Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bass v. Baker

United States District Court, D. Nevada

November 21, 2019

HARRISTON LEE BASS, JR., Petitioner,
v.
REGINA BAKER, et al., Respondents.

          ORDER

          MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Petitioner Harriston Lee Bass, Jr., is a pro se Nevada state prisoner who initiated this habeas corpus proceeding under 28 U.S.C. § 2254. Currently before the Court is Bass's two-part response (“Response”) (ECF Nos. 8, 9) to the Court's Order to Show Cause (“OSC”) (ECF No. 7), [1] as well as his Motion for Appointment of Counsel (ECF No. 5) and Motion to Exceed Page Limit (ECF No. 6). For the reasons discussed below, the Court dismisses his Amended Petition for Writ of Habeas Corpus (ECF No. 4) with prejudice as untimely and denies the remaining motions.

         II. BACKGROUND

         Bass challenges a 2008 conviction and sentence imposed by the Eighth Judicial District Court for Clark County (“state court”), pursuant to a jury verdict, of one count of second-degree murder and 55 drug related counts. (ECF No. 4 at 2, 91.) See also Bass v. State of Nevada, Case Nos. 51822, 53072 (Nev. Sup. Ct.), Direct Appeal Ord. of Affirmance, dated May 18, 2010.[2] Bass appealed to the Nevada Supreme Court but was not successful. See Id. His conviction became final on September 6, 2011, when the United States Supreme Court denied reconsideration of his petition for writ of certiorari.

         Bass filed a state petition for writ of habeas corpus on February 14, 2012, seeking post-conviction relief (“state petition”). The state petition was denied. Bass appealed. The Nevada Supreme Court affirmed the denial of relief and issued a remittitur on August 14, 2018. See Bass v. State of Nevada, Case No. 70934 (Nev. Sup. Ct.), State Petition Ord. of Affirmance, dated July 20, 2018 (“post-conviction appeal”).

         On July 19, 2019, Bass filed his original federal habeas petition in this case. (ECF No. 1.) This Court directed Bass to file an amended petition on the Court's form or in substantial compliance with the Court's form. (ECF No. 3.) The Court also instructed Bass to refrain from lengthy factual or legal argument. (Id.) Bass filed an amended petition (ECF No. 4), but it failed to follow the Court's instructions.[3]

         The Court issued the OSC (ECF No. 7) on September 26, 2019, ordering Bass to show cause why his petition should not be dismissed with prejudice as untimely under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d)(1)(A):

The AEDPA statute of limitations began to run the day after Petitioner's conviction became final, or on September 7, 2011, and was tolled during the pendency of Petitioner's state postconviction petition, from February 14, 2012, until August 14, 2018. The clock began to run again on August 15, 2018. Before petitioner initiated his state postconviction proceedings, 160 days elapsed on the federal clock. Accordingly, once remittitur issued on the state postconviction proceedings, the statute of limitations expired 205 days later, or on March 7, 2019. This petition filed no earlier than July 7, 2019, is therefore untimely on its face. Petitioner must show cause why the petition should not be dismissed as time-barred.

(ECF No. 7 at 3:11-19.) The Court warned: “If Petitioner responds but fails to show with specific, detailed and competent evidence why the petition should not be dismissed as untimely, the action will be dismissed with prejudice.” (Id. at 4:24-26.)

         Bass filed a two-part response (ECF Nos. 8, 9) asserting there “is no time bar.” (ECF No. 8 at 1.) He states that the Nevada Supreme Court issued its order of affirmance in the post-conviction appeal on July 20, 2018, and he filed his original federal petition on July 19, 2019. Bass therefore claims his federal petition was filed within AEDPA's one-year limitation.

         III. DISCUSSION

         AEDPA establishes a one-year period of limitations for federal habeas petitions filed by state prisoners under 28 U.S.C. § 2254. The one-year limitation period begins to run from the latest of four possible triggering dates, with the most common being the date on which the petitioner's state court conviction became final (by either the conclusion of direct appellate review or the expiration of time for seeking such review). See 28 U.S.C. § 2244(d)(1)(A). If the petitioner seeks direct review from the highest state court and then files a petition for writ of certiorari with the United States Supreme Court, the conviction becomes final when the United States Supreme Court finally denies the petition. See Caspari v. Bohlen, 510 U.S. 383, 390 (1994). If a petitioner fails to file a federal petition before the expiration of the statute of limitations, the petitioner is barred from proceeding on his claims unless tolling applies. See generally Chaffer v. Prosper, 592 F.3d 1046, 1048-49 (9th Cir. 2010) (per curiam).

         The AEDPA one-year limitation period is tolled while a “properly filed application” for post-conviction relief is pending before a state court. 28 U.S.C. § 2244(d)(2). A state post-conviction petition is “pending” as long as the ordinary state collateral review process is in continuance. See Carey v. Saffold, 536 U.S. 214, 219-20 (2002). No statutory tolling is allowed for the time period between the finality of a direct appeal and the filing of a state petition for post-conviction relief or other collateral review because no state petition is pending during that time. See Nino v. Galaza, 183 F.3d 1003, 1006-07 (9th Cir. 1999); Rasberry v. Garcia, 448 F.3d 1150, 1153 n.1 (9th ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.