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Howard v. Wickham

United States District Court, D. Nevada

April 11, 2019

LAMONT HOWARD, Petitioner,
v.
HAROLD WICKHAM, et al. Respondents.

          ORDER

          HOWARD D. MCKIBBEN UNITED STATES DISTRICT JUDGE

         This counseled habeas petition comes before the court on respondents' motion to dismiss the petition as untimely.[1] (ECF No. 29). Petitioner has opposed (ECF No. 43), and respondents have replied (ECF No. 47). Petitioner argues that he is entitled to equitable tolling and has moved for discovery related to that claim. (ECF No. 34). Respondents have opposed (ECF No. 38), and petitioner has replied (ECF No. 41).

         Petitioner challenges his 2011 state court conviction for sexual assault, kidnapping in the first degree, attempted sexual assault, and two counts of battery with intent to commit sexual assault. (Ex. 56).[2] The Nevada Supreme Court affirmed on direct appeal. (Ex. 80). Petitioner thereafter filed a state postconviction petition for habeas corpus relief. (Ex. 83). Robert Story was appointed to represent petitioner in those proceedings, and Mr. Story filed a supplemental petition on petitioner's behalf. (Exs. 85 & 89). After the trial court denied relief, the Nevada Supreme Court affirmed. (Exs. 99 & 111). Remittitur issued on April 12, 2016. (Ex. 112).

         Mr. Story retired from practice in 2016 - his petition to resign from the bar was filed on March 24, 2016, and granted on September 12, 2016. (ECF No. 9 at 31 & 34; ECF No. 44 at 5-7). There is nothing to indicate that Mr. Story ever moved to withdraw from petitioner's case or advised petitioner of his retirement.

         On May 11, 2016, petitioner sent a letter to the Nevada Supreme Court indicating that he had been unable to contact his attorney because his phone number had changed without notice, and that he would like to know the “status” of his case. (ECF No. 9 at 17). In response, the Nevada Supreme Court sent petitioner a copy of the docket sheet, showing that an order of affirmance had issued in his appeal. (ECF NO. 9 at 18-19). The docket sheet was printed out on May 19, 2016. (Id.) There is no evidence to indicate that the court sent petitioner any further information, including the order of affirmance.

         On May 24, 2016, petitioner signed a motion to withdraw counsel and for transfer of his case file, which was received by the trial court on June 3, 2016, and granted on June 28, 2016. (ECF No. 9 at 8-14).

         On August 11, 2016, petitioner wrote a letter, which was received by the trial court on August 17, 2016. (ECF No. 9 at 15-16). In that letter, petitioner indicated that Mr. Story had not yet complied with the court's order directing him to transfer petitioner's case file. (Id.)

         On September 14, 2016, petitioner filed a motion for contempt with the state court, indicating that Mr. Story had still failed to provide him with his case file. (ECF No. 9 at 21-24). In the motion, petitioner asserted that Mr. Story never communicated with him after filing the postconviction notice of appeal, would not accept or respond to any of petitioner's letters or phone calls, and that his phone number and address changed without notice. Petitioner asserted that Mr. Story never informed him that the Nevada Supreme Court had decided his appeal or issued remittitur and that petitioner has “never received any copy of said order or remittitur.” (Id.) The State, in a response filed September 23, 2016, indicated that on information and belief, Mr. Story was no longer practicing in Nevada and had in fact left the United States with no plan to return. (Id. at 26).

         Petitioner thereafter, on or about November 14, 2016, filed his federal habeas petition, which respondents now move to dismiss as untimely.

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) established a one-year period of limitations for federal habeas petitions filed by state prisoners. The one-year limitation period begins to run after the date on which the judgment challenged became final by the conclusion of direct review or the expiration of the time for seeking such direct review, unless it is otherwise tolled or subject to delayed accrual. 28 U.S.C. § 2244(d)(1)(A).

         As set forth in the court's prior order, unless otherwise tolled or subject to delayed accrual, the deadline for petitioner to file a federal petition for writ of habeas corpus was September 29, 2016.[3](ECF No. 5 at 3). Petitioner filed his federal petition roughly 47 days later, on or around November 14, 2016.[4] Petitioner concedes that the petition was filed at least 30 days after September 29, 2016, depending on when petitioner mailed his habeas petition, but asserts that the limitations period should not have expired by that time due to the application of equitable tolling.

         Equitable tolling is appropriate only if the petitioner can show that: (1) he has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way and prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010). Equitable tolling is “unavailable in most cases, ” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999), and “the threshold necessary to trigger equitable tolling is very high, lest the exceptions swallow the rule, ” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). The petitioner ultimately has the burden of proof on this “extraordinary exclusion.” Id. at 1065. He accordingly must demonstrate a causal relationship between the extraordinary circumstance and the lateness of his filing. E.g., Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). Accord Bryant v. Arizona Attorney General, 499 F.3d 1056, 1061 (9th Cir. 2007).

         The Ninth Circuit has “adopted the ‘stop clock' approach to analyzing claims for equitable tolling. “[T]he statute-of-limitations clock stops running when extraordinary circumstances first arise, but the clock resumes running once the extraordinary circumstances have ended or when the petitioner ceases to exercise reasonable diligence, whichever occurs earlier.” Luna v. Kernan, 784 F.3d 640, 651 (9th Cir. 2015) (citing Gibbs v. Legrand, 767 F.3d 879, 891-92 (9th Cir. 2014)).

         Petitioner asserts he is entitled to equitable tolling based on the abandonment by postconviction ...


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