United States District Court, D. Nevada
M. NAVARRO UNIT/ED STATES DISTRICT JUDGE
pro se petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 comes before the Court following
petitioner's response to the order to show cause why the
petition should not be dismissed as untimely.
challenges her state court judgment of conviction, pursuant
to guilty plea, of conspiracy to commit murder, murder with
use of a deadly weapon, and robbery with use of a deadly
weapon in Clark County No. 285960-2. (ECF No. 1-1 at 2).
Judgment of conviction was entered on April 8,
2014. Petitioner did not file a direct appeal.
(Id. at 1). The state court dockets do not reflect
entry of any intervening judgment of
31, 2017, petitioner filed a petition for writ of habeas
corpus in state court. The state courts denied that petition
as procedurally barred as it was filed well after the
expiration of the state statute of limitations. (Id.
at 19-27). Remittitur on the Nevada Court of Appeals'
order in the state habeas matter issued on September 24,
2018. (Id. at 18). Thereafter, petitioner filed her
federal habeas petition on January 29, 2019. (Id. at
28 U.S.C. § 2244(d)(1)(A), the federal one-year
limitation period, unless otherwise tolled, begins running
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). “The 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 section.” Id. §
petitioner did not file a direct appeal, her conviction
became final when the time for filing a direct appeal
expired, on May 8, 2014. The federal statute of limitations
thus began to run the following day, and absent a basis for
tolling or other delayed accrual, expired a year later, on
May 8, 2015. Her state post-conviction petition, filed after
the expiration of the federal statute of limitations and,
being denied as untimely, not “properly filed, ”
did not statutorily toll the limitations period. Pace v.
DiGuglielmo, 544 U.S. 408, 414 (2005). The instant
petition was filed on or about January 29, 2019, more than
three years and eight months after this date, and is
therefore untimely. (ECF No. 1-1 at 1).
appears to argue her petition should be deemed timely due to
a combination of equitable tolling, discovery of new
evidence, and new U.S. Supreme Court law.
extent petitioner asserts that Miller v. Alabama,
567 U.S. 460 (2012) renders her petition timely, the argument
is without merit. Even assuming Miller, and the
case holding it retroactively applicable on collateral review
-- Montgomery v. Louisiana, -- U.S. --, 136 S.Ct.
718 (2016) -- could provide petitioner a basis for relief,
the petition was filed more than a year after the latest of
these decisions. The petition cannot be deemed timely on the
grounds of new constitutional law.
also asserts that she recently discovered evidence that her
trial attorney was suspended for conduct that occurred during
the timeframe in which she was representing petitioner. (ECF
No. 4 at 1). However, the evidence petitioner offers does not
support any conclusion that her attorney's misconduct had
anything to do with her representation of petitioner or that
she performed deficiently in ...