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 (ECF No. 1-1) pursuant to 28 U.S.C. §
2254. This matter comes before the Court on a sua
sponte inquiry into whether the petition is time-barred,
as well as on Pamplin's Motion for Appointment of Counsel
(ECF No. 1-2) and Motion for Stay and Abeyance (ECF No. 4).
This order follows upon the Court's order to show cause
why the petition should not be dismissed as untimely. (ECF
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, No. 02C184760. He 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, No.
3:08-cv-0007-RCJ-VPC. On January 14, 2011, the court entered
an order and judgment dismissing the petition as unexhausted
and denying a certificate of appealability. Pamplin appealed,
and the Ninth Circuit declined to issue a certificate of
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.
filed his federal petition on October 25, 2019. (ECF No.
1-1.) Three days later, the Court issued an order to show
cause (“OSC”) why Pamplin's petition should
not be dismissed as untimely. (ECF No. 3.) Under 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. § 2244(d)(2).
stated that Pamplin's conviction became final when the
time expired for filing a notice of appeal with the Nevada
appellate courts on November 4, 2002. The federal statute of
limitations expired one year later on November 4, 2003.
Although Pamplin filed a state petition in August 2018, it
was filed nearly 15 years after the expiration of the federal
limitation period and thus could not have tolled an already
expired deadline. The OSC clearly stated that Pamplin's
federal petition, filed nearly 16 years later, is untimely on
its face absent another basis for tolling or delayed accrual.
Pamplin was therefore ordered to show cause in writing within
30 days why the petition should not be dismissed with
prejudice as time-barred under § 2244(d).
date, Pamplin has not responded to the OSC. However, on
October 30, 2019, he filed a motion requesting a stay and
abeyance pursuant to Rhines v. Weber, 544 U.S. 269
(2005). (ECF No. 4) Federal district courts are authorized to
stay an unexhausted petition in “limited
circumstances” to allow a petitioner to present
unexhausted claims to the state court without losing his
right to federal habeas review due to the relevant one-year
statute of limitations. Rhines, 544 U.S. at 273-75.
However, exhaustion will not cure an expired statute of
limitations. In other words, even if Pamplin returned to
state court to exhaust his claims, his petition would still
be time-barred upon his return to federal court.
filed the current petition nearly 16 years after the statute
of limitations expired. He has not alleged or established
that his circumstances prevented him from filing a federal
petition. He has not asserted an entitlement to equitable
tolling or delayed accrual. He has not argued that he is
actually innocent, much less come forward with new reliable
evidence tending to establish actual factual innocence.
Accordingly, the petition, filed more than a decade after the
expiration of the statute of limitations, is untimely and
must be dismissed.
accordance with the foregoing, it is therefore ordered that
Petitioner John D. Pamplin's Petition for Writ of Habeas
Corpus (ECF No. 1-1) is dismissed with prejudice as untimely.
further ordered that Petitioner is denied a certificate of
appealability, as jurists of reason would not find the
Court's dismissal of the petition as untimely to be
debatable or wrong.
further ordered that Pamplin's Motion for Appointment of
Counsel (ECF No. 1-2) and Motion for Stay and Abeyance (ECF
No. 4) are denied as moot.
further ordered that, pursuant to Rule 4 of the Rules
Governing Section 2254 Cases, the Clerk of Court will add
Nevada Attorney General Aaron D. Ford as counsel for
Respondents and informally serve the Nevada Attorney General
by directing a notice of electronic filing of this order to
his office. No. response is required from Respondents other
than to respond to any orders of a reviewing court.
Clerk of Court is further directed to enter final judgment
accordingly, dismissing this action ...