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Fisher v. Baker

United States District Court, D. Nevada

October 21, 2019

DALE ALLEN FISHER, Petitioner,
v.
RENEE BAKER, et al., Respondents.

          ORDER

          MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Pro se Petitioner Dale Allen Fisher is an incarcerated person in Nevada who filed this is habeas corpus proceeding under 28 U.S.C. § 2254. Currently before the Court is Petitioner's Response (ECF No. 5) to the Court's Order to Show Cause (ECF No. 3) as well as his Motion to Exceed Page Limit (ECF No. 1-2), Motion for Appointment of Counsel (ECF No. 1-3) and Motion to Take Judicial Notice (ECF No. 1-4). For the reasons discussed below, the Court dismisses his Petition for Writ of Habeas Corpus (ECF No. 1-1) with prejudice as untimely and denies the remaining motions.

         II. BACKGROUND[1]

         Petitioner challenges a conviction and sentence imposed by the Eighth Judicial District Court for Clark County (“State Court”). State of Nevada v. Fisher, No. C-13-291576-1. In August 2013, Petitioner entered a guilty plea to two counts of attempted lewdness with a minor. (ECF No. 1-1 at 2.) On December 19, 2013, the State Court entered a judgment of conviction sentencing Petitioner to two consecutive sentences of 96-240 months. (Id.) Petitioner appealed. On September 19, 2014, the Nevada Supreme Court affirmed Petitioner's convictions on direct appeal, and a remittitur issued the following month.[2] (Id. at 48-52.)

         Petitioner filed a counseled motion to correct illegal sentence (“Collateral Motion”) on February 11, 2015. The State Court held a hearing in August 2015, and then entered an order denying the Collateral Motion. (Id. at 54-55.) Petitioner appealed. The Nevada Supreme Court affirmed the State Court's ruling in November 2016, and a remittitur issued on December 14, 2016. (Id. at 57-60.)

         On November 7, 2017, Petitioner filed a pro se state petition for writ of habeas corpus (“State Petition”). (Id. at 64.) The State Court denied the State Petition as time-barred in March 2018. (Id. at 63-83.) Petitioner appealed. The Nevada Court of Appeals affirmed the denial of relief in March 2019, and a remittitur issued the following month. (Id. at 88-91.)

         On June 19, 2019, Petitioner initiated this federal habeas proceeding pro se. (See Id. at 40.) The Court issued an order to show cause why his petition should not be dismissed as untimely. (ECF No. 3.) Petitioner was informed that his conviction became final when the time expired for filing a petition for writ of certiorari with the United States Supreme Court, on December 18, 2014. (Id. at 2.) The following day, the one-year federal statute of limitations began to run as set forth in the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d). The limitations period was tolled during the pendency of Petitioner's Collateral Motion, from February 11, 2015, until December 14, 2016.[3] (Id.) Before the Collateral Motion was filed, 54 days of the 365-day limitations period elapsed. (Id.) The limitations period started again on December 15, 2016, with 311 days remaining to file a federal petition.[4] (Id.) The Court therefore stated, absent equitable tolling or delayed accrual, Petitioner's tolled limitation period expired on October 23, 2017.[5] (Id. at 3.)

         In addition, the Court informed Petitioner that his State Petition, filed November 7, 2017, could not have tolled the AEDPA limitation period because it was filed two weeks after the deadline expired. (Id. (citing Jimenez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001)); see also Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). And even if the State Petition was filed before October 23, 2017, it would not have further tolled AEDPA's limitation period because the State Court found the petition untimely and denied it as such.[6] (ECF No. 3 at 3 (citing Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) (an untimely state petition is not “properly filed” and thus does not toll AEDPA's statute of limitations).)

         Given these facts, the Court ordered Petitioner to show cause in writing why this action should not be dismissed with prejudice as untimely. (Id. at 5.) He was further ordered to support any factual assertions in his response with competent evidence. (Id.)

         In his response, Petitioner acknowledges that his federal claims are untimely but argues that equitable tolling is warranted based on the faulty advice he received from defense counsel. (ECF No. 5.)

         III. EQUITABLE TOLLING

         A. Legal Standard

         AEDPA establishes a one-year period of limitations for federal habeas petitions filed by state prisoners under 28 U.S.C. § 2254. The one-year limitation period begins to run from the latest of four possible triggering dates, with the most common being the date the petitioner's state court conviction became final by the conclusion of direct appellate review. Id. § 2244(d)(1)(A). Statutory tolling occurs while a “properly filed” state post-conviction proceeding or other collateral review is pending. Id. ยง 2244(d)(2). However, an application for state ...


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