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Meza v. Neven

United States District Court, D. Nevada

April 22, 2019

NICOLE IVETTE MEZA, Petitioner,
v.
WARDEN NEVEN, et al., Respondents.

          ORDER

          GLORIA M. NAVARRO UNIT/ED STATES DISTRICT JUDGE

         This 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.

         Petitioner 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.[1] Petitioner did not file a direct appeal. (Id. at 1). The state court dockets do not reflect entry of any intervening judgment of conviction.[2]

         On July 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 1).

         Under 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. § 2244(d)(2).

         Because 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).

         Petitioner 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.

         To the extent petitioner asserts that Miller v. Alabama, 567 U.S. 460 (2012) renders her petition timely, the argument is without merit.[3] 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.

         Petitioner 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 ...


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