United States District Court, D. Nevada
C. Jones United States District Judge.
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
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).
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.
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).
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).
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.
The action is untimely
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).
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).
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.
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.
The action is untimely under the statute
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.
(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. 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).
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.
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).
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.
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. ...