-VPC Tjeltveit v. McDaniel, No. 3:2011cv00163 - Document 7 (D. Nev. 2011)
Court Description: THEREFORE IS ORDERED that the petition is DISMISSED with prejudice as time-barred. FURTHER ORD P's # 3 Motion for appointment of counsel is DENIED. FURTHER ORD that a certificate of appealability is DENIED. FURTHER ORD the Clerk additio nally shall serve a copy of this order, the judgment, and as attachments to this order ## 1, 5 and 6 upon Rs by effecting informal electronic service of the order and judgment upon AG. No response is required from Rs, other than to respond to any or ders of a reviewing court. The Clerk of Court shall enter final judgment accordingly, in favor of Rs and against P, dismissing this action with prejudice. The Clerk shall provide P a copy of # 6 with this order along with a copy of ## 1 and 6 from No. 3:08-cv-00054. Signed by Chief Judge Robert C. Jones on 6/20/2011. ( Attachments: # 1 Attachment "#1", # 2 Attachment "#5", # 3 Attachment "#6" )(Copies have been distributed pursuant to the NEF - DRM) Modified on 6/20/2011 to reflect NEF regenerated to effect electronic service upon AG(DRM).
Download PDF
<![CDATA[
-VPC Tjeltveit v. McDaniel Doc. 7 Att. 2 Case 3:11-cv-00163-RCJ -VPC Document 5 Filed 04/25/11 Page 1 of 4 1 2 3 4 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 5 6 7 MATTHEW TJELTVEIT, 8 Petitioner, 3:11-cv-00163-RCJ-VPC 9 vs. 10 11 12 ORDER E.K. MCDANIEL, et al., Respondents. 13 14 This habeas matter under 28 U.S.C. § 2254 comes before the Court for initial review 15 under Rule 4 of the Rules Governing Section 2254 Cases. Following initial review, it appears 16 that the petition is subject to dismissal with prejudice as time-barred for failure to file the 17 petition within the one-year limitation period in 28 U.S.C. § 2244(d)(1). Petitioner therefore 18 will be directed to show cause why the petition should not be dismissed as time-barred. Background 19 20 According to the allegations of the petition, petitioner Matthew Tjeltveit challenges his 21 Nevada state conviction, pursuant to a jury verdict, of first-degree murder with the use of a 22 deadly weapon. 23 The Court takes judicial notice of the state court procedural history reflected in the 24 January 13, 2011, Order of Affirmance, in No. 55773 in the Supreme Court of Nevada, which 25 is available both on Westlaw and on the online docket records of the state supreme court.1 26 The judgment of conviction was filed on June 7, 2007. 27 1 28 Tjeltveit v. W arden, 2011 W L 222503 (Nev., Jan. 13, 2011). The order can be accessed online, at http://www.nevadajudiciary.us/index.php/suprem ecourt, under the “Case Search” link in the upper right. Dockets.Justia.com Case 3:11-cv-00163-RCJ -VPC Document 5 1 2 Filed 04/25/11 Page 2 of 4 No notice of appeal was filed within the thirty-day time period for filing a direct appeal. The time to do so expired on Monday, July 9, 2007. 3 On November 7, 2007, petitioner filed a proper person notice of appeal. The state 4 supreme court dismissed the untimely appeal for lack of jurisdiction on December 27, 2007; 5 and the remittitur issued on January 22, 2008. 6 On August 5, 2008, petitioner filed a state post-conviction petition. On January 13, 7 2011, the state supreme court affirmed the dismissal of the petition on the basis that the 8 petition was untimely. The remittitur issued on February 7, 2011. 9 10 On or about March 1, 2011, petitioner mailed the federal petition to the Clerk of this Court for filing. Discussion 11 12 Pursuant to Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001), the Court sua sponte raises 13 the question of whether the petition is time-barred for failure to file the petition within the one- 14 year limitation period in 28 U.S.C. § 2244(d)(1). 15 Under 28 U.S.C. § 2244(d)(1)(A), the federal one-year limitation period, unless 16 otherwise tolled, begins running after "the date on which the judgment became final by the 17 conclusion of direct review or the expiration of the time for seeking such direct review." In the 18 present case, the limitation period, unless tolled or subject to a different starting date on some 19 other basis, thus began running on the face of the present record after the expiration of the 20 time period for filing a direct appeal, i.e., after July 9, 2007. Absent tolling or a different 21 accrual date, the one-year limitation period would expire one year later, on July 9, 2008. 22 Under 28 U.S.C. § 2244(d)(2), the federal one-year limitation period is statutorily tolled 23 during the pendency of a properly filed application for state post-conviction relief. However, 24 an untimely state post-conviction petition is not “properly filed;” and it thus does not statutorily 25 toll the federal limitation period. Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 26 L.Ed.2d 669 (2005). Petitioner’s state post-conviction petition was denied as untimely, and 27 the petition therefore did not statutorily toll the federal limitation period under Section 28 2244(d)(2). -2- Case 3:11-cv-00163-RCJ -VPC Document 5 Filed 04/25/11 Page 3 of 4 1 Absent other tolling, or a later accrual date, the federal limitation period therefore 2 expired on July 9, 2008. Petitioner did not mail the federal petition until March 1, 2011, two 3 years, seven months, and twenty days after the limitation period had expired, absent tolling 4 or a later accrual date. The petition therefore is untimely on the face of the record. 5 6 Petitioner therefore must show cause in writing why the petition should not be dismissed with prejudice as time-barred. 7 In this regard, petitioner is informed that the one-year limitation period may be equitably 8 tolled. Equitable tolling is appropriate only if the petitioner can show "‘(1) that he has been 9 pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' 10 and prevented timely filing." Lawrence v. Florida, 549 U.S.327, 336, 127 S.Ct. 1079, 1085, 11 166 L.Ed.2d 924 (2007)(quoting Pace, 544 U.S. at 418, 125 S.Ct. at 1814). Equitable tolling 12 is "unavailable in most cases," Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999), and "the 13 threshold necessary to trigger equitable tolling is very high, lest the exceptions swallow the 14 rule," Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.2002)(quoting United States v. 15 Marcello, 212 F.3d 1005, 1010 (7th Cir.2000)). The petitioner ultimately has the burden of 16 proof on this "extraordinary exclusion." 292 F.3d at 1065. He accordingly must demonstrate 17 a causal relationship between the extraordinary circumstance and the lateness of his filing. 18 E.g., Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). Accord Bryant v. Arizona Attorney 19 General, 499 F.3d 1056, 1061 (9th Cir. 2007). 20 Petitioner also is informed that, under certain circumstances, the one-year limitation 21 period may begin running on a later date or may be statutorily tolled. See 28 U.S.C. § 22 2244(d)(1)(B), (C) & (D) & (d)(2). 23 IT THEREFORE IS ORDERED that, within thirty (30) days of entry of this order, 24 petitioner shall SHOW CAUSE in writing why the petition should not be dismissed with 25 prejudice as time-barred. If petitioner does not timely respond to this order, the petition will 26 be dismissed with prejudice as time-barred without further advance notice. If petitioner 27 responds but fails to show with competent evidence that the petition is timely, the action will 28 be dismissed with prejudice. -3- Case 3:11-cv-00163-RCJ -VPC Document 5 Filed 04/25/11 Page 4 of 4 1 IT FURTHER IS ORDERED that all assertions of fact made by petitioner must be 2 detailed, must be specific as to time and place, and must be supported by competent 3 evidence. The Court will not consider any assertions of fact that are not specific as to time 4 and place, that are not made pursuant to a declaration under penalty of perjury based upon 5 personal knowledge, and/or that are not supported by competent evidence filed by petitioner 6 in the record in this Court. 7 The Court will hold the motion for counsel under submission pending petitioner’s 8 response to this show cause order. The Court does not find that the interests of justice 9 require the appointment of counsel prior to petitioner’s response to the show cause order.2 DATED: 04-25-2011. 10 11 12 _________________________________ ROBERT C. JONES United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 This order does not signify by om ission that either the petition or the claim s therein otherwise are free of deficiencies. The Court defers consideration of any other deficiencies in the papers presented until after a determ ination in the first instance as to whether the petition is tim ely. -4-
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
