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Holmes v. Warden

United States District Court, D. Nevada

November 1, 2019

KEVIN RAY HOLMES, Petitioner,
v.
WARDEN, et al., Respondents.

          ORDER

          LARRY R. HICKS, UNITED STATES DISTRICT JUDGE

         This pro se habeas petition comes before the Court for initial review of the amended petition and following petitioner's response to the order to show cause why the petition should not be dismissed as untimely.

         Petitioner asserts that in 2005, the Parole Board conducted his parole hearing five months late, leading to delayed commencement and/or parole on his consecutive sentences. (See ECF No. 5 at 3). Petitioner asserts that this violated his rights to due process and equal protection and against ex post facto. (Id.) The claim may be cognizable at least to the extent that the delayed parole hearing resulted in the delayed commencement of petitioner's defined consecutive term. However, while at least partially cognizable, the claim is untimely, and the petition must therefore be dismissed.

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) established a one-year period of limitations for federal habeas petitions filed by state prisoners. The limitations period runs from the latest of

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). The 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).

         The only date from which to measure the timeliness of petitioner's claim in this case is “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” Cf. Redd v. McGrath, 343 F.3d 1077, 1084 (9th Cir. 2003). Petitioner has known, or through the exercise of due diligence should have known, the basis of his claim since November 2005, when the parole board conducted his hearing allegedly five months late. As such, the statute of limitations expired in late 2006 or early 2007 and the petition filed in this court - thirteen years later - is untimely on its face.

         Petitioner argues that he should receive equitable tolling. Equitable tolling is appropriate only if the petitioner can show that: (1) he has been pursuing his rights diligently, and (2) 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 accordingly must demonstrate a causal relationship between the extraordinary circumstance and the lateness of her 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).

         First, petitioner argues that his claim was not available when litigating his first state and federal postconviction petitions, which challenged the underlying judgment of conviction. But the Court did not and does not suggest petitioner was required to raise this claim in his petitions challenging his judgment of conviction. This argument is therefore beside the point.

         Second, petitioner argues that when his claim first arose, he was represented by counsel in his federal habeas matter and that he could not have filed a petition while represented by counsel. Petitioner's assertion that having counsel in one matter prevented him from filing a petition on his own behalf in another matter is without merit. Furthermore, on January 7, 2009, petitioner filed a state petition that asserted the facts underlying the instant petition. (See ECF No. 5-1 at 106-16). Thus, to the extent petitioner asserts that he didn't understand he could file his own petition, he was able to and did in fact do so by 2009 - a full decade before initiating the instant federal habeas petition.

         Third, petitioner argues that he appealed the denial of his 2009 petition but no appeal was ever logged. To the extent that petitioner intends to suggest that he was lulled into inaction by what he thought was a pending appeal of his state petition -- even assuming this could constitute a basis for tolling - this fact would not render the instant petition timely. Petitioner has not shown that he was diligent with respect to pursuing what he believed was an appeal of ...


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