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Barragan v. Filson

United States District Court, D. Nevada

August 27, 2019

TIMOTHY FILSON, et al., Respondents.



         This is a habeas corpus proceeding under 28 U.S.C. § 2254 brought by Moises Barragan, a Nevada prisoner convicted of several crimes in state court. Before the court for decision are respondents' motion to dismiss (ECF No. 22) and Barragan's motion for leave to conduct discovery (ECF No. 35). As grounds for their motion, respondents argue that Barragan's second amended petition was untimely filed and contains grounds that are procedurally barred and/or unexhausted. With his request for discovery, Barragan asks permission to depose three individuals who, according to him, will assist him in demonstrating that he is actually innocent of crimes for which he has been convicted. For reasons that follow, the court grants respondents' motion to dismiss and denies petitioner's motion for leave to conduct discovery.


         In January 2009, a jury sitting in the Eighth Judicial District Court for Clark County, Nevada, found Barragan guilty of (1) conspiracy to commit a crime, (2) first degree murder with use of a deadly weapon, (3) attempted murder with use of a deadly weapon with the intent to promote, further, or assist a criminal gang, and (4) discharging a firearm out of a motor vehicle. After a sentencing hearing, a judgment of conviction was entered on May 14, 2009, that includes several concurrent and consecutive terms of imprisonment, including two consecutive life sentences on the first-degree murder with use of deadly weapon count. Barragan filed a direct appeal.

         On May 7, 2010, the Nevada Supreme Court entered an order affirming the judgment of conviction. On June 26, 2013, Barragan filed a state petition for writ of habeas corpus that was followed by a counseled amended petition. The state district court concluded that Barragan's petition was procedurally barred as untimely under Nev. Rev. Stat. § 34.726. On appeal, the Nevada Court of Appeals affirmed the lower court. Those proceedings were concluded with a remittitur issued on February 23, 2017. Barragan's only other state court proceeding was a “motion to correct and clarify an illegal sentence pursuant to NRS 176.555” that was filed in September 2017 and denied in December 2017, with no appeal.

         On July 27, 2017, Barragan initiated this proceeding by filing a counseled, federal petition for writ of habeas corpus. He also filed an ex parte motion for appointment of counsel, which the court granted. On October 30, 2017, Barragan filed a first-amended petition. On August 28, 2018, Barragan filed a second-amended petition, which is the subject of respondents' motion to dismiss.


         The 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).

         A collateral challenge in state court is not “properly filed” for purposes of 28 U.S.C. § 2244(d)(2) if a state court determines it was not timely filed under state law. Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005). In other words, “[w]hen a postconviction petition is untimely under state law, ‘that [is] the end of the matter' for purposes of § 2244(d)(2).” Id. at 414 (citation omitted). Also, once a state post-conviction proceeding pursuant to a properly filed application has concluded, the statutory time period resumes running.

         Respondents argue this federal proceeding must be dismissed under AEDPA's statute of limitations because Barragan filed his petition 2, 548 days after his conviction became final on August 5, 2010. Barragan does not dispute respondents' time calculation. He argues, however, that the court may still consider his petition because he is actually innocent of the charged crimes and/or he is entitled to equitable tolling.

         1. Actual innocence.

         In McQuiggin v. Perkins, 569 U.S. 383 (2013), the Supreme Court held that actual innocence, if proved, serves as a gateway through which a petitioner may bypass the expiration of the AEDPA statute of limitations. 569 U.S. at 386. The Court also noted, however, that tenable actual innocence claims are rare. Id. Under Schlup v. Delo, 513 U.S. 298 (1995), “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.” 513 U.S. at 329. Put another way, “actual innocence” is established when, in light of all the evidence, “it is more likely than not that no reasonable juror would have convicted [the petitioner].” Bousley v. United States, 523 U.S. 614, 623 (1998) (quoting Schlup, 513 U.S. at 327-28). The petitioner must establish his factual innocence of the crime, and not mere legal insufficiency. Id.; Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). To demonstrate actual innocence to overcome a procedural bar under McQuiggin and Schlup, a petitioner must present “new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.” Schlup, 513 U.S. at 324.

         The State presented evidence at trial, which is not disputed here, that on March 21, 2007, a car containing Barragan, Jose Escamilla, and Eduardo Escamilla encountered three individuals walking on a Las Vegas street, whereupon the front passenger of the car leaned out the window and fired one shot, injuring one of the three and killing another. ECF No. 33, p. 6-9. Barragan's actual innocence claim is premised on the contention that he was the driver of the car, not the passenger who fired the shot, as the State alleged at trial.

         The evidence Barragan proffers consists of his own declaration, signed on April 27, 2019, ten years after his trial, and the declaration of Maribel Yanez, a staff investigator with ...

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