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Brown v. Williams

United States District Court, D. Nevada

January 9, 2020

DEANTHONY BROWN, Petitioner,
v.
BRIAN WILLIAMS, et al., Respondents.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.

         Petitioner 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.[1] 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.

         BACKGROUND

         Brown 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.[2] In February 2016, Brown entered an Alford[3] 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.

         Once the judgment of conviction was entered, Brown filed a direct appeal.[4] 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 post-conviction relief.[5]

         On or 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.)

         DISCUSSION

         I. Application to Proceed In Forma Pauperis (“IFP”)

         Under 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.

         Here, 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.

         II. Order to Show Cause

         Pursuant 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).

         The 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).

         Here, 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 nearly ...


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