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Robins v. Gittere

United States District Court, D. Nevada

December 6, 2019

DAMIEN ROBINS, Petitioner,
v.
WILLIAM GITTERE, et al., Respondents.

          ORDER

          MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         The Court directed Petitioner to show cause why the Court should not dismiss this action as untimely. (ECF No. 3.) Petitioner has filed a showing of cause (ECF No. 8), but the Court is not persuaded. The Court will dismiss the action as untimely.

         The Court also directed Petitioner to file an amended petition to raise claims for relief. (ECF No. 3.) Petitioner has not filed an amended petition within the allotted time. As an alternative basis for dismissal, the Court would dismiss this action for failure to file an amended petition.

         Petitioner has filed an application to proceed in forma pauperis. (ECF No. 10.) Petitioner has enough money to pay the filing fee. However, the Court will not require payment of the fee because the Court is dismissing the action.

         II. BACKGROUND

         The Nevada Court of Appeals decided Petitioner's direct appeal on February 27, 2018. (ECF No. 3 at 2). Under 28 U.S.C. § 2244(d)(1)(A), Petitioner's judgment of conviction became final at the expiration of time to petition the Supreme Court of the United States for a writ of certiorari, on May 29, 2018, taking into account the Memorial Day holiday. No. time was tolled under 28 U.S.C. § 2244(d)(2) because Petitioner filed no post-conviction habeas corpus petition in the state courts. The one-year period of § 2244(d)(1) expired at the end of May 29, 2018. Petitioner mailed his initial Petition under 28 U.S.C. § 2254 to the Court no earlier than August 11, 2019. This occurred after the one-year period expired, therefore the Petition is untimely.

         III. DISCUSSION

         A. Petitioner's Calculations of Time are Incorrect

         Petitioner disputes the Court's time calculations. He states that the Nevada Supreme Court issued the remittitur at the end of his direct appeal on May 29, 2018. He then argues that he had 90 days from that date to petition the Supreme Court of the United States for a writ of certiorari. Under Petitioner's calculations, his judgment of conviction became final on August 27, 2018. Consequently, Petitioner argues, his Petition was timely because it was dated August 11, 2019, and postmarked August 12, 2019, before the expiration of the one-year period.

         Petitioner's argument is factually incorrect. The Nevada Supreme Court did not issue the remittitur on May 29, 2018. The Nevada Supreme court issued the remittitur on March 26, 2018. See Robins v. State, Nos. 71540 and 71540-COA, http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=40762&combined=true (last visited December 4, 2019). Even if the 90-day period for filing a petition for a writ of certiorari ran from issuance of the remittitur, that period would have expired at the end of June 25, 2018, taking a Sunday into account. The one-year period of 28 U.S.C. § 2244(d)(1) would have expired at the end of June 25, 2019. The federal habeas corpus Petition still would be untimely.

         Petitioner's argument is also legally incorrect. Supreme Court Rule 13(3) states, in relevant part, “The time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate (or its equivalent under local practice).” The Nevada Supreme Court's remittitur, which is the equivalent to a mandate, thus does not affect the date that Petitioner's judgment of conviction became final. The 90-day period to petition for a writ of certiorari ran from the decision of the Nevada Court of Appeals on February 27, 2018. Petitioner has not shown that the Court's calculations are incorrect. The Petition is untimely, and the Court dismisses the action.

         B. Even If Petitioner is Correct, Any Amended Petition Would Not Relate Back and Would Be Untimely

         The initial Petition contained no claims for relief and no allegations of fact. Petitioner left those parts of the Petition form blank. (ECF No. 4 at 3-8). The Court thus directed Petitioner to file an amended petition. (ECF No. 3 at 4). Petitioner has not yet filed an amended petition. Even if Petitioner's calculations were correct, any amended petition that he could file now would be filed after the expiration of the one-year period. The claims in the amended petition would need to relate back to the initial petition to be timely. Relation back is allowed “[s]o long as the original and amended petitions state claims that are tied to a common core of operative facts.” Mayle v. Felix, 545 U.S. 644, 664 (2005). ...


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