United States District Court, D. Nevada
M. NAVARRO, UNITED STATES DISTRICT JUDGE
has submitted an application to proceed in forma
pauperis (ECF No. 1), a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, and a request for
appointment of counsel. The application is moot because
petitioner has paid the filing fee. The court has reviewed the
petition under Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts. Petitioner will
need to show cause why the court should not dismiss the
action as untimely. The court denies the request for
appointment of counsel because petitioner first needs to show
has limited the time in which a person can petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254:
A 1-year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursuant
to the judgment of a State court. The limitation period shall
run from the latest of-
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2244(d)(1). If the judgment is appealed,
then it becomes final when the Supreme Court of the United
States denies a petition for a writ of certiorari or when the
time to petition for a writ of certiorari expires.
Jimenez v. Quarterman, 555 U.S. 113, 119-20 (2009).
See also Sup. Ct. R. 13(1). Any time spent pursuing
a properly filed application for state post-conviction review
or other collateral review does not count toward this
one-year limitation period. 28 U.S.C. § 2244(d)(2). An
untimely state post-conviction petition is not
“properly filed” and does not toll the period of
limitation. Pace v. DiGuglielmo, 544 U.S. 408, 417
2244(d) is subject to equitable tolling. Holland v.
Florida, 560 U.S. 631, 645 (2010). “[A]
‘petitioner' is ‘entitled to equitable
tolling' only if he shows ‘(1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way' and
prevented timely filing.” Id. at 649 (quoting
Pace, 544 U.S. at 418).
innocence can excuse operation of the statute of limitations.
McQuiggin v. Perkins, 569 U.S. 383, 386-87 (2013).
“‘[A] petitioner does not meet the threshold
requirement unless he persuades the district court that, in
light of the new evidence, no juror, acting reasonably, would
have voted to find him guilty beyond a reasonable
doubt.'” Id. at 386 (quoting Schlup v.
Delo, 513 U.S. 298, 329 (1995)). “‘[A]ctual
innocence' means factual innocence, not mere legal
insufficiency.” Bousley v. United States, 523
U.S. 614, 623 (1998). “In cases where the Government
has forgone more serious charges in the course of plea
bargaining, petitioner's showing of actual innocence must
also extend to those charges.” Id. at 624.
petitioner effectively files a federal petition when he
delivers it to prison officials to be forwarded to the clerk
of the court. Rule 3(d), Rules Governing Section 2254 Cases
in the United States District Courts.
court can raise the issue of timeliness on its own motion.
Day v. McDonough, 547 U.S. 198, 209 (2006);