United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
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'
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).)
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).)
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).)
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.
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. 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”).
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
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
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, ...