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Spreadborough v. Dzurenda

United States District Court, D. Nevada

May 28, 2019

LUKE SPREADBOROUGH, Petitioner,
v.
J. DZURENDA, et al., Respondents.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.

         This is a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has not properly commenced this action by either paying the $5.00 filing fee or filing a complete application for leave to proceed in forma pauperis. On February 14, 2019, the Court entered an order directing petitioner to either file a complete pauper application or pay the filing fee within sixty days of the Court's order. The Court also directed petitioner to file an amended petition omitting the sensitive information in Exhibit C of the petition, and if he wished for Exhibit C to remain under seal in its entirety, to file it with a motion to seal. The Court warned petitioner that failure to do so would result in dismissal without prejudice.

         Petitioner has partially complied with the Court's order by filing an amended petition omitting the sensitive information in Exhibit C and moving to file Exhibit C under seal in its entirety. Petitioner has not, however, either paid the filing fee or submitted a complete pauper application. LSR 1-1 & 1-2. This action therefore remains improperly commenced. The Court will give petitioner one final opportunity to either pay the filing fee or submit a complete pauper application. Should he fail to timely do so, this action will be dismissed without prejudice and without further advance notice.

         Having initially reviewed the petition, the Court will also order petitioner to show cause why the petition should not be dismissed with prejudice as untimely.[1]

         Petitioner in this action challenges his state court judgment of conviction, pursuant to guilty plea, of eluding a police officer, DUI, ex-felon in possession of a firearm, and discharge of a firearm in Second Judicial District Court No. CR150321. (ECF No. 5 at 2). According to the state court records available online, of which the Court takes judicial notice, an amended judgment of conviction was entered on August 5, 2015, and petitioner did not pursue a direct appeal. See http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=50875 (last accessed May 24, 2019). Petitioner's criminal case docket does not reflect entry of any other intervening judgment of conviction. See https://www.washoecourts.com/Query/CaseInformation/CR15-0321 (last accessed May 24, 2019).

         On October 4, 2016, petitioner filed a petition for writ of habeas corpus in state court. See http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=50875 (last accessed May 24, 2019). The state courts denied that petition as procedurally barred as it was filed after the expiration of the state statute of limitations. See Id. Remittitur on the Nevada Court of Appeals' order in the state habeas matter issued on January 10, 2018. See http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=42138 (last accessed May 24, 2019). Thereafter, petitioner filed his federal habeas petition on October 8, 2018. (ECF No. 4 at 1).

         Under 28 U.S.C. § 2244(d)(1)(A), the federal one-year limitation period, unless otherwise tolled or subject to delayed accrual, begins running after “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such direct review.” The federal limitations period is tolled while “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” Id. § 2244(d)(2).

         Because petitioner did not file a direct appeal, his conviction became final, at the latest, on September 4, 2015, 30 days after entry of the amended judgment of conviction. The federal statute of limitations thus began to run the following day, on September 5, 2015, and absent a basis for tolling or other delayed accrual, expired a year later, on September 6, 2016.[2] The instant petition, filed on October 8, 2018, is therefore untimely on its face.[3] Petitioner must show cause why the petition should not be dismissed with prejudice as time-barred under § 2244(d).

         In this regard, petitioner is informed that the one-year limitation period may be equitably tolled. 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.” Miranda, 292 F.3d 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).

         Petitioner further is informed that, under certain circumstances, the one-year limitation period may begin running on a later date or may be statutorily tolled. See 28 U.S.C. § 2244(d)(1)(B), (C), (D) & (d)(2).[4]

         Petitioner further is informed that if he seeks to avoid application of the limitation period based upon a claim of actual innocence, he must come forward with new reliable evidence tending to establish actual factual innocence, i.e., tending to establish that no juror acting reasonably would have found him guilty beyond a reasonable doubt. See McQuiggin v. Perkins, 569 U.S. 383 (2013); House v. Bell, 547 U.S. 518 (2006); Lee v. Lampert, 653 F.3d 929 (9th Cir. 2011) (en banc). In this regard, “'actual innocence' means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 624, 623 (1998).

         In accordance with the foregoing, IT IS THEREFORE ORDERED the petitioner shall either pay the $5.00 filing fee or file a complete application for leave to proceed in forma pauperis within thirty days of the date of this order. The Clerk of Court shall send petitioner two copies of the inmate pauper application and instructions for the same, along with two copies of this order. Petitioner shall make the necessary arrangements to have a copy of this order attached to any check for the filing fee.

         IT IS FURTHER ORDERED that petitioner's motion to file Exhibit C under seal (ECF No. 6) is GRANTED. In accordance with the requirements of Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006), the Court finds that a compelling need to protect the privacy and/or personal identifying information of petitioner in Exhibit C outweighs the public interest in open access to court records. Exhibit C (ECF No. 6-1) is therefore considered properly filed under seal.

         IT IS FURTHER ORDERED that petitioner shall SHOW CAUSE within thirty days of the date of this order why the action should not be dismissed as untimely. If petitioner does not timely respond to this order, the petition will be dismissed with prejudice without further advance notice. If petitioner responds but fails to show with specific, detailed and competent ...


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