-PAL Robles v. Scillia et al, No. 2:2010cv00820 - Document 17 (D. Nev. 2011)
Court Description: ORDER Granting 13 Motion to Dismiss. The federal petition for a writ of habeas corpus is DISMISSED as untimely. FURTHER ORDERED that petitioner is DENIED A CERTIFICATE OF APPEALABILITY. FURTHER ORDERED that clerk SHALL ENTER JUDGMENT ACCORDINGLY. Signed by Judge James C. Mahan on 6/21/11. (Copies have been distributed pursuant to the NEF - MMM)
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-PAL Robles v. Scillia et al Doc. 17 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 10 11 12 13 14 ARTHUR ROBLES, ) ) Petitioner, ) ) vs. ) ) ANTHONY SCILLIA, et al., ) ) Respondents. ) ____________________________________/ 2:10-cv-00820-JCM-PAL ORDER 15 16 This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, 17 by a Nevada state prisoner. Before the court is respondents’ motion to dismiss the amended petition. 18 (ECF No. 13). 19 I. Procedural History 20 On October 29, 1999, a judgment of conviction was entered against petitioner, pursuant to a 21 jury verdict of guilt, of the crime of first degree murder with the use of a deadly weapon. (Exhibit 22 1).1 Petitioner filed a notice of appeal on November 23, 1999. (Exhibit 2). On June 12, 2001, the 23 Nevada Supreme Court entered an order of affirmance. (Exhibit 5). Remittitur issued on July 10, 24 2001. (Exhibit 6). 25 26 1 The exhibits referenced in this order are found in the court’s record at ECF No. 13. Dockets.Justia.com 1 Nearly eight years later, on May 15, 2009, petitioner filed a pro per habeas petition in the 2 state district court. (Exhibit 7). On July 30, 2009, the state district court filed its findings of fact, 3 conclusions of law, and order denying the petition. (Exhibit 8). Petitioner appealed and, on March 4 10, 2010, the Nevada Supreme Court denied the appeal, finding that the petition was untimely 5 pursuant to NRS 726(1). (Exhibit 10). Remittitur issued on June 4, 2010. (Exhibit 11). 6 This court received petitioner’s federal habeas petition on May 28, 2010. (ECF No. 1-1). 7 Petitioner failed to complete the portion of the habeas petition form regarding when he submitted his 8 petition to prison officials for mailing. The petition was signed on May 17, 2010. (ECF No. 1-1, at 9 p. 15). Pursuant to the “mailbox rule,” federal courts deem the filing date of a document (in a federal 10 action) as the date that it was given to prison officials for mailing. Houston v. Lack, 487 U.S. 266, 11 270 (1988). The earliest date that the petition could have been mailed was May 17, 2010, the date 12 that the petition was signed. The court therefore deems the date of filing of the original federal 13 habeas petition as May 17, 2010. Petitioner’s amended complaint was filed on June 30, 2010. (ECF 14 No. 6). Respondents’ motion to dismiss is now before the court. 15 II. Motion to Dismiss (ECF No. 13) 16 A. Federal Habeas Petition is Untimely 17 The Antiterrorism and Effective Death Penalty Act (AEDPA) amended the statutes 18 controlling federal habeas corpus practice to include a one-year statute of limitations on the filing of 19 federal habeas corpus petitions. With respect to the statute of limitations, the habeas corpus statute 20 provides: 21 22 (d)(1) 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– 23 24 (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; 25 26 2 1 (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; 2 3 (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 4 5 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 6 7 (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitations under this subsection. 8 9 10 11 12 28 U.S.C. § 2244(d). The United States Supreme Court has held that a habeas petitioner’s state post-conviction 13 petition, which was rejected by the state court as untimely under the statute of limitations, is not 14 “properly filed,” within the meaning of the statutory tolling provision of the AEDPA limitations 15 period. Pace v. DiGuglielmo, 544 U.S. 408, 412-16 (2005). The Court in Pace v. DiGuglielmo held 16 as follows: 18 In common understanding, a petition filed after a time limit, and which does not fit within any exceptions to that limit, is no more “properly filed” than a petition filed after a time limit that permits no exception. 19 *** 17 20 21 22 23 What we intimated in Saffold we now hold: When a postconviction petition is untimely under state law, “that [is] the end of the matter” for the purposes of § 2244(d)(2). Id. at 413-14. In the present case, petitioner’s judgment of conviction was entered on October 29, 1999. 24 (Exhibit 1). The Nevada Supreme Court’s order of affirmance on direct review was filed June 12, 25 2001. (Exhibit 5). Petitioner had ninety days from that date, until September 10, 2001, to seek 26 3 1 certiorari with the United States Supreme Court. Bowen v. Roe, 188 F.3d 1157, 1158-60 (9th Cir. 2 1999). Petitioner’s conviction became final on September 10, 2001, which is 90 days after the 3 Nevada Supreme Court filed its order of affirmance. Nevada Supreme Court Rules, Rule 13(1). The 4 AEDPA one-year statute of limitations began to run on September 11, 2001. Petitioner had until 5 September 11, 2002, to file his federal habeas petition, unless time was otherwise tolled by federal 6 statute. 7 On May 15, 2009, petitioner filed a state habeas petition in state district court. (Exhibit 7). 8 From September 11, 2001, until the date petitioner filed his habeas petition in state court on May 15, 9 2009, nearly eight years of untolled time had elapsed. Because petitioner had no properly filed 10 application for state post-conviction or other collateral review pending during this time period, the 11 time is not statutorily tolled. 28 U.S.C. § 2244(d)(2). 12 The state district court denied petitioner’s untimely habeas petition on July 30, 2009. 13 (Exhibit 8). Petitioner appealed the denial of his state habeas petition. On March 10, 2010, the 14 Nevada Supreme Court affirmed the state district court’s decision, ruling that the petition was 15 untimely pursuant to NRS 34.726. (Exhibit 10). Remittitur issued on June 4, 2010. (Exhibit 11). 16 A habeas petitioner’s state post-conviction petition, which was rejected by the state court as 17 untimely under the statute of limitations, is not “properly filed,” within the meaning of the statutory 18 tolling provision of the AEDPA limitations period. Pace v. DiGuglielmo, 544 U.S. 408, 412-16 19 (2005). Because the Nevada Supreme Court held that petitioner’s state habeas petition was untimely 20 pursuant to NRS 34.726, the petition was not a “properly filed application” that would toll the statute 21 of limitations under 28 U.S.C. § 2244(d)(2). Thus, the time period while petitioner’s state habeas 22 petition was pending in state court, from August 10, 2009 to June 4, 2010, is not tolled under 28 23 U.S.C. § 2244(d)(2). During this time period, nearly ten months of untolled time elapsed. 24 25 26 4 1 Petitioner signed and dispatched his federal habeas corpus petition on May 17, 2010. A total 2 of over eight years, which were not tolled by statute, elapsed before petitioner filed his federal habeas 3 petition. The federal petition is untimely under the one-year AEDPA statute of limitations. 4 B. Equitable Tolling 5 The United States Supreme Court has held that the AEDPA’s statute of limitations, at 28 6 U.S.C. “§ 2244(d) is subject to equitable tolling in appropriate cases.” Holland v. Florida, 130 S.Ct. 7 2549, 2560 (2010). The Supreme Court reiterated that “a petitioner is entitled to equitable tolling 8 only if he shows: ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary 9 circumstance stood in his way’ and prevented timely filing.” Holland, 130 S.Ct. at 2562 (quoting 10 Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The Supreme Court made clear that the “exercise 11 of a court’s equity powers . . . . must be made on a case-by-case basis,” while emphasizing “the need 12 for flexibility” and “avoiding [the application of] mechanical rules.” Holland, 130 S.Ct. at 2563 13 (internal quotations and citations omitted). In making a determination on equitable tolling, courts 14 must “exercise judgment in light of prior precedent, but with awareness of the fact that specific 15 circumstances, often hard to predict in advance, could warrant special treatment in an appropriate 16 case.” Holland, 130 S.Ct. at 2563. 17 In the opposition, petitioner has failed to demonstrate that he diligently pursued his rights and 18 that an extraordinary circumstance prevented him from filing a timely federal petition. Petitioner is 19 not entitled to equitable tolling and the petition must be dismissed as untimely. 20 III. Certificate of Appealability 21 In order to proceed with an appeal, petitioner must receive a certificate of appealability. 28 22 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951 23 (9th Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). Generally, a 24 petitioner must make “a substantial showing of the denial of a constitutional right” to warrant a 25 certificate of appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 26 5 1 (2000). “The petitioner must demonstrate that reasonable jurists would find the district court's 2 assessment of the constitutional claims debatable or wrong.” Id. (quoting Slack, 529 U.S. at 484). In 3 order to meet this threshold inquiry, the petitioner has the burden of demonstrating that the issues are 4 debatable among jurists of reason; that a court could resolve the issues differently; or that the 5 questions are adequate to deserve encouragement to proceed further. Id. This court has considered 6 the issues raised by petitioner, with respect to whether they satisfy the standard for issuance of a 7 certificate of appealability, and determines that none meet that standard. The court will therefore 8 deny petitioner a certificate of appealability. 9 IV. Conclusion 10 11 12 13 14 15 16 IT IS THEREFORE ORDERED that respondents’ motion to dismiss (ECF No. 13) is GRANTED and the federal petition for a writ of habeas corpus is DISMISSED as untimely. IT IS FURTHER ORDERED that petitioner is DENIED A CERTIFICATE OF APPEALABILITY. IT IS FURTHER ORDERED that the clerk SHALL ENTER JUDGMENT ACCORDINGLY. 21st Dated this ______ day of June, 2011. 17 18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 6
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