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Toston v. Woods

United States District Court, D. Nevada

July 3, 2019

MARILYN TOSTON, Petitioner,
v.
NATALIE WOODS, et al., Respondents.

          ORDER

          GLORIA M. NAVARRO CHIEF UNITED STATES DISTRICT JUDGE.

         Petitioner has filed an amended petition for a writ of habeas corpus (ECF No. 8). The court has reviewed it pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. The court will dismiss one ground. The court will serve the petition upon respondents for a response to the remainder of the petition.

         Background

         After a jury trial, petitioner was convicted of seven counts of theft, three counts of forgery, and one count of embezzlement. State v. Toston, No. 09C252888.[1] Petitioner appealed. The Nevada Supreme Court transferred the case to the Nevada Court of Appeals. The Nevada Court of Appeals affirmed on May 17, 2016. The Nevada Court of Appeals transferred the case back to the Nevada Supreme Court, which issued the remittitur on June 13, 2016. Toston v. State, No. 68530.[2]

         On December 16, 2016, petitioner filed a habeas corpus petition in the state district court. Toston v. Neven, No. A-16-748291-W.[3] This petition claimed that the credits earned toward an earlier release should be applied to petitioner's minimum term and parole eligibility. The state district court granted the petition. Petitioner appealed. The Nevada Supreme Court dismissed the appeal for lack of jurisdiction because petitioner was not an aggrieved party. Toston v. Warden, No. 74260.[4]

         On June 28, 2017, petitioner filed a post-conviction habeas corpus petition in the state district court. This petition challenged the validity of the judgment of conviction. The state district court found that the petition was untimely because petitioner filed it more than one year after issuance of the remittitur at the end of the direct appeal, under Nev. Rev. Stat. § 34.726(1).[5]Petitioner appealed. The Nevada Supreme Court transferred the case to the Nevada Court of Appeals. The Nevada Court of Appeals affirmed on September 11, 2018. The Nevada Court of Appeals denied rehearing on November 16, 2018. The Nevada Court of Appeals transferred the case back to the Nevada Supreme Court, which issued the remittitur on December 11, 2018. Toston v. State, No. 74255.[6]

         On December 21, 2018, this court received the initial petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 7).[7] The court directed petitioner to file an amended petition that named the correct respondent and that was signed and verified. ECF No. 6. Petitioner then filed the amended petition (ECF No. 8).

         Discussion

         A. Ground 1 is not addressable in federal habeas corpus

         In ground 1, petitioner claims that the state courts erred in denying her post-conviction habeas corpus petition as untimely. "[A] petition alleging errors in the state post-conviction review process is not addressable through habeas corpus proceedings." Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989); see also Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997). The court dismisses ground 1.

         Additionally, ground 1 would be without merit even if it was addressable in federal habeas corpus. "[A] petition that challenges the validity of a judgment or sentence must be filed [. . .], if an appeal has been taken from the judgment, within 1 year after the appellate court of competent jurisdiction pursuant to the rules fixed by the Supreme Court pursuant to Section 4 of Article 6 of the Nevada Constitution issues its remittitur." Nev. Rev. Stat. § 34.726(1). Nevada does not have a prison mailbox rule for the filing of a post-conviction habeas corpus petition. Gonzales v. State, 53 P.3d 901, 904 (Nev. 2002). The state district court received the post-conviction habeas corpus petition on June 21, 2017, and the state district court filed that petition on June 28, 2017. Either date is more than one year past the issuance of the remittitur on June 13, 2016, making the state petition untimely under § 34.726(1).[8]

         B. The petition appears to be untimely

         Under 28 U.S.C. § 2244(d)(1)(A), petitioner had one year from the date her judgment of conviction became final to file a habeas corpus petition pursuant to 28 U.S.C. § 2254 in this court. Petitioner's judgment of conviction became final on August 15, 2016, when the time to petition the Supreme Court of the United States for a writ of certiorari expired. See Jimenez v. Quarterman, 555 U.S. 113, 119-20 (2009). See also Sup. Ct. R. 13(1).

         The one-year period was tolled while petitioner had a properly filed habeas corpus petition pending in the state courts. 28 U.S.C. § 2244(d)(2). The state petition that claimed that petitioner should have credits applied toward her minimum terms and parole eligibility qualified for tolling. The state petition that challenged the validity of the judgment of ...


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