United States District Court, D. Nevada
counseled habeas petition pursuant to 28 U.S.C. § 2254
comes before the court on respondents' motion to dismiss
the petition as untimely, procedurally defaulted, and
unexhausted in part (ECF No. 43). Petitioner has opposed (ECF
No. 64), and respondents have replied (ECF No. 65).
challenges his 2006 state court judgment of conviction,
following a jury trial at which he represented himself, of
four counts of murder in the first degree with use of a
deadly weapon and ten other associated counts, including
kidnapping, burglary, robbery, and conspiracy to commit
murder. (Ex. 287).Judgment of conviction was entered on
August 3, 2006. (Ex. 310). Because petitioner did not file a
direct appeal, his conviction became final thirty days later,
on September 5, 2006.
December 12, 2006, petitioner filed a state postconviction
petition, which was dismissed as unverified and not in
compliance with the court's form. (Exs. 318 & 325).
Before it was dismissed, petitioner filed a second petition
on February 27, 2007. (Ex. 324). That petition was denied on
December 3, 2007, on the grounds that the claims could have
been raised on direct appeal. (Ex. 336). Petitioner did not
appeal either order.
August 2008, petitioner filed a “motion to appoint
counsel to my direct appeal.” (Ex. 338). The motion was
granted on November 9, 2008, and Lisa Rasmussen was appointed
“for the purpose of filing either a direct appeal or a
petition for post-conviction relief, whichever she deems
appropriate under the circumstances.” (Ex. 341).
next five years, virtually nothing happened. Then, in March
2014, petitioner filed a motion for appointment of new
counsel. (Ex. 343). The court denied the motion. (Ex. 346).
Although petitioner attempted to appeal, the appeal was
dismissed for lack of jurisdiction. (Exs. 347 & 351).
on September 22, 2015, petitioner filed another state
postconviction petition for habeas relief. (Pet. Ex. 52).
Petitioner proceeded to file several amended petitions and,
when those were denied, appeals thereof. (See Exs.
357, 358, 361, 366, 367, 370, 374, 376,  396, 405, 407,
424, 425, 431, 440, 449, 458).Ultimately, the petitions were
denied as untimely, successive, and due to laches. (Exs. 423,
427, 441, 461).
February 14, 2017, petitioner filed his original petition for
federal habeas relief. (ECF No. 1-1 at 2). Following the
court's order, he filed an amended petition. The court
appointed counsel, who filed a second amended petition.
Respondents now move to dismiss the second amended petition
as untimely, procedurally defaulted, and unexhausted in part.
28 U.S.C. § 2244(d)(1)(A), the federal one-year
limitation period, unless otherwise tolled or subject to
delayed accrual, begins running after “the date on
which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such direct
review.” The federal limitations period is tolled while
“a properly filed application for State post-conviction
or other collateral review with respect to the pertinent
judgment or claim is pending.” Id. §
petition is untimely on its face because it was filed more
than eight years after the expiration of the federal statute
of limitations. Between the date petitioner's conviction
became final and the date he initiated timely state
postconviction proceedings, nearly three months elapsed.
Thus, after proceedings concluded, petitioner had a little
more than nine months to file his federal petition. Because
petitioner did not appeal the denial of his petitions,
postconviction proceedings terminated on the last day to file
an appeal, or on January 2, 2008. Absent tolling or other
delayed accrual, the statute of limitations expired in
October 2008. The instant petition was filed in February
2017, more than eight years after the expiration of the
statute of limitations.
while conceding the facial untimeliness of the petition,
argues that he is entitled to equitable tolling. Petitioner
relies principally on his mental health status during the
relevant times periods, but also asserts ineffective
assistance of, or abandonment by, postconviction counsel.
Petitioner requests an evidentiary hearing to the extent the
evidence presented in support of equitable tolling is found
to be lacking.
reviewed the pleadings and the relevant record evidence, the
court concludes that petitioner's tolling argument has
not been sufficiently developed for a decision to be rendered
at this time. The question of whether petitioner's mental
health affected his ability to timely file is complicated. In
the interest of judicial economy, the court defers a
resolution of the timeliness question until it has had an
opportunity to also consider the merits of petitioner's
claims, because if, in the end, the merits are less
complicated than the issues of timeliness, the court may
elect to simply address the merits instead. See Lambrix
v. Singletary, 520 U.S. 518, 525 (1997); Franklin v.
Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002); Day v.
McDonough, 547 U.S. 198, 208-209 (2006). The deferral of
this question will also allow petitioner additional time to
seek or present whatever evidence necessary to support his
claim of equitable tolling, including but not limited to
formally requesting an evidentiary hearing by way of a
separately filed motion.
motion to dismiss the petition as untimely will therefore be