United States District Court, D. Nevada
JOHN D. PAMPLIN, Petitioner,
BACCA, et al., Respondents.
MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE
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. 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
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. 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.
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.
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.
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.
ORDER TO SHOW CAUSE
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).
it appears likely that Pamplin's Petition for Writ of
Habeas Corpus (ECF No. 1-1) is untimely and subject to
dismissal with prejudice.
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. §
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.
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