literacy and significant neurocognitive and psychiatric deficits following upon a traumatic and dysfunctional childhood, during which he was institutionalized, inter alia, “may negatively impact his ability to understand legal information and the legal consequences of his actions, carefully and consistently follow legally required case filing deadlines and make decisions with regard to his case with a reasonable degree of rational understanding.” (ECF No. 61-1, at 2, sealed exhibit.)

         The Court finds that the handling of Davis' four prior timely federal petitions, which it outlines below, coupled with Dr. Jones-Forrester's neuropsychological opinion, warrants an evidentiary hearing in this matter.

         The pleadings in the four actions have remained unfiled on the left side of the archived physical records because the actions were dismissed during initial review. They will be attached as an appendix to this order so that they may be accessed on CM/ECF in this action.

         On or about June 29, 2004, Davis dispatched his first federal postconviction proceeding to the Clerk, which was docketed under No. 3:04-cv-00374-HDM-RAM. Davis submitted, inter alia, a notice of appeal and a motion pursuant to 28 U.S.C. § 2255.[6] All of Davis' papers other than the § 2255 petition were presented on apparently state court forms, on which Davis provided his No. C197660 state court case number.[7]

         The initial order in No. 3:04-cv-00374 noted that the Court did not have appellate jurisdiction over the state courts and further that a § 2255 motion was “misguided” as an attack on a state court conviction. The Court directed the Clerk to send petitioner § 2254 forms and instructions and gave him thirty days to file a habeas petition on the correct form. (No. 3:04-cv-00374, ECF No. 3 at 2.)

         Davis' pauper application also was on the wrong form and lacked the required financial attachments, given that it also was submitted on state forms. The initial order did not inform Davis of these deficiencies or provide the proper form and instructions, however. The order stated instead that the pauper application was “premature until petitioner files a cognizable pleading herein.” (Id.)

         The initial order in No. 3:04-cv-00374 was entered and served by the Clerk on August 4, 2004. (Id., at 1.) The thirty-day deadline under the order therefore would have expired on Tuesday, September 7, 2004, following the Labor Day holiday.

         One day later, on or about September 8, 2004, Davis dispatched a motion for an extension in No. 3:04-cv-00374, writing that docket number on the motion. He sought an extension to November 1, 2004 to file a “civil rights complaint form: 42 U.S.C. 1983.” (No. 3:04-cv-00374, ECF No. 4.)[8]

         Perhaps inconsistently, also on or about September 8, 2004, Davis dispatched to the Clerk: (1) a habeas petition, albeit on a state form; (2) five accompanying handwritten memoranda and/or motions, including papers presenting legal argument on the merits and a motion for a writ of mandamus; and (3) a pauper application, again on state forms. (No. 3:04-cv-00499-LRH-VPC, ECF No. 1 and left side of record.)

         The Clerk filed these papers in a new civil action under a new docket number, No. 3:04-cv-00499-LRH-VPC. Davis again had placed the state court docket number - No. C197660 - on his papers. Notably, above the title on the habeas petition form, Davis wrote “Leave to Amend” and, somewhat ambiguously, “Amended Judgment of ...


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