United States District Court, D. Nevada
M. NAVARRO CHIEF UNITED STATES DISTRICT JUDGE
the court are the petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 (ECF No. 7) and
respondents' motion to dismiss (ECF No. 9). Petitioner
has not responded, and the court construes a lack of response
as a concession that the motion to dismiss is meritorious. LR
7-2(d). The court grants the motion and dismisses the action
because the petition is untimely.
to North Carolina v. Alford, 400 U.S. 25 (1970),
petitioner pleaded guilty to one count of abuse and/or
neglect of an order or vulnerable person resulting in
substantial bodily or mental harm or death, and one count of
child abuse, neglect, or endangerment. Ex. 4 (ECF No. 10-4).
The state district court entered its judgment of conviction
on October 2, 2013. Ex. 10 (ECF No. 10-10). Petitioner did
September 22, 2014, in the state district court petitioner
filed a motion to extend the time to file a post-conviction
habeas corpus petition. Ex. 13 (ECF No. 10-13). The state
district court denied the motion on January 5, 2015. Ex. 23
(ECF No. 10-23).
February 12, 2015, in the state district court petitioner
filed a document styled as a supplement to the already denied
motion to extend time. Ex. 25 (ECF No. 10-25). The state
district court denied the motion on May 4, 2015. Ex. 26 (ECF
April 20, 2018, in the state district court petitioner filed
a motion for modification of sentence. Ex. 27 (ECF No.
10-27). The state district court denied the motion on June
12, 2018. Ex. 29 (ECF No. 10-29).
24, 2018, petitioner mailed her federal habeas corpus
petition (ECF No. 7) to this court. The court dismissed
ground 3 because it clearly lacked merit. Reasonable jurists
would not find that conclusion debatable or wrong, and the
court will not issue a certificate of appealability on that
ground. The motion to dismiss followed.
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.
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). 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 petitioner effectively files a federal
petition when she delivers it to ...