United States District Court, D. Nevada
P. GORDON UNITED STATES DISTRICT JUDGE.
a habeas corpus case under 28 U.S.C. § 2254. In
accordance with my October 1, 2019 order (ECF No. 3),
petitioner Mariano Madrid paid the filing fee. Thus, the
habeas petition is before me for initial review under Rule 4
of the Rules Governing Section 2254 Cases.
petition indicates that Madrid's judgment of conviction
was entered on October 8, 2007, and that his direct appeal of
that conviction was decided May 1, 2009. ECF No. 1-1, p. 1.
The petition also indicates that Madrid filed his first state
post-conviction petition on June 10, 2010, and that
proceeding concluded with the denial of his appeal on
November 13, 2014. Id.
brought a prior federal habeas proceeding with respect to the
same conviction and sentence in January 2015. See Madrid
v. Neven, 2:15-cv-00118-JAD-PAL. That proceeding was
dismissed when Madrid, having been denied stay and abeyance,
elected to suffer dismissal and return to state court rather
than abandon his unexhausted claims. Id., ECF Nos.
January 2017, Madrid filed a petition for writ of habeas
corpus in the state district court. ECF No. 1-3, p. 3. On
August 13, 2019, the Nevada Court of Appeals affirmed the
lower court's decision to dismiss the state petition as
untimely filed. Id., p. 23-26. Madrid initiated this
proceeding on September 16, 2019. ECF No. 1-1, p. 1.
sua sponte raise the question whether the petition
is time-barred for failure to file it within the one-year
limitation period in 28 U.S.C. § 2244(d)(1). See
Herbst v. Cook, 260 F.3d 1039 (9th Cir.
2001). Under 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
federal limitation period is statutorily tolled during the
pendency of a properly filed application for state
post-conviction relief or for other state collateral review.
28 U.S.C. § 2244(d)(2). However, if a state court
determines the collateral challenge was not timely filed
under state law, the collateral challenge is not
“properly filed” for purposes of 28 U.S.C. §
2244(d)(2). 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. The one-year statutory period is not
tolled during the pendency of a federal habeas petition.
Duncan v. Walker, 533 U.S. 167, 172 (2001).
on the information currently before me, the statutory period
for Madrid ran from July 30, 2009 (90 days from the denial of
his direct appeal) until June 10, 2010 (the date Madrid filed
his first state post-conviction petition). The period resumed
running on December 10, 2014, when the Nevada Supreme Court
issued a remittitur concluding the first state post-
conviction proceeding. While Madrid's first federal
petition in January 2015 may have been timely filed, it
appears that the federal limitation period expired prior to
Madrid initiating this proceeding because the statutory
period was not tolled during the prior federal proceeding
(Duncan v. Walker) or the untimely state proceeding
(Pace v. DiGuglielmo). Thus, Madrid must show cause
in writing why the petition should not be dismissed with
prejudice as time barred.
certain circumstances, the one-year limitation period may
begin running on a date later than the date on which the
conviction became final. See 28 U.S.C. §
2244(d)(1)(B-D). Also, in addition to statutory tolling under
§ 2244(d)(2), the one-year limitation period may be
equitably tolled. Equitable 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).
a preliminary demonstration by Madrid that his petition may
be timely under the foregoing principles, I will dismiss the
petition with prejudice. McNabb v. Yates, 576 F.3d
1028, 1030 (9th Cir. 2009) (“[D]ismissal of
a first habeas petition for untimeliness presents a
‘permanent and incurable' bar to federal review of
the underlying claims.”).
has also filed a motion for appointment of counsel. I have
discretion to appoint counsel when if the “interests of
justice” require representation. 18 U.S.C. §
3006A(a)(2)(B). There is no constitutional right to appointed
counsel for a federal habeas corpus proceeding.
Pennsylvania v. Finley, 481 U.S. 551, 555(1987);
Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir. 1993).
The decision to appoint counsel is generally discretionary.
Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.
1986); Bashor v. Risley, 730 F.2d 1228, 1234
(9th Cir. 1984). However, counsel must be
appointed if the complexities of the case are such that
denial of counsel would amount to a denial of due process,
and where the petitioner is a person of such limited
education as to be incapable of fairly presenting his claims.
See Chaney, 801 F.2d at 1196; see also Hawkins
v. Bennett, 423 F.2d 948 (8th Cir. 1970). The petition
on file in this action is sufficiently clear in presenting
the issues Madrid wishes to bring, and the issues in this
case are not particularly complex. It does not appear that
appointment of counsel is warranted in this instance.
Madrid's motion for the appointment of counsel will be
THEREFORE ORDER the Clerk to file the habeas petition and
motion for appointment of counsel currently docketed as
attachments at ECF No. 1. The Clerk shall also add Aaron D.
Ford, Attorney General of the State of Nevada, as counsel for
the respondents, and electronically serve a copy of the
petition and this order upon the respondents.
FURTHER ORDER that, within 30 days of entry of this order,
Madrid shall show cause in writing why the petition should
not be dismissed with prejudice as time-barred. If Madrid
does not timely respond to this order, the petition will be
dismissed with prejudice as time-barred without further
advance notice. If Madrid responds but fails to show -- with
specific, detailed and competent evidence __ that the
petition is timely, the action will be dismissed with
FURTHER ORDER that all assertions of fact made by Madrid in
response to this show cause order must be detailed, must be
specific as to time and place, and must be supported by
competent evidence. I will not consider any assertions of
fact that are not specific as to time and place, that are not
based upon a declaration under penalty of perjury based upon
personal knowledge, and that are not supported by competent
evidence filed by Madrid in the federal record. Madrid must
attach copies of all material ...