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Mogavero v. State

United States District Court, D. Nevada

April 11, 2019

MARCIA MOGAVERO, Petitioner,
v.
STATE OF NEVADA, et al., Respondents.

          ORDER

          GLORIA M. NAVARRO CHIEF UNITED STATES DISTRICT JUDGE

         Before 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.

         Pursuant 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 not appeal.

         On 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).

         On 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 No. 10-26).

         On 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).

         On July 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.

         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). 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. ยง 2244(d)(2). The petitioner effectively files a federal petition when she delivers it to ...


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