United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE
Donta Wright submitted a pro se 28 U.S.C. § 2254 habeas
corpus petition and has now paid the filing fee (ECF Nos.
1-1, 5). The petition shall be dismissed as untimely.
Antiterrorism and Effective Death Penalty Act (AEDPA) went
into effect on April 24, 1996, and imposes a one-year statute
of limitations on the filing of federal habeas corpus
petitions. 28 U.S.C. § 2244(d). The one-year time
limitation can run from the date on which a petitioner's
judgment became final by conclusion of direct review, or the
expiration of the time for seeking direct review. 28 U.S.C.
§ 2244(d)(1)(A). Further, a properly filed petition for
state postconviction relief can toll the period of
limitations. 28 U.S.C. § 2244(d)(2).
petitioner may be entitled to equitable tolling if he can
show “‘(1) that he has been pursuing his right
diligently, and that (2) some extraordinary circumstance
stood in his way' and prevented timely filing.”
Holland v. Florida, 560 U.S. 631, 649 (2009)
(quoting prior authority). 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.” 292 F.3d at 1065. He accordingly 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).
Ignorance of the one-year statute of limitations does not
constitute an extraordinary circumstance that prevents a
prisoner from making a timely filing. See Rasberry v.
Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“a
pro se petitioner's lack of legal sophistication
is not, by itself, an extraordinary circumstance warranting
federal petition, Wright states that the judgment of
conviction he seeks to challenge-No. 278988-2-was entered in
February 2013 (ECF No. 1-1, pp. 4, 9). He did not file a
direct appeal, and therefore, his conviction became final 30
days later. The docket of the Nevada Court of Appeals
reflects that Wright filed a state postconviction habeas
corpus petition more than 5 years after the judgment of
conviction was entered. Nevada Court of Appeals No. 76104.
Wright claimed in his state petition that his sentence
enhancement for robbery with use of a deadly weapon violates
his federal constitutional rights to a fair trial, equal
protection, and to be free from double jeopardy. The Nevada
Court of Appeals affirmed the denial of the petition as
untimely and therefore procedurally barred. Id.
Wright acknowledges that his federal petition is untimely. He
states, with no elaboration whatsoever, that he can
demonstrate cause and prejudice to overcome the procedural
In all cases in which a state prisoner has defaulted his
federal claims in state court pursuant to an independent and
adequate state procedural rule, federal habeas review of the
claims is barred unless the prisoner can demonstrate cause
for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure
to consider the claims will result in a fundamental
miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991);
see also Murray v. Carrier, 477 U.S. 478, 485
demonstrate cause for a procedural default, the petitioner
must be able to “show that some objective factor
external to the defense impeded” his efforts to comply
with the state procedural rule. Murray, 477
U.S. at 488 (emphasis added). For cause to exist, the
external impediment must have prevented the petitioner from
raising the claim. See McCleskey v. Zant, 499 U.S.
467, 497 (1991).
federal habeas cases arising out of Nevada, the state courts,
generally, apply substantially the same standards as the
federal courts in determining whether a petitioner can
demonstrate either cause or actual innocence in order to
overcome a claimed procedural default. Thus, if the
petitioner had no viable cause-and-prejudice or
actual-innocence argument under the generally substantially
similar federal and state standards, then the federal habeas
claim is also subject to immediate dismissal with prejudice
as procedurally defaulted. And again, while Wright included
the cause and prejudice standards in his petition, he set
forth no specific arguments as to how he could demonstrate
cause and prejudice. He merely invokes the terms cause and
prejudice and then argues his double jeopardy claim.
Accordingly, the petition is dismissed.
IS THEREFORE ORDERED that the petition is
DISMISSED with prejudice as untimely.
IS FURTHER ORDERED that a certificate of
appealability is denied.
IS FURTHER ORDERED that the Clerk shall enter