United States District Court, D. Nevada
M. NAVARRO CHIEF UNITED STATES DISTRICT JUDGE.
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.
jury trial, petitioner was convicted of seven counts of
theft, three counts of forgery, and one count of
embezzlement. State v. Toston, No.
09C252888. 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.
December 16, 2016, petitioner filed a habeas corpus petition
in the state district court. Toston v. Neven, No.
A-16-748291-W. 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.
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).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,
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). 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).
Ground 1 is not addressable in federal habeas corpus
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.
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 §
The petition appears to be untimely
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).
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 ...