United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
Deanthony Brown, a Nevada state prisoner, has submitted a
pro se Petition for Writ of Habeas Corpus (ECF No.
1-1) pursuant to 28 U.S.C. § 2254. This habeas matter is
before the Court for consideration of Brown's Application
to Proceed In Forma Pauperis (ECF No. 5) as well as
initial review under the Rules Governing Section 2254
Cases. For the reasons discussed below, the Court
orders Brown to resolve the filing fee and show cause why the
petition should not be dismissed with prejudice as untimely.
challenges a conviction and sentence imposed by the Eighth
Judicial District Court for Clark County, Nevada
(“state court”). Brown v. State of
Nevada, No. C-14-300888. In February 2016, Brown entered
an Alford plea to the charges of burglary and
battery with the use of a deadly weapon resulting in
substantial bodily harm. On May 17, 2016, the state district
court entered a judgment of conviction, sentencing Brown to
consecutive sentences of 24-60 months on the burglary count
and 72-180 months on the battery count.
the judgment of conviction was entered, Brown filed a direct
appeal. The Nevada Court of Appeals affirmed
Brown's conviction on October 19, 2016. According to
state court records, no intervening judgment of conviction
has been entered in Brown's criminal case and he did not
file a petition for writ of habeas corpus seeking
about August 11, 2019, Brown mailed or handed to a prison
official for the purpose of mailing, the federal petition
initiating this case. (ECF No. 1-1 at 18.)
Application to Proceed In Forma Pauperis
28 U.S.C. § 1914(a) and the Judicial Conference Schedule
of Fees, a $5.00 filing fee is required to initiate a habeas
action in a federal district court. The court may authorize a
person to begin an action without prepaying fees and costs if
the person submits an IFP application on the approved form
along with the appropriate supporting documentation.
See 28 U.S.C. § 1915(a); LSR 1-1, LSR 1-2.
although Brown submitted the required form, the supporting
documents show he has the financial means to pay the $5.00
filing fee. Thus, Brown does not qualify for a fee waiver.
The Court therefore denies his IFP application. Brown has 45
days from the date of this order to have the filing fee sent
to the Clerk of Court.
Order to Show Cause
to Habeas Rule 4, the assigned judge must examine the habeas
petition and order a response unless it “plainly
appears” that the petitioner is not entitled to relief.
See also Valdez v. Montgomery, 918 F.3d 687, 693
(9th Cir. 2019). This rule allows courts to screen and
dismiss petitions that are patently frivolous, vague,
conclusory, palpably incredible, or false. Hendricks v.
Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (collecting
cases). The Court may also dismiss claims at screening for
procedural defects. See Boyd v. Thompson, 147 F.3d
1124, 1128 (9th Cir. 1998).
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) establishes a one-year period of
limitations for state prisoners to file a federal habeas
petition pursuant to 28 U.S.C. § 2254. The one-year
limitation period, i.e., 365 days, begins to run
from the latest of four possible triggering dates, with the
most common being the date on which the petitioner's
judgment of conviction became final by either the conclusion
of direct appellate review or the expiration of the time for
seeking such review. 28 U.S.C. § 2244(d)(1)(A).
it appears that Brown's conviction became final when the
time expired for filing a petition for writ of certiorari
with the United States Supreme Court on January 17, 2017. The
federal statute of limitations thus began to run the
following day. There is no indication that Brown filed a
petition for writ of certiorari with the United States
Supreme Court, and he did not file a state petition for writ
of habeas corpus. Accordingly, absent another basis for
tolling or delayed accrual, the limitations period expired
365 days later on January 18, 2018, and the petition, filed