Chapman v. Myles et al, No. 2:2012cv01804 - Document 7 (D. Nev. 2013)

Court Description: ORDER DISMISSING the petition with prejudice as time-barred. A certificate of appealability is DENIED. The Clerk of Court shall enter final judgment. Signed by Judge Miranda M. Du on 1/25/2013. (Copies have been distributed pursuant to the NEF - SLR)
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Chapman v. Myles et al Doc. 7 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 *** 10 ROCHALONN M. CHAPMAN, 11 Petitioner, 12 13 Case No.2:12-cv-01804-MMD-VCF ORDER v. CAROLYN MYLES, et al., 14 Respondents. 15 16 17 This habeas matter comes before the Court on a sua sponte inquiry into whether 18 the petition is time-barred because it was not filed within the one-year limitation period 19 under 28 U.S.C. § 2244(d)(1). This order follows upon an earlier show cause order (dkt. 20 no. 5) and petitioner’s response (dkt. no. 6) thereto. 21 I. 22 23 24 25 BACKGROUND Petitioner Rochalonn Chapman challenges her Nevada state conviction, pursuant to a jury verdict, of second-degree murder with the use of a deadly weapon. Petitioner’s responses and the online docket records of the state courts reflect the following state and federal procedural history. 26 Petitioner’s conviction was affirmed on direct appeal in a December 6, 2007, 27 decision by the Supreme Court of Nevada. The time period for filing a petition for a writ 28 of certiorari in the United States Supreme Court expired on March 5, 2008. 1 Nearly two years later, on or about January 6, 2010, petitioner filed a motion to 2 modify sentence in the state district court. The court denied the motion on or about 3 February 10, 2010. Petitioner did not appeal the denial of the motion. The time for 4 doing so expired on or about March 12, 2010. Nearly another two years later, on or about November 28, 2011, petitioner filed a 5 6 motion to correct illegal sentence in the state district court. The court denied the 7 motion, and the Supreme Court of Nevada affirmed on appeal. The remittitur issued on 8 August 20, 2012. On or about September 28, 2012, petitioner mailed the federal petition to the 9 10 Clerk of this Court for filing. 11 II. DISCUSSION 12 Pursuant to Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001), the Court sua sponte 13 has raised the question of whether the petition is time-barred for failure to file the 14 petition within the one-year limitation period in 28 U.S.C. § 2244(d)(1).1 15 16 Calculation And Application Of The Federal One-Year Limitation Period 17 Under 28 U.S.C. § 2244(d)(1)(A), the federal one-year limitation period, unless 18 otherwise tolled or subject to delayed accrual, begins running after "the date on which 19 the judgment became final by the conclusion of direct review or the expiration of the 20 time for seeking such direct review." In the present case, the limitation period began 21 running upon expiration of the ninety day time period for filing a petition for certiorari 22 after the state supreme court affirmed the conviction on direct appeal, i.e., after March 23 5, 2008. 24 Petitioner states in her response that “up to this point . . . no one has stated or argued that the case has been time barred or procedurally barred.” Dkt. no. 6, at 8. Regardless of whether or not the two state proceedings initiated by petitioner were subject to a limitations period or a procedural bar, a federal habeas petition undeniably is subject to a one-year limitation period. This Court has questioned the timeliness of the petition sua sponte, which it is authorized to do under the Ninth Circuit authority cited in the text. Petitioner thus must demonstrate that the federal habeas petition is not subject to dismissal for untimeliness. 25 26 27 28 A. 1 2 1 Under 28 U.S.C. § 2244(d)(2), the federal limitation period is statutorily tolled 2 during the pendency of a properly filed application for state post-conviction relief or for 3 other state collateral review. 4 collateral review of the conviction at any time during the one year period from March 5, 5 2008, to March 5, 2009. However, there were no state proceedings seeking 6 Accordingly, absent other tolling or delayed accrual, the federal limitation period 7 expired on March 5, 2009. The federal petition in this matter was not mailed for filing 8 until on or about September 28, 2012, more than three years and six months after the 9 federal limitation period had expired, absent other tolling or delayed accrual. 10 The petition therefore is untimely on its face. 11 In the show-cause response, petitioner provides extensive argument directed to 12 whether the claims in the petition are exhausted and to the procedural default doctrine. 13 However, the show-cause order was directed to neither exhaustion nor procedural 14 default. 15 petition should not be dismissed because it was untimely under the one-year limitation 16 period under § 2244(d)(1). The show-cause order further outlined for petitioner the 17 governing law that is applicable to that issue. Petitioner’s lengthy argument regarding 18 exhaustion and procedural default wholly begs the question and is irrelevant. 2 The show-cause order instead directed petitioner to show cause why the 19 Petitioner’s argument regarding application of the standard of review on the 20 merits under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 21 2254(d), is similarly irrelevant. The question at issue is not adjudication of the claims 22 on the merits under § 2254(d) but is application of the one-year limitation period under § 23 2244(d)(1) that also was adopted pursuant to AEDPA. Again, the show-cause order 24 outlined for petitioner the law that is applicable to the question at issue. 25 26 27 28 2 The Court makes no implicit holding as to whether the claims presented were exhausted and not procedurally defaulted. The only issue before the Court on the current show-cause inquiry is whether the federal petition is untimely in the first instance. This threshold issue cuts across all other potential issues. 3 Petitioner’s argument concerning state statutory provisions applicable to state 1 2 post-conviction relief also is irrelevant. Petitioner is not in state court anymore. 3 Statutes such as N.R.S. 34.500 have no application to this proceeding and clearly have 4 no application to the timeliness issue under § 2244(d)(1). In her response, petitioner underscores, without additional apposite argument, 5 6 the language in § 2244(d)(2) providing that the federal limitation period shall be 7 statutorily tolled during the time that a properly filed application for state post-conviction 8 or other collateral review is pending in the state courts. However, the Court expressly 9 took this statutory tolling into account in the show-cause order. Statutory tolling under § 10 2244(d)(2) does not render the petition timely for two reasons. First, there were no 11 state proceedings pending before the federal limitation period expired on March 5, 12 2009, absent other tolling or delayed accrual over and above § 2244(d)(2) tolling. 13 Second, there were large blocks of time far exceeding one year in the aggregate that 14 were not subject to statutory tolling under § 2244(d)(2). There was a nearly two-year 15 gap between the March 5, 2008, date after which the federal limitation period began 16 running and petitioner’s January 6, 2010, motion to modify sentence in the state district 17 court. 18 expiration of the time for appealing the denial of that motion and petitioner’s November 19 28, 2011, motion to correct illegal sentence in the state district court. Statutory tolling 20 under § 2244(d)(2) thus does not render the federal petition timely. And there was another nearly two-year gap between the March 12, 2010, 21 Petitioner further urges that: (a) a motion to correct illegal sentence may be 22 brought at any time; (b) she is filing a motion to correct illegal sentence “via” a petition 23 for a writ of habeas corpus; (c) she should not be treated any differently than would a 24 federal prisoner filing a motion to correct illegal sentence; and (d) she should not be 25 denied an adequate review of her claims simply because she is late in filing a motion to 26 correct an illegal sentence, which is not subject to time limitations. Petitioner’s premises 27 and logic are both flawed. 28 sentence is in fact subject to a one-year limitation period just like a state prisoner A federal prisoner seeking to file a motion to correct 4 1 seeking federal habeas relief. 28 U.S.C. § 2255(f).3 A state prisoner challenging a 2 state judgment of conviction must file a petition for a writ of habeas corpus in federal 3 court, not a motion to correct sentence; and the one-year limitation period applicable to 4 a federal habeas petition may not be avoided by calling a habeas petition something 5 else. Petitioner’s argument is frivolous. 6 Accordingly, petitioner has not demonstrated that the petition is timely on its face. 7 B. 8 Equitable tolling is appropriate only if the petitioner can show (1) that she has 9 been pursuing her rights diligently, and (2) that some extraordinary circumstance stood 10 in her way and prevented timely filing. Holland v. Florida, 130 S.Ct. 2549, 1085 (2010). 11 Equitable tolling is "unavailable in most cases," Miles v. Prunty, 187 F.3d 1104, 1107 12 (9th Cir.1999), and "the threshold necessary to trigger equitable tolling is very high, lest 13 the exceptions swallow the rule," Miranda v. Castro, 292 F.3d 1063, 1066 (9th 14 Cir.2002)(quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.2000)). The 15 petitioner ultimately has the burden of proof on this “extraordinary exclusion.” 292 F.3d 16 at 1065. 17 extraordinary circumstance and the lateness of her filing. E.g., Spitsyn v. Moore, 345 18 F.3d 796, 799 (9th Cir. 2003).Accord Bryant v. Arizona Attorney General, 499 F.3d 1056, 19 1061 (9th Cir. 2007). Equitable Tolling She accordingly must demonstrate a causal relationship between the 20 Petitioner asserts in the show cause response: (a) that “statistics show” that 21 85% of prisoners are totally illiterate in exercising their rights to access the courts and 22 that she falls in that 85%; (b) that during the time that she and other female inmates 23 were housed on an overflow basis in a men’s institution at “Jean Correctional Center,” 24 she was not afforded “proper” legal forms or research and was not privy to a post- 25 26 27 28 3 A Nevada state court motion to correct sentence is not subject to a limitations period. However, apart from statutory tolling under § 2244(d)(2), the fact that a Nevada motion to correct sentence is not subject to a limitations period has nothing to do with the application of the one-year federal limitation period under § 2244(d)(1). A federal habeas petition indisputably is subject to a one-year limitation period. 5 1 sentencing change in Nevada law upon which she relies; and (c) after being transferred 2 back to her current facility she learned of the change in the law and has pursued relief 3 as forms and research became available but “often times” inmates of the facility are not 4 provided correct forms and research.4 5 At the outset, petitioner neither has presented competent evidence nor has she 6 provided evidence of specific facts as required by the show-cause order. The show- 7 cause order expressly directed: 8 9 10 11 12 13 14 IT FURTHER IS ORDERED that all assertions of fact made by petitioner in response to this show cause order must be detailed, must be specific as to time and place, and must be supported by competent evidence. The Court will not consider any assertions of fact that are not specific as to time and place, that are not made pursuant to a declaration under penalty of perjury based upon personal knowledge, and/or that are not supported by competent evidence filed by petitioner in the federal record. Petitioner thus must attach copies of all materials upon which she bases her argument that the petition should not be dismissed as untimely. Unsupported assertions of fact will be disregarded. Dkt. no. 5, at 5. 15 None of the factual assertions made by petitioner are made pursuant to a 16 declaration under penalty of perjury. Indeed, the body of the show-cause response is 17 not even signed by petitioner. Under the show-cause order, petitioner may not make 18 factual statements in the response that have no supporting evidence. She instead must 19 make a declaration under penalty of perjury and present competent evidence in support 20 of a claim of equitable tolling in response to the show-cause order. The only declaration 21 under penalty of perjury attached with the response affirms that the information in the 22 certificate of service is true and correct. Petitioner has made no declaration under 23 penalty of perjury that the facts asserted in the show-cause response are true and 24 correct. 25 disregarded.” As the show-cause order states: “Unsupported assertions of fact will be 26 27 28 4 See Dkt. no. 6, at 10-11. Petitioner has not argued equitable tolling per se, but the Court has placed her factual arguments in the appropriate place in the time-bar analysis. 6 1 Further, the unsupported generalized factual assertions made are not specific as 2 to time and place as required by the show-cause order. Moreover, even if arguendo 3 accepted as true on their face, the factual assertions made by petitioner do not establish 4 a basis for equitable tolling. 5 With regard to alleged illiteracy, petitioner’s multiple lengthy filings in this matter, 6 as well as her multiple filings in the state courts, clearly belie any claim that she is totally 7 illiterate. 8 provide a basis for equitable tolling. E.g., Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th 9 Cir. 2006). An inmate’s lay status and unfamiliarity with the law otherwise does not 10 With regard to the time at the Jean facility, the material that petitioner attaches 11 with the show-cause response reflects that petitioner was at Jean through March 21, 12 2008. The federal limitation period did not begin running until after March 5, 2008. 13 Petitioner must show not only that she purportedly was subjected to an extraordinary 14 circumstance that constituted an impediment but must demonstrate a causal 15 relationship between the impediment and her untimely filing. E.g., Spitsyn, supra. Even 16 if the Court assumed, arguendo, the existence of an extraordinary circumstance for 16 17 days at the beginning of the limitation period, such a circumstance would not cause a 18 failure to timely file a federal petition one year later on March 5, 2009. Moreover, even if 19 the Court instead followed a “counting-the-days” approach to equitable tolling, rather 20 than requiring a causal nexus, more than a year elapsed between March 21, 2008, and 21 petitioner’s first state filing on January 6, 2010. And nearly another two years elapsed 22 between the conclusion of that proceeding and her second state filing. Thus, even if the 23 Court were to hold that the circumstances at the Jean facility constituted an 24 extraordinary circumstance, the sixteen (16) days involved would not render the federal 25 petition timely.5 26 5 27 28 The Court notes in passing that, based on the response to her kite attached with her show-cause response, petitioner apparently actually is referring to the nowclosed Southern Nevada Correctional Center. The only other facility at Jean, Nevada, is the Jean Conservation Camp, which at least currently is an all-female facility. 7 1 Finally, petitioner’s broad amorphous assertions that, after returning to her 2 current facility, she has pursued relief as forms and research became available but 3 “often times” inmates at the facility are not provided correct forms and research fails to 4 demonstrate either an extraordinary circumstance standing in her way or diligence on 5 her part. A total of nearly four years passed in the aggregate during which petitioner 6 was not pursuing relief in any court. If petitioner had sought relief in this Court, even on 7 an improper form, the Court would have provided her an opportunity to seek relief on 8 the proper form either in the then-current action or in a new action depending on where 9 the limitation period stood at the time. Moreover, under established law, petitioner does 10 not have a right to the active legal assistance of an inmate law clerk who independently 11 analyzes the issues in her case when responding to her requests for research materials. 12 See,e.g., Felix v. McDaniel, 2012 WL 666742, slip op. at *7-8 (D.Nev., Feb. 29, 2012). 13 Petitioner’s prolific filings in this matter demonstrate that she has access to legal 14 research materials. 15 provided “correct” research seeks to base a claim of equitable tolling upon her own 16 unfamiliarity with the law and a lack of active legal assistance in navigating those prison 17 legal resources. Neither establishes a basis for equitable tolling under established law. 18 19 Her generalized assertion that inmates “often times” are not Petitioner therefore has not established a basis for equitable tolling in response to the show-cause order. 20 C. 21 In order to avoid application of the one-year limitation period based upon a claim 22 of actual innocence, petitioner must come forward with new reliable evidence that was 23 not presented at trial tending to establish her innocence, i.e., tending to establish that no 24 juror acting reasonably would have found her guilty beyond a reasonable doubt in light 25 of such evidence. See House v. Bell, 547 U.S. 518 (2006); Lee v. Lampert, 653 F.3d 26 929 (9th Cir. 2011)(en banc).6 27 28 Actual Innocence 6 The United States Supreme Court recently granted a petition for a writ of certiorari in McQuiggen v. Perkins, ___ S.Ct. ___, 2012 WL 3061886 (Oct. 29, 2012), (fn. cont…) 8 1 Petitioner asserts in the show cause response that: (a) there was no weapon 2 found or presented at trial to justify the weapon enhancement conviction; (b) she, a 3 twenty-one year-old mother of two, was convicted without valid reliable evidence 4 despite self-defense allegedly being an inalienable constitutional right; (c) a change to 5 the Nevada weapon enhancement statute adopted after both her offense and her 6 sentencing should have been applied retroactively to her case; and (d) the entire 7 process in her case has constituted a “fundamental miscarriage of justice” that would 8 continue if her claims are not reviewed.7 9 On her first contention above, petitioner urges that just as there can be no 10 murder conviction without a body, there can be no conviction on a weapon 11 enhancement without a weapon being introduced in evidence. 12 assumptions do not suffice for a valid conviction and that she was convicted on the 13 weapon enhancement as to a weapon that “they’re not sure existed.” She maintains that 14 Petitioner’s conclusory and factually unsupported argument regarding the lack of 15 a weapon in evidence does not present new reliable evidence not presented at trial 16 tending to establish that no juror would have found her not guilty of the weapon 17 enhancement beyond a reasonable doubt. Petitioner’s premises and logic again are 18 fundamentally flawed. A defendant can be convicted of murder based upon 19 circumstantial evidence even if the victim’s body cannot be found. 8 20 defendant can be convicted of a weapon enhancement based upon circumstantial 21 22 23 24 25 26 27 28 Similarly, a (… fn. cont.) raising the question of whether the one-year time bar may be avoided on a showing of actual innocence. Resolution of the present show-cause inquiry does not turn upon the outcome in McQuiggen. Ninth Circuit precedent currently recognizes actual innocence as a basis for avoiding the time-bar, and, as discussed in the text, petitioner has not made the requisite showing under that precedent and the actual innocence standard otherwise applicable to overcome a procedural bar. 7 Petitioner once again has not argued actual innocence per se under the governing law outlined in the show-cause order, but the Court has placed her arguments in the appropriate place in the analysis. 8 See,e.g., Vignolo v. Ignacio, No. 2:00-cv-00430-ECR-RAM, #59, at 14-17 (D.Nev., Sept. 4, 2003) (discussing the Nevada corpus delicti rule and sufficiency of the evidence to convict in a murder case where the victim’s body never was recovered). 9 1 evidence even if the weapon is not recovered and introduced into evidence. For 2 example, if a murder victim was killed by a gunshot wound to the chest, it is an entirely 3 permissible, if not compelled, inference that he was killed by a dangerous weapon. An 4 offender may not avoid exposure on a weapon enhancement merely by the expedient of 5 ditching the murder weapon. Petitioner’s conclusory assertion that the murder weapon 6 was not found or introduced at trial thus falls far short of carrying her burden in seeking 7 to avoid the time bar based on a claim of actual innocence. 9 8 On her second contention, petitioner’s bare assertion that she was convicted 9 without valid evidence despite claiming self-defense similarly fails to carry her burden of 10 demonstrating actual innocence. 11 On her third contention, petitioner contends that an amendment to the weapon 12 enhancement statute that changed the length of the sentence to be imposed on the 13 enhancement should be applied retroactively to her case. This legal argument fails to 14 establish actual innocence under the applicable standard. In order to establish actual 15 innocence, a petitioner must establish actual factual innocence, not alleged legal 16 insufficiency. See,e.g., Sawyer v. Whitley, 505 U.S. 333, 339 (1992). A legal argument 17 that a post-offense, post-sentencing amendment to the weapon enhancement statute 18 changing the sentence that could be imposed should have been applied retroactively to 19 petitioner’s case does not establish actual innocence of the weapon enhancement. 10 20 21 Finally, on her fourth contention, petitioner asserts that the failure to consider her claims would result in a fundamental miscarriage of justice. However, judicial 22 9 23 24 25 26 27 28 As discussed supra at 6, the show-cause order expressly directed that petitioner must present competent evidence of specific actual fact in her response to the order. Conclusory argument is insufficient. 10 The Court notes that the Supreme Court of Nevada held that the statute does not apply retroactively to offenders who committed their crimes prior to the effective date of the amendment. SeeState v.Second Judicial District Court (Pullin), 124 Nev. 564, 188 P.3d 1079 (2008). The Supreme Court of Nevada of course is the final arbiter of Nevada state law. In any event, a legal argument under either state or federal law that the provisions of the statute changing the length of the sentence to be imposed should be applied retroactively does not tend to establish actual factual innocence of the weapon enhancement itself. 10 1 consideration of procedurally barred claims on the premise that to do so is necessary to 2 avoid a fundamental miscarriage of justice is limited to demonstrated claims of actual 3 innocence. See,e.g., Johnson v. Knowles, 541 F.3d 933 (9th Cir. 2008). A petitioner 4 who asserts only constitutional claims without establishing actual innocence under the 5 narrow gateway required to establish such a claim fails to satisfy the standard for the 6 miscarriage of justice exception. 541 F.3d at 937. As discussed above, petitioner has 7 not even begun to shoulder her burden of demonstrating actual innocence under the 8 demanding standard for such claims. Petitioner accordingly has failed to demonstrate in response to the show-cause 9 10 order that the petition should not be dismissed with prejudice as time-barred. 11 III. IT IS THEREFORE ORDERED that the petition shall be DISMISSED with 12 13 CONCLUSION prejudice as time-barred. 14 IT IS FURTHER ORDERED that a certificate of appealability is DENIED, as 15 jurists of reason would not find the district court’s dismissal of the petition as time- 16 barred, following issuance of a show-cause order and consideration of petitioner’s 17 response thereto, to be debatable or wrong. Petitioner has presented neither competent 18 evidence nor specific evidence as directed by the show-cause order. Her conclusory 19 factual and legal arguments in any event do not present a viable basis for overcoming 20 one-year statute of limitation, for the reasons discussed herein. 21 IT IS FURTHER ORDERED that, pursuant to Rule 4 of the Rules Governing 22 Section 2254 Cases, the Clerk of Court shall provide respondents with notice of the 23 action taken herein by effecting informal electronic service of the order and judgment 24 upon Catherine Cortez Masto as per the Clerk’s current practice, together with 25 regenerating notices of electronic filing to her office of the prior filings herein. 26 response is required from respondents, other than to respond to any orders of a 27 reviewing court. 28 /// 11 No 1 2 The Clerk of Court shall enter final judgment accordingly, in favor of respondents and against petitioner, dismissing this action with prejudice. 3 4 DATED THIS 25th day of January 2013. 5 6 7 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12