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Follett v. Baca

United States District Court, D. Nevada

August 26, 2019

SEAN DAVID FOLLETT, Petitioner,
v.
ISIDRO BACA, et al., Respondents.

          ORDER

          Robert C. Jones United States District Judge.

         Before the court are the amended petition for writ of habeas corpus (ECF No. 36), respondents' motion to dismiss (ECF No. 44), petitioner's opposition (ECF No. 51) and supplement to opposition (ECF No. 62), and respondents' reply (ECF No. 52) and reply to the supplement (ECF No. 65). The action is untimely, and the remaining four grounds are procedurally defaulted without excuse. The court grants the motion to dismiss.

         I. Procedural Background

         Pursuant to a plea agreement, on October 15, 2010, petitioner was convicted in state district court of three counts of burglary. Petitioner's Ex. 10 (ECF No. 36-10). Petitioner appealed. Petitioner's Ex. 11 (ECF No. 36-11). The state district court entered an amended judgment of conviction on June 8, 2011. Petitioner's Ex. 14 (ECF No. 36-14). On June 8, 2011, the Nevada Supreme Court affirmed. Petitioner's Ex. 15 (ECF No. 36-15).

         On October 7, 2011, petitioner, pro se, filed his first post-conviction habeas corpus petition in the state district court. Petitioner's Ex. 16 (ECF No. 36-16). The state district court appointed counsel, who filed a supplement. Petitioner's Ex. 18 (ECF No. 36-18). On May 31, 2013, the state district court denied the petition. Petitioner's Ex. 21 (ECF No. 36-21). The state district court issued its notice of entry of the order on June 6, 2013. Respondents' Ex. 129 (ECF No. 66-22). Petitioner did not file a timely notice of appeal.[1]

         On March 24, 2014, petitioner filed a belated notice of appeal from the denial of the first post-conviction habeas corpus petition. Petitioner's Ex. 23 (ECF No. 36-23). On May 13, 2014, the Nevada Supreme Court dismissed the appeal as untimely. Petitioner's Ex. 26 (ECF No. 36-26, at 2). On July 30, 2014, the Nevada Supreme Court denied rehearing. Respondents' Ex. 45 (ECF No. 46-12). On August 26, 2014, the Nevada Supreme Court issued its remittitur. Respondents' Ex. 46 (ECF No. 46-13).

         On May 6, 2014, while the untimely appeal from the first post-conviction petition was pending, petitioner filed a second post-conviction habeas corpus petition in the state district court. Petitioner's Ex. 24 (ECF No. 36-24). On February 4, 2015, the state district court dismissed the second petition as successive under Nev. Rev. Stat. § 34.810. Petitioner's Ex. 32 (ECF No. 36-32). Petitioner appealed. Petitioner's Ex. 34 (ECF No. 36-34). The Nevada Supreme Court transferred the case to the Nevada Court of Appeals. On June 16, 2015, the Nevada Court of Appeals affirmed. It found that the second state post-conviction petition was both untimely under Nev. Rev. Stat. § 34.726(1) and successive under Nev. Rev. Stat. § 34.810. Petitioner's Ex. 35, at 1-2 (ECF No. 36-35, at 2-3). The Nevada Court of Appeals also held that petitioner had not shown cause and prejudice to excuse the procedural bars. Id. at 2-3 (ECF No. 36-35, at 3-4). The Nevada Court of Appeals transferred the case back to the Nevada Supreme Court, which issued the remittitur on July 13, 2015. Respondents' Ex. 107 (ECF No. 47-41).

         On July 23, 2015, petitioner mailed his original, proper-person habeas corpus petition under 28 U.S.C. § 2254 to this court. ECF No. 4. The court provisionally appointed the Federal Public Defender. ECF No. 3. The court then allowed the Federal Public Defender to withdraw because of a potential conflict of interest. ECF No. 19. The court appointed Mary Lou Wilson to represent petitioner. Petitioner filed his counseled amended petition on October 20, 2017. ECF No. 36. The court dismissed grounds 4 and 5 because they are not addressable in federal habeas corpus, and the court directed respondents to respond to the remaining grounds. ECF No. 38. Respondents filed their motion to dismiss on October 1, 2018. ECF No. 44. The motion to dismiss went through a full round of briefing with Wilson as counsel for petitioner. ECF No. 51, ECF No. 52. The court then allowed Wilson to withdraw and appointed Jamie J. Resch to represent petitioner. ECF No. 54, ECF No. 55. The parties then filed supplements to their briefs. ECF No. 62, ECF No. 65.

         II. The action is untimely

         A. Standard for timeliness

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). If the judgment is appealed, then it becomes final when the Supreme Court of the United States denies a petition for a writ of certiorari or when the time to petition for a writ of certiorari expires. Jimenez v. Quarterman, 555 U.S. 113, 119-20 (2009). See also Sup. Ct. R. 13(1). Any time spent pursuing a properly filed application for state post-conviction review or other collateral review does not count toward this one-year limitation period. 28 U.S.C. § 2244(d)(2). An untimely state post-conviction petition is not "properly filed" and does not toll the period of limitation. Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005).

         Section 2244(d) is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010). "[A] 'petitioner' is 'entitled to equitable tolling' only if he shows '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Id. at 649 (quoting Pace, 544 U.S. at 418).

         Actual innocence can excuse operation of the statute of limitations. McQuiggin v. Perkins, 569 U.S. 383, 386-87 (2013). "'[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.'" Id. at 386 (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). "'[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998). "In cases where the Government has forgone more serious charges in the course of plea bargaining, petitioner's showing of actual innocence must also extend to those charges." Id. at 624.

         The petitioner effectively files a federal petition when he delivers it to prison officials to be forwarded to the clerk of the court. Rule 3(d), Rules Governing Section 2254 Cases in the United States District Courts.

         B. The action is untimely under the statute

         The Nevada Supreme Court decided petitioner's direct appeal on June 8, 2011. Petitioner's Ex. 15 (ECF No. 36-15). The judgment of conviction thus became final at the end of September 6, 2011, with expiration of the time to file a petition for a writ of certiorari with the Supreme Court of the United States.

         Thirty (30) days passed between the finality of the judgment of conviction and the filing of the first state post-conviction habeas corpus petition on October 7, 2011.[2] Petitioner's Ex. 16 (ECF No. 36-16). The filing of the petition tolled the one-year limitation period under 28 U.S.C. § 2244(d)(2).

         The parties dispute when the first state post-conviction proceedings concluded, and when the one-year limitation period resumed. Respondents note that the state district court denied the petition on Friday, May 31, 2013, that under state rules the time to appeal started running the following Monday, June 3, 2013, and the time to appeal expired at the end of July 2, 2013. Respondents argue that the one-year period resumed on July 3, 2013. ECF No. 44, at 3 & n.1. The dates are incorrect, because the thirty-day time to appeal the denial of a post-conviction habeas corpus petition, plus three days for service by mail, runs from the issuance of the notice of entry of order, on June 6, 2013, and not from the entry of the order on May 31, 2013. See Nev. Rev. Stat. § 34.575(1), Nev. R. App. P. 26(c). The time to appeal expired on July 9, 2013, tolling under 28 U.S.C. § 2244(d)(2) ended, and the federal one-year period resumed the next day.

         Petitioner argues that the one-year period should have resumed from the issuance of the remittitur on August 26, 2014, after the Nevada Supreme Court dismissed his direct appeal. First, post-conviction counsel told petitioner that the notice of appeal had been filed, when in truth it had not been filed. See Petitioner's Ex. 22 (ECF No. 36-22), Petitioner's Ex. 25 (ECF No. 36-25, at 53-58). Second, petitioner questions whether the time to appeal the denial of a post-conviction petition is jurisdictional, citing Hamer v. Neighborhood Hous. Servs., 138 S.Ct. 13 (2017). Third, petitioner argues that he had no reason to file in federal court while an opportunity remained for the Nevada Supreme Court to consider his appeal, citing Rudin v. Myles, 781 F.3d 1043, 2015 (9th Cir. 2015).

         Petitioner's arguments regarding counsel's statement that a notice of appeal had been filed and that he had no reason to file in federal court are better suited toward equitable tolling. The court will address those arguments in the following section.

         Regarding Hamer, the best case for petitioner is that Hamer is inapplicable; the worst case for petitioner is that Hamer confirms the Nevada Supreme Court's ruling on the untimely appeal. The Court stated, "[A]n appeal filing deadline prescribed by statute will be regarded as 'jurisdictional,' meaning that late filing of the appeal notice necessitates dismissal of the appeal. But a time limit prescribed only in a court-made rule . . . is not jurisdictional; it is, instead, a mandatory claim-processing rule subject to forfeiture if not properly raised by the appellee." 138 S.Ct. at 17 (citing Bowles v. Russell, 551 U.S. 205, 210-13 (2007)). In Hamer itself, the district court granted an extension of time to appeal under Rule 4(a)(5)(C) of the Federal Rules of Appellate Procedure that exceeded the rule's limit, and the other party did not move for reconsideration or otherwise object. ...


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