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Pamplin v. Bacca

United States District Court, D. Nevada

October 28, 2019

JOHN D. PAMPLIN, Petitioner,
v.
BACCA, et al., Respondents.

          ORDER

          MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE

         Petitioner John D. Pamplin has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter comes before the Court for consideration of Pamplin's Application to Proceed In Forma Pauperis (“IFP”) (ECF No. 1) and an initial review under the Rules Governing Section 2254 Cases.[1] For the reasons discussed below, the Court denies the IFP application and orders Pamplin to show cause why his petition should not be dismissed as untimely.[2]

         I. BACKGROUND

         Pamplin challenges a judgment of conviction entered by the Eighth Judicial District Court (“state court”) on October 4, 2002, pursuant to which he is still in custody.[3] See State of Nevada v. John David Pamplin, Case No. 02C184760. Pamplin pleaded guilty to one count of murder and two counts of child abuse resulting in substantial bodily harm and was sentenced to life in prison with the possibility of parole after 20 years and two terms of four to ten years, all to be served consecutively. No direct appeal was taken.

         Pamplin previously challenged this same judgment of conviction in federal court. See Pamplin v. Benedetti, Case No. 3:08-cv-0007-RCJ-VPC (D. Nev. Filed Jan. 4, 2008). On January 14, 2011, U.S. District Judge Robert C. Jones entered an order and judgment dismissing the petition as unexhausted. Pamplin appealed, and both the district court and the Ninth Circuit declined to issue a certificate of appealability.

         In August 2018, Pamplin filed a state petition for writ of habeas corpus (“state petition”) seeking post-conviction relief. The state court dismissed the state petition as untimely and procedurally barred, finding that the basis for Pamplin's post-conviction claims had existed for at least 12 years and that was an unreasonable amount of time to wait before bringing a good cause claim. Pamplin appealed, and the Nevada Court of Appeals affirmed the state court's dismissal on October 16, 2019.

         II. IFP APPLICATION

         Under 28 U.S.C. § 1914(a) and the Judicial Conference Schedule of Fees, a $5.00 filing fee is required to initiate a habeas action in a federal district court. The Court may authorize a person to begin an action without prepaying fees and costs if the person submits an IFP application on the approved form along with the appropriate supporting documentation. See 28 U.S.C. § 1915(a); LSR 1-1, LSR 1-2. Although Pamplin submitted the required form, the supporting documents show he is able to pay the $5.00 filing fee. The Court therefore denies his IFP application. Pamplin has 30 days from the date of this order to have the filing fee sent to the Clerk of Court.

         III. ORDER TO SHOW CAUSE

         Pursuant to Habeas Rule 4, the assigned judge must examine the habeas petition and order a response unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019). This rule allows courts to screen and dismiss petitions that are patently frivolous, vague, conclusory, palpably incredible, or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (collecting cases). The Court may dismiss claims at screening for procedural defects. Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998).

         Here, it appears likely that Pamplin's Petition for Writ of Habeas Corpus (ECF No. 1-1) is untimely and subject to dismissal with prejudice.

         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 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. § 2244(d)(2).

         Pamplin's conviction became final when the time expired for filing a notice of appeal with Nevada appellate courts, or on November 4, 2002. The federal statute of limitations thus began to run the following day. Accordingly, the limitations period expired 365 days later, or on November 4, 2003.[4]

         Although Pamplin filed a state postconviction petition on August 13, 2018, it was filed nearly 15 years after the expiration of the federal statute of limitations and thus could not have tolled an already expired limitations period. See Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). Even if the state habeas petition had been filed before the statute of limitations expired, however, it would not have tolled the limitations period anyway, as the petition was untimely in the state courts and denied as such. An untimely state ...


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