United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
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.
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.
initially reviewed the petition, the Court will also order
petitioner to show cause why the petition should not be
dismissed with prejudice as untimely.
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
(last accessed May 24, 2019). Petitioner's criminal case
docket does not reflect entry of any other intervening
judgment of conviction. See
(last accessed May 24, 2019).
October 4, 2016, petitioner filed a petition for writ of
habeas corpus in state court. See
(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.
(last accessed May 24, 2019). Thereafter, petitioner filed
his federal habeas petition on October 8, 2018. (ECF No. 4 at
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. §
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. The instant petition, filed on October 8,
2018, is therefore untimely on its face. Petitioner must
show cause why the petition should not be dismissed with
prejudice as time-barred under § 2244(d).
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).
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).
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).
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.
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
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