United States District Court, D. Nevada
the court is respondents' motion to dismiss (ECF No. 28)
in response to petitioner Brown's first amended petition
for writ of habeas corpus under 28 U.S.C. § 2254 (ECF
No. 18). With their motion, respondents contend that
Brown's original petition is untimely, and that his
amended petition contains claims that were not fairly
presented in state court and are conclusory. For reasons that
follow, the court will grant the motion and dismiss this case
December 22, 2011, a judgment of conviction was entered
against Brown in the Eighth Judicial District Court for
Nevada that imposed multiple concurrent sentences of life
without possibility of parole under Nevada's large
habitual criminal statute. Brown timely appealed the
conviction. He also filed a pro se post-conviction petition
in the state district court that was denied for lack of
jurisdiction due to his pending direct appeal.
September 26, 2013, the Nevada Supreme Court entered an order
affirming Brown's judgment of conviction. The court
subsequently denied Brown's petition for en banc
reconsideration on January 24, 2014.
December 4, 2014, Brown filed a counseled petition for
post-conviction relief in the state district court. After a
change in counsel, he filed a supplemental petition that was
denied. On appeal, the case was transferred to the Nevada
Court of Appeals, which affirmed the lower court. A
remittitur concluding that proceeding was issued on June 13,
initiated this federal habeas proceeding on February 4, 2017.
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
imposes a one-year filing period for § 2254 habeas
petitions in federal court. 28 U.S.C. § 2244(d)(1). The
one-year period begins to run from the latest of four
possible triggering dates, with the most common being the
date on which the petitioner's state court conviction
became final (by either the conclusion of direct appellate
review or the expiration of time for seeking such review).
Id. Statutory tolling of the one-year time
limitation occurs while a “properly filed” state
post-conviction proceeding or other collateral review is
pending. 28 U.S.C. § 2244(d)(2).
Brown concedes that he filed this habeas action 95 days after
the expiration of AEDPA's one-year filing
period. He argues, however, that he is entitled to
equitable tolling of the statute of limitations due to
attorney misconduct. Specifically, he alleges that the
attorney representing him on direct appeal in the state court
failed to timely notify him that his appeal had concluded.
According to Brown, the statutory period should be equitably
tolled from the date his conviction became final (April 24,
2014) until the date he alleges counsel first notified him
his direct appeal had been denied (December 4, 2014).
tolling is appropriate only if the petitioner can show: (1)
that he has been pursuing his rights diligently, and (2) that
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 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).
fails to meet the standard for equitable tolling. Despite his
allegations to the contrary, his proffered evidence does not
conclusively show that counsel failed to notify him of the
status of his appeal. He offers no declaration of his own,
and his direct appeal attorney's declaration merely
states as follows:
On 12/04/14 I received a telephone call from Mr. Brown asking
the status of his appeal. I was surprised because his appeal
was denied on 01/24/14 and I thought he had received our
paperwork regarding this matter. Because of the limited time
period for the filing, I agreed to refile his previously
filed Writ of Habeas in June and September 2013.
ECF No. 33-1, p. 3. In the absence of any other probative
evidence on the issue, it is not clear that counsel was at
fault for Brown not being timely notified that his direct
appeal was no longer pending.
counsel, through oversight or negligence, failed to notify
Brown of the appeal denial until December 4, 2014, that alone
is not “unprofessional attorney conduct” that may
“prove ‘egregious' and can be
‘extraordinary.'” Holland, 560 U.S.
at 651. There is no showing that counsel failed to respond to
any prior inquiries from Brown regarding the status of his
appeal. Cf. Holland, 560 U.S. at 652
(“[Counsel] failed to communicate with his client over
a period of years, despite various pleas from Holland that
[counsel] respond to his letters.”); Gibbs v.
Legrand, 767 F.3d 879, 887 (9thCir. 2014).
(“[Counsel] failed to communicate with Gibbs
‘over a period of years,' despite repeated efforts
by Gibbs to engage him.”). And, the fact that counsel
filed Brown's state post-conviction petition the same day
as Brown's inquiry demonstrates that she did not
“abandon” him. ECF No. 33-1; see Maples v.
Thomas, 565 U.S. 266, 282 (2012) (adopting Justice
Alito's concurring opinion in Holland, which
“homed in on the essential difference between a claim
of attorney error, however egregious, and a claim that an