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Feazell v. Baker

United States District Court, D. Nevada

July 17, 2019

DONEALE FEAZELL, Petitioner,
v.
RENEE BAKER, et al., Respondents.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE.

         I. SUMMARY

         This counseled amended habeas petition pursuant to 28 U.S.C. § 2254 comes before the Court on Respondents' motion to dismiss (ECF No. 42). Petitioner has opposed (ECF No. 58), and Respondents have replied (ECF No. 61). For the reasons discussed herein, the Court will grant Respondents' motion.

         II. RELEVANT BACKGROUND

         Petitioner Doneale Feazell challenges his state court conviction of one count of attempted robbery with the use of a deadly weapon and one count of murder with the use of deadly weapon. (ECF No. 35 at 1-2.) Petitioner was found guilty on both counts following an eleven-day jury trial in 1994; the same jury then sentenced him to death. (See ECF Nos. 43-21, 43-22, 43-23, 43-24, 43-25, 43-26, 43-27, 43-28, 43-29, 43-30, 43-31, 43-32, 43-33, 43-34, 43-35, 44, 44-1, 44-2 (Exs. 21-38).) Although the judgment was affirmed on direct appeal, the Nevada Supreme Court vacated the sentence on postconviction review, remanding for a new penalty hearing. (ECF Nos. 44, 44-16, 46-9 (Exs. 36, 52, 117).)

         Following a second penalty hearing, after which the jury hopelessly deadlocked, the trial court sentenced Petitioner to life without the possibility of parole. (ECF Nos. 48, 48-1, 48-2, 48-3, 48-4, 48-5, 48-6, 48-7, 48-8, 48-9, 48-10, 48-11, 48-12 (Exs. 180-92).) Amended judgment of conviction was entered on March 18, 2009. /ECF No. 48-12 (Ex. 192).) Petitioner appealed. (ECF No. 48-13 (Ex. 193).) The Nevada Supreme Court affirmed the amended judgment of conviction on September 9, 2010, and remittitur issued on October 4, 2010. (ECF No. 48-34 (Ex. 214).)

         During the second penalty hearing proceedings and on appeal thereof, Petitioner was represented by Patricia Erickson. (See, e.g., ECF No. 49-2 (Ex. 218) at 5.) Exactly one year after the issuance of remittitur, on October 4, 2011, Erickson filed a state postconviction petition for habeas relief on Petitioner's behalf, arguing she herself had been ineffective during the second penalty proceedings. (Id.) Shortly thereafter, she moved for leave to withdraw and for appointment of new counsel on Petitioner's behalf. (ECF No. 49-3 (Ex. 219).) Following appointment of new counsel and further proceedings on the second state habeas petition, the trial court denied relief and the Nevada Supreme Court affirmed. (ECF Nos. 50-6, 50-17 (Exs. 253, 264).) Remittitur issued on February 9, 2016. (ECF No. 50-18 (Ex. 265).)

         Thereafter, on or about June 2, 2016, Petitioner filed a federal pro se petition for writ of habeas corpus relief in this court. (ECF No. 1-1 at 1.) The Court appointed counsel, and after several extensions of time and appointment of substitute counsel, current counsel filed the operative amended petition for habeas corpus relief on September 4, 2018. (ECF No. 35.) Respondents now move to dismiss the amended petition as, among other things, untimely.

         III. STANDARD

         The one-year limitation period for § 2254 petitions generally begins to run after the date on which the judgment challenged became final by the conclusion of direct review or the expiration of the time for seeking such direct review, unless it is otherwise tolled or subject to delayed accrual.[1] 28 U.S.C. § 2244(d)(1)(A). The limitations period is tolled while “a properly filed application for State post-conviction or other collateral review” is pending. Id. § 2244(d)(2). Neither a properly filed federal habeas petition nor an untimely state habeas petition tolls the limitations period. Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005) (holding that an untimely state habeas petition is not “properly filed” and thus does not toll the limitation period); Duncan v. Walker, 533 U.S. 167, 172 (2001) (holding that “a properly filed federal habeas petition does not toll the limitation period”).

         The statute of limitations can be equitably tolled in some circumstances. See Holland v. Florida, 560 U.S. 631, 645 (2010). 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. Id. at 649. 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 bears 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. Ariz. Att'y Gen., 499 F.3d 1056, 1061 (9th Cir. 2007).

         The Ninth Circuit has “adopted the ‘stop clock' approach to analyzing claims for equitable tolling, ” in which “the statute-of-limitations clock stops running when extraordinary circumstances first arise, but the clock resumes running once the extraordinary circumstances have ended or when the petitioner ceases to exercise /// reasonable diligence, whichever occurs earlier.” Luna v. Kernan, 784 F.3d 640, 651 (9th Cir. 2015) (citing Gibbs v. Legrand, 767 F.3d 879, 891-92 (9th Cir. 2014)).

         IV. DISCUSSION

         As Petitioner did not file a petition for writ of certiorari with the United States Supreme Court, his conviction became final when the time for doing so expired, or on December 8, 2010. The statute of limitations began to run the following day. The parties agree that the statute of limitations was tolled while Petitioner's second state postconviction habeas petition was pending, from October 4, 2011, until February 9, 2016. Before the petition was filed and began tolling the statute of limitations, 300 days elapsed. Accordingly, absent tolling or other delayed accrual, ...


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