United States District Court, D. Nevada
a habeas corpus case proceeding under 28 U.S.C. § 2254.
On June 3, 2019, this court entered an order directing
petitioner to show cause why this action should not be
dismissed with prejudice as time-barred under 28 U.S.C.
§ 2244(d). ECF No. 11. On July 16, 2019, petitioner
filed his response to that order. ECF No. 16.
response, petitioner claims that he is entitled to equitable
tolling because his “competency has been in question
throughout the proceedings, before and after the judgment of
conviction.” Id, p. 3. He also claims he
lacked access to legal materials while detained at a mental
health facility, that he was heavily medicated while
incarcerated in a county jail, and that, while on probation,
his use of methamphetamine induced psychosis. In addition,
petitioner alleges he can demonstrate his actual innocence.
tolling is appropriate only if the petitioner can show: (1)
that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way and
prevented timely filing. Holland v. Florida, 560
U.S. 631, 649 (2010). 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)
(quoting United States v. Marcello, 212 F.3d 1005,
1010 (7th Cir. 2000)). The petitioner ultimately
has the burden of proof on this “extraordinary
exclusion.” Miranda, 292 F.3d at 1065. He must
demonstrate a causal relationship between the extraordinary
circumstance and the lateness of his filing. E.g.,
Spitsyn v. Moore, 345 F.3d 796, 799 (9th
Cir. 2003). Accord Bryant v. Arizona Attorney
General, 499 F.3d 1056, 1061 (9th Cir. 2007).
accepting his allegations as true, petitioner fails to
demonstrate that he is entitled to equitable tolling that
would render his petition timely. Petitioner's judgment
of conviction was entered on September 8, 2011, and imposed a
suspended sentence of 10 to 25 years. Petitioner did not file
a direct appeal, so the limitation period began running when
the time expired for taking a direct appeal, i.e., Monday,
October 10, 2011. See Nev. R. App. P. 4; 28 U.S.C.
§ 2244(d)(1)(A). Based on evaluations from
court-appointed psychologists, the state district court in a
different case adjudicated petitioner incompetent in November
2011 and committed him to Lake's Crossing Center for
treatment. ECF No. 12, p. 60-71. In March 2012, however, the
same court declared him competent to stand trial in that
to petitioner, he was then confined in the Washoe County jail
until March 7, 2013, when he was released on probation. Based
on his allegations, this is when petitioner began abusing
methamphetamine, which induced psychosis. After numerous
probation violations in the following 20 months, the state
district court revoked petitioner's probation on December
1, 2014, and ordered that he serve the original sentence that
had been suspended.
petitioner timely appealed the probation revocation, he
waited until November 12, 2015, to initiate state
post-conviction proceedings challenging his underlying 2011
conviction. Because the post-conviction petition was filed
more than four years after entry of the judgment of
conviction, the Nevada Court of Appeals concluded, in an
order entered on June 28, 2018, that the petition was
procedurally barred as untimely. Petitioner constructively
filed his petition in this case on December 4, 2018. ECF No.
12, p. 1.
petitioner the benefit of the doubt with respect to his time
spent at Lake's Crossing and in the Washoe County jail,
he still fails to show that he is entitled to equitable
tolling beyond March 7, 2013, the date his probation was
reinstated. The only impediment identified by petitioner
after that date is his use of methamphetamines that,
according to him, induced psychosis. In this court's
view, this was not an extraordinary circumstance beyond
petitioner's control. See Bills v. Clark, 628
F.3d 1092, 1099-1100 (9th Cir. 2010) (formulating
a two part test for eligibility for equitable tolling due to
mental impairment). In addition, petitioner has not proffered
evidence that his methamphetamine use was “so
severe” that it rendered him unable to understand the
need to timely file or unable to prepare a habeas petition
and effectuate its filing. Id.
petitioner's use of methamphetamine presumably stopped
when his sentence was imposed on December 1, 2014, yet he
waited until November 12, 2015, to initiate state
post-conviction relief proceedings. Then, he delayed another
four months after his state petition was ultimately rejected
by the Nevada appellate courts before he initiated this
additional or alternative ground for equitable tolling,
petitioner contends that he is actually innocent of the crime
for which he stands convicted. A federal court may entertain
an untimely claim if a petitioner makes a showing of actual
innocence. McQuiggin v. Perkins, 569 U.S. 383, 386
(2013). To qualify for the equitable exception to the
timeliness bar based on actual innocence, a petitioner
“must show that it is more likely than not that no
reasonable juror would have convicted him in the light of the
new evidence.” McQuiggin, 569 U.S. at 399
(quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
petitioner contends that the Nevada State Board of Pharmacy
did not follow Nevada law in classifying methamphetamine as a
Schedule I, instead of a Schedule II, controlled substance.
Accordingly, he argues that, despite his guilty plea, he did
not commit the crime of trafficking in a Schedule I
controlled substance. Be that as it may, this court is not
permitted to instruct the State of Nevada how to administer
its criminal laws. See Swarthout v. Cooke, 562 U.S.
216, 222 (2011) (“[T]he responsibility for ensuring
that the constitutionally adequate procedures governing
California's parole system are properly applied rests
with California courts, and is no part of the Ninth
Circuit's business.”). Petitioner has not
established that “a constitutional error in his plea
colloquy ‘has probably resulted in the conviction of
one who is actually innocent.'” Bousley v.
United States, 523 U.S. 614, 623 (1998) (citation
petitioner has failed to establish that he may be entitled to
equitable tolling and has not disputed the time calculations
set forth in the court's order to show cause (ECF No.
11), his petition shall be dismissed as untimely under 28
U.S.C. § 2244(d).
THEREFORE ORDERED that this action is DISMISSED with
prejudice as untimely. The Clerk of Court shall enter
FURTHER ORDERED that petitioner is denied a certificate of
FURTHER ORDERED that petitioner's motion for extension of
time (ECF No. 15) is GRANTED nun ...