United States District Court, D. Nevada
M. NAVARRO CHIEF UNITED STATES DISTRICT JUDGE
court dismissed this action for non-payment of the filing
fee. ECF No. 14. However, soon after the court checked its
financial records, payment of the filing fee was recorded.
Petitioner now has filed a motion for relief from the
judgment (ECF No. 16), which the court grants. The court has
reviewed the petition pursuant to Rule 4 of the Rules
Governing Section 2254 Cases in the United States District
Courts. The court will serve the petition upon respondents
for a response.
upon preliminary review, the action appears to be untimely.:
A 1-year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursuant
to the judgment of a State court. The limitation period shall
run 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). If the judgment is appealed,
then it becomes final when the Supreme Court of the United
States denies a petition for a writ of certiorari or when the
time to petition for a writ of certiorari expires.
Jimenez v. Quarterman, 555 U.S. 113, 119-20 (2009).
See also Sup. Ct. R. 13(1). If the judgment is not appealed,
then it becomes final thirty days after entry, when the time
to appeal to the Nevada Supreme Court has expired. See
Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). See
also Nev. R. App. P. 4(b), 26(a).
time spent pursuing a properly filed application for state
post-conviction review or other collateral review does not
count toward this one-year limitation period. 28 U.S.C.
§ 2244(d)(2). The period of limitation resumes when the
post-conviction judgment becomes final upon issuance of the
remittitur. Jefferson v. Budge, 419 F.3d 1013, 1015
n.2 (9th Cir. 2005). An untimely state post-conviction
petition is not "properly filed" and does not toll
the period of limitation. Pace v. DiGuglielmo, 544
U.S. 408, 417 (2005). A prior federal habeas corpus petition
does not toll the period of limitation. Duncan v.
Walker, 533 U.S. 167, 181-82 (2001).
2244(d) is subject to equitable tolling. Holland v.
Florida, 560 U.S. 631, 645 (2010). "[A]
'petitioner' is 'entitled to equitable
tolling' only if he shows '(1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way' and
prevented timely filing." Id. at 649 (quoting
Pace, 544 U.S. at 418).
innocence can excuse operation of the statute of limitations.
McQuiggin v. Perkins, 569 U.S. 383, 386-87 (2013).
"'[A] petitioner does not meet the threshold
requirement unless he persuades the district court that, in
light of the new evidence, no juror, acting reasonably, would
have voted to find him guilty beyond a reasonable
doubt.'" Id. at 386 (quoting Schlup v.
Delo, 513 U.S. 298, 329 (1995)). "'[A]ctual
innocence' means factual innocence, not mere legal
insufficiency." Bousley v. United States, 523
U.S. 614, 623 (1998).
petitioner effectively files a federal petition when he
delivers it to prison officials to be forwarded to the clerk
of the court. Rule 3(d), Rules Governing Section 2254 Cases
in the United States District Courts.
jury trial in state district court, petitioner was convicted
of one count of conspiracy to possess stolen property and/or
to commit burglary and twenty-six counts of possession of
stolen property. The state district court entered its
judgment of conviction on November 4, 2008.Petitioner
appealed. On July 30, 2010, the Nevada Supreme Court
determined that the evidence was insufficient for one of the
counts of possession of stolen property, and it affirmed on
all other grounds. On September 17, 2010, the state district
court entered an amended judgment of conviction. Petitioner
did not appeal the amended judgment. On October 28, ...