United States District Court, D. Nevada
D. MCKIBBEN UNITED STATES DISTRICT JUDGE
counseled habeas petition comes before the court on
respondents' motion to dismiss the petition as
untimely. (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).
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). 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.
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.
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.
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).
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.)
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).
thereafter, on or about November 14, 2016, filed his federal
habeas petition, which respondents now move to dismiss as
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).
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.(ECF No. 5 at 3). Petitioner filed his
federal petition roughly 47 days later, on or around November
14, 2016. 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.
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).
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.
asserts he is entitled to equitable tolling based on the
abandonment by postconviction ...