United States District Court, D. Nevada
JASON S. BROWN, Petitioner,
WARDEN BAKER, et al., Respondents.
MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE
a habeas corpus proceeding under 28 U.S.C. § 2254
brought by Petitioner Jason S. Brown, a Nevada prisoner who
is represented by counsel. Currently before the Court is
Respondents' Motion to Dismiss (“Respondents'
Motion”) (ECF No. 20). Brown has opposed (ECF Nos. 31,
36-1), and Respondents have replied (ECF Nos. 35,
47).Also before the Court is Brown's Motion
for Evidentiary Hearing (“Petitioner's
Motion”) (ECF No. 37). Respondents have opposed (ECF
No. 48). No. reply brief was filed and the deadline for doing
so has expired. For the reasons discussed below,
Respondents' Motion is granted and Petitioner's
Motion is denied.
Procedural History 
challenges a conviction and sentence imposed by the Second
Judicial District Court for Washoe County, Nevada. In June
2015, Brown entered a plea of nolo contendere to
seven felony charges of “torturing and/or killing an
animal, ” in violation of NRS § 574.100. (ECF No.
21-13.) On October 1, 2015, the State Court entered a
judgment of conviction sentencing Brown to consecutive
sentences of 19 to 48 months per count. (ECF No. 21-17.) An
amended judgment was entered December 30, 2015. (ECF No.
21-23.) He did not appeal.
filed a state petition for writ of habeas corpus on October
4, 2016. (ECF No. 21-25.) He also requested that counsel be
appointed. (ECF No. 21-24.) The state court appointed
counsel. (ECF No. 21-25.) After multiple extensions of time,
counsel filed a supplemental petition in May 2017. (ECF No.
filed a motion to dismiss, arguing that Brown's state
petition was untimely. (ECF No. 22-6.) In November 2017, the
state court granted Respondents' motion and denied the
state petition as time-barred. (ECF No. 22-15.) Brown
appealed. The Nevada Court of Appeals affirmed the state
court's ruling, and a remittitur issued on September 20,
2018. (ECF Nos. 22-28, 22-29.)
Federal Habeas Action
November 17, 2017, Brown filed his original federal habeas
petition along with a motion for appointment of counsel. (ECF
No. 1.) This Court appointed counsel. (ECF Nos. 5, 11.) In
November 2018, Brown filed a counseled First Amended Petition
(“Petition”) (ECF No. 19) alleging three grounds.
now move to dismiss the petition as untimely, partially
unexhausted and/or procedurally defaulted.
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) establishes a one-year period of
limitations for federal habeas petitions filed by state
prisoners under 28 U.S.C. § 2254. In relevant part,
(1) 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; [or]
(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 . . . .
28 U.S.C. § 2244(d).
argues that his federal petition should be considered timely
because he is entitled to both equitable tolling and
statutory tolling under §§ 2244(d)(1)(B). The Ninth
Circuit has outlined the correct order of analysis for claims
of statutory and equitable tolling. Federal courts must first
determine whether a petition is untimely under the AEDPA
one-year limitation period. Jorss v. Gomez, 311 F.3d
1189, 1192 (9th Cir. 2002). Second, the court considers
whether “a petition is timely due to statutory tolling
under § 2244(d)(2), ” which provides tolling when
a properly filed application for post-conviction or other
collateral review is pending in the state courts.
Id. Third, the court determines whether equitable
tolling is appropriate. Lott v. Mueller, 304 F.3d
918, 925 (9th Cir. 2002). If necessary, the court then
addresses statutory tolling under § 2244(d)(1)(B)
(i.e., delayed accrual), which postpones the start
of the one-year limitation period until an unconstitutional,
state-created impediment to filing is removed. Id.
Accordingly, the Court will address Brown's tolling
arguments in this sequence.
Timeliness Under § 2244(d)(1)(A)
one-year period begins to run from the latest of four
possible triggering dates, with the most common being the
date on which a petitioner's state court conviction
became final. 28 U.S.C. § 2244(d)(1)(A). When the state
court issues an amended judgment of conviction, AEDPA's
one-year limitation period restarts from the date of
amendment. Smith v. Williams, 871 F.3d 684, 687 (9th
Cir. 2017). When no direct appeal is filed, a judgment
becomes final when the time period for seeking such review
expires. 28 U.S.C. § 2244(d)(1)(A); Gonzalez v.
Thaler, 565 U.S. 134, 137 (2012). For prisoners
convicted in Nevada, a notice of appeal must be filed
“with the district court clerk within 30 days after the
entry of the judgment or order being appealed.” Nev. R.
App. P. 4(b)(1).
Brown did not file a direct appeal. His amended judgment of
conviction was entered December 30, 2015. (ECF No. 21-23.)
Thus, the time for Brown to seek such review expired January
30, 2016. The AEDPA limitation period began running after
this date. Absent any tolling or delayed accrual, the
limitation period expired one year later on January 30, 2017.
This expiration date is not disputed.
Supreme Court has held that AEDPA's limitation period
“is subject to equitable tolling in appropriate
cases.” Holland v. Florida, 560 U.S. 631, 645
(2010). However, equitable tolling is appropriate only if a
petitioner can show: (1) he has been pursuing his rights
diligently, and (2) some extraordinary circumstance stood in
his way and prevented timely filing. Id. at 649
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)). A petitioner “must show that some
‘external force' caused his untimeliness, rather
than mere oversight, miscalculation or negligence.”
Velasquez v. Kirkland, 639 F.3d 964, 969 (9th Cir.
2011) (quotation omitted). Thus, he must demonstrate a causal
relationship between the extraordinary circumstance and the
lateness of his filing. E.g., Bryant v. Arizona
Att. Gen., 499 F.3d 1056, 1061 (9th Cir. 2007)
(untimeliness must be “caused by an external impediment
and not by [petitioner's] own lack of diligence”).
The petitioner bears the burden of demonstrating that he is
entitled to equitable tolling. Espinoza-Matthews v.
California, 432 F.3d 1021, 1026 (9th Cir. 2005).
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) (quotation omitted).
Ninth Circuit has “adopted the ‘stop clock'
approach to analyzing claims for equitable tolling.
“[T]he 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.
argues four grounds to justify equitable tolling: (1) trial
counsel abandoned Brown after sentencing, (2) Brown suffered
from threats of violence and spent time in administrative
segregation during his first year in prison, (3)
post-conviction counsel erroneously conceded the untimeliness
of Brown's state petition, and (4) the state court and