3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 HARRISTON LEE BASS, JR., Case No. 3:19-cv-00411-MMD-WGC
7 Petitioner, ORDER v. 8 RENEE BAKER, et al., 9 Respondents. 10 11 This pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 comes 12 before the Court for preliminary review of the amended petition filed on September 4, 13 2019. (ECF No. 4.) Petitioner has also filed a motion for appointment of counsel, and a 14 motion for leave to file excess pages. (ECF Nos. 5, 6.) Following its review of the petition, 15 the Court will again direct Petitioner to amend his petition. The Court will also direct 16 Petitioner to show cause why this action should not be dismissed as time-barred.1 17 On August 5, 2019, the Court directed Petitioner to file an amended petition on the 18 Court’s form or in substantial compliance with the Court’s form. (ECF No. 3.) The Court 19 also instructed Petitioner to refrain from lengthy factual or legal argument. While Petitioner 20 has filed an amended petition that incorporates the first two pages of the form and the 21 first sheet for each ground, it does not include the pages that follow each ground, e.g., 22 pages 4, 6 and 8, on which Petitioner should identify whether and how each ground has 23 been exhausted. Further, the petition continues to contain lengthy factual and legal 24
25 1The Court will continue to defer a decision on Petitioner’s other motions until after Petitioner has responded to the order to show cause and filed a second amended petition 26 in compliance with the Court’s order. 1 argument. Petitioner again will be directed to file an amended petition, incorporating the 2 exhaustion pages after each ground. Again, Petitioner is advised to refrain from lengthy 3 factual and legal argument to the extent possible. Petitioner is also directed to omit any 4 exhibits from his petition save and except written findings of the state courts. 5 In addition, following review of the petition and the relevant state court dockets, of 6 which the Court takes judicial notice, the Court finds the petition untimely on its face and 7 therefore directs Petitioner to show cause why it should not be dismissed as time-barred. 8 Under 28 U.S.C. § 2244(d)(1)(A), the federal one-year limitation period, unless 9 otherwise tolled or subject to delayed accrual, begins running after “the date on which the 10 judgment became final by the conclusion of direct review or the expiration of the time for 11 seeking such direct review.” The federal limitations period is tolled while “a properly filed 12 application for State post-conviction or other collateral review with respect to the pertinent 13 judgment or claim is pending.” Id. § 2244(d)(2). 14 Petitioner here challenges his 2008 judgment of conviction in Eighth Judicial 15 District Court, on several counts, including second degree murder and fifty-five drug 16 related counts. (ECF No. 4 at 2, 91.) See also Direct Appeal Ord. of Affirmance, Dated 17 May 18, 2010, available at 18 http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=20842 (last accessed 19 September 25, 2019). Petitioner indicates that his direct appeal was decided on February 20 18, 2011, which roughly corresponds with the date of issuance of remittitur on petitioner’s 21 direct appeal (February 14, 2011). (ECF No. 4 at 1.) See also 22 http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=20842 (last accessed 23 September 25, 2019). The specific date, in the context of this case, is not necessarily 24 important, because after the Nevada Supreme Court’s remittitur issued, petitioner filed a 25 petition for writ of certiorari with the United States Supreme Court. See 26 http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=20842 (last accessed 1 September 25, 2019). The United States Supreme Court denied certiorari on June 30, 2 2011, and denied reconsideration on September 6, 2011. See id. Therefore, the latest 3 possible date on which Petitioner’s conviction became final was September 6, 2011. 4 Petitioner filed his state postconviction petition on February 14, 2012. (ECF No. 4 5 at 1.) See also Opening Brief (Postconviction Appeal) Dated September 7, 2017, 6 available at http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=40151 (last 7 accessed September 25, 2019). Remittitur on the Nevada Supreme Court’s decision 8 affirming denial of the state petition issued on August 14, 2018. See 9 http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=40151 (last accessed 10 September 25, 2019). 11 The AEDPA statute of limitations began to run the day after Petitioner’s conviction 12 became final, or on September 7, 2011, and was tolled during the pendency of Petitioner’s 13 state postconviction petition, from February 14, 2012, until August 14, 2018. The clock 14 began to run again on August 15, 2018. Before petitioner initiated his state postconviction 15 proceedings, 160 days elapsed on the federal clock. Accordingly, once remittitur issued 16 on the state postconviction proceedings, the statute of limitations expired 205 days later, 17 or on March 7, 2019. This petition filed no earlier than July 7, 20192 is therefore untimely 18 on its face. Petitioner must show cause why the petition should not be dismissed as time- 19 barred. 20 In this regard, Petitioner is informed that the one-year limitation period may be 21 equitably tolled. Equitable tolling is appropriate only if the petitioner can show that: (1) he 22 has been pursuing his rights diligently; and (2) some extraordinary circumstance stood in 23 his way and prevented timely filing. See Holland v. Florida, 560 U.S. 631, 649 (2010).
24 2Although Petitioner’s in forma pauperis application is dated February 19, 2019, the attached financial certificate is dated June 12, 2019, and the motion for appointment 25 of counsel filed along with the pauper application and petition is dated July 7, 2019. The 26 Court received the petition on July 19, 2019. The Court therefore concludes Petitioner dispatched his petition for filing no earlier than July 7, 2019. 1 Equitable tolling is “unavailable in most cases,” Miles v. Prunty, 187 F.3d 1104, 1107 (9th 2 Cir. 1999), and “the threshold necessary to trigger equitable tolling is very high, lest the 3 exceptions swallow the rule,” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) 4 (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). The petitioner 5 ultimately has the burden of proof on this “extraordinary exclusion.” Miranda, 292 F.3d at 6 1065. The petitioner accordingly must demonstrate a causal relationship between the 7 extraordinary circumstance and the lateness of his or her filing. See, e.g., Spitsyn v. 8 Moore, 345 F.3d 796, 799 (9th Cir. 2003); accord Bryant v. Arizona Attorney General, 9 499 F.3d 1056, 1061 (9th Cir. 2007). 10 Petitioner is further informed that, under certain circumstances, the one-year 11 limitation period may begin running on a later date or may be statutorily tolled. See 28 12 U.S.C. § 2244(d)(1)(B), (C), (D), (d)(2).
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3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 HARRISTON LEE BASS, JR., Case No. 3:19-cv-00411-MMD-WGC
7 Petitioner, ORDER v. 8 RENEE BAKER, et al., 9 Respondents. 10 11 This pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 comes 12 before the Court for preliminary review of the amended petition filed on September 4, 13 2019. (ECF No. 4.) Petitioner has also filed a motion for appointment of counsel, and a 14 motion for leave to file excess pages. (ECF Nos. 5, 6.) Following its review of the petition, 15 the Court will again direct Petitioner to amend his petition. The Court will also direct 16 Petitioner to show cause why this action should not be dismissed as time-barred.1 17 On August 5, 2019, the Court directed Petitioner to file an amended petition on the 18 Court’s form or in substantial compliance with the Court’s form. (ECF No. 3.) The Court 19 also instructed Petitioner to refrain from lengthy factual or legal argument. While Petitioner 20 has filed an amended petition that incorporates the first two pages of the form and the 21 first sheet for each ground, it does not include the pages that follow each ground, e.g., 22 pages 4, 6 and 8, on which Petitioner should identify whether and how each ground has 23 been exhausted. Further, the petition continues to contain lengthy factual and legal 24
25 1The Court will continue to defer a decision on Petitioner’s other motions until after Petitioner has responded to the order to show cause and filed a second amended petition 26 in compliance with the Court’s order. 1 argument. Petitioner again will be directed to file an amended petition, incorporating the 2 exhaustion pages after each ground. Again, Petitioner is advised to refrain from lengthy 3 factual and legal argument to the extent possible. Petitioner is also directed to omit any 4 exhibits from his petition save and except written findings of the state courts. 5 In addition, following review of the petition and the relevant state court dockets, of 6 which the Court takes judicial notice, the Court finds the petition untimely on its face and 7 therefore directs Petitioner to show cause why it should not be dismissed as time-barred. 8 Under 28 U.S.C. § 2244(d)(1)(A), the federal one-year limitation period, unless 9 otherwise tolled or subject to delayed accrual, begins running after “the date on which the 10 judgment became final by the conclusion of direct review or the expiration of the time for 11 seeking such direct review.” The federal limitations period is tolled while “a properly filed 12 application for State post-conviction or other collateral review with respect to the pertinent 13 judgment or claim is pending.” Id. § 2244(d)(2). 14 Petitioner here challenges his 2008 judgment of conviction in Eighth Judicial 15 District Court, on several counts, including second degree murder and fifty-five drug 16 related counts. (ECF No. 4 at 2, 91.) See also Direct Appeal Ord. of Affirmance, Dated 17 May 18, 2010, available at 18 http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=20842 (last accessed 19 September 25, 2019). Petitioner indicates that his direct appeal was decided on February 20 18, 2011, which roughly corresponds with the date of issuance of remittitur on petitioner’s 21 direct appeal (February 14, 2011). (ECF No. 4 at 1.) See also 22 http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=20842 (last accessed 23 September 25, 2019). The specific date, in the context of this case, is not necessarily 24 important, because after the Nevada Supreme Court’s remittitur issued, petitioner filed a 25 petition for writ of certiorari with the United States Supreme Court. See 26 http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=20842 (last accessed 1 September 25, 2019). The United States Supreme Court denied certiorari on June 30, 2 2011, and denied reconsideration on September 6, 2011. See id. Therefore, the latest 3 possible date on which Petitioner’s conviction became final was September 6, 2011. 4 Petitioner filed his state postconviction petition on February 14, 2012. (ECF No. 4 5 at 1.) See also Opening Brief (Postconviction Appeal) Dated September 7, 2017, 6 available at http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=40151 (last 7 accessed September 25, 2019). Remittitur on the Nevada Supreme Court’s decision 8 affirming denial of the state petition issued on August 14, 2018. See 9 http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=40151 (last accessed 10 September 25, 2019). 11 The AEDPA statute of limitations began to run the day after Petitioner’s conviction 12 became final, or on September 7, 2011, and was tolled during the pendency of Petitioner’s 13 state postconviction petition, from February 14, 2012, until August 14, 2018. The clock 14 began to run again on August 15, 2018. Before petitioner initiated his state postconviction 15 proceedings, 160 days elapsed on the federal clock. Accordingly, once remittitur issued 16 on the state postconviction proceedings, the statute of limitations expired 205 days later, 17 or on March 7, 2019. This petition filed no earlier than July 7, 20192 is therefore untimely 18 on its face. Petitioner must show cause why the petition should not be dismissed as time- 19 barred. 20 In this regard, Petitioner is informed that the one-year limitation period may be 21 equitably tolled. Equitable tolling is appropriate only if the petitioner can show that: (1) he 22 has been pursuing his rights diligently; and (2) some extraordinary circumstance stood in 23 his way and prevented timely filing. See Holland v. Florida, 560 U.S. 631, 649 (2010).
24 2Although Petitioner’s in forma pauperis application is dated February 19, 2019, the attached financial certificate is dated June 12, 2019, and the motion for appointment 25 of counsel filed along with the pauper application and petition is dated July 7, 2019. The 26 Court received the petition on July 19, 2019. The Court therefore concludes Petitioner dispatched his petition for filing no earlier than July 7, 2019. 1 Equitable tolling is “unavailable in most cases,” Miles v. Prunty, 187 F.3d 1104, 1107 (9th 2 Cir. 1999), and “the threshold necessary to trigger equitable tolling is very high, lest the 3 exceptions swallow the rule,” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) 4 (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). The petitioner 5 ultimately has the burden of proof on this “extraordinary exclusion.” Miranda, 292 F.3d at 6 1065. The petitioner accordingly must demonstrate a causal relationship between the 7 extraordinary circumstance and the lateness of his or her filing. See, e.g., Spitsyn v. 8 Moore, 345 F.3d 796, 799 (9th Cir. 2003); accord Bryant v. Arizona Attorney General, 9 499 F.3d 1056, 1061 (9th Cir. 2007). 10 Petitioner is further informed that, under certain circumstances, the one-year 11 limitation period may begin running on a later date or may be statutorily tolled. See 28 12 U.S.C. § 2244(d)(1)(B), (C), (D), (d)(2). 13 Petitioner is further informed that if he seeks to avoid application of the limitation 14 period based upon a claim of actual innocence, he must come forward with new reliable 15 evidence tending to establish actual factual innocence, i.e., tending to establish that no 16 juror acting reasonably would have found him guilty beyond a reasonable doubt. See 17 McQuiggin v. Perkins, 569 U.S. 383 (2013); House v. Bell, 547 U.S. 518 (2006); Lee v. 18 Lampert, 653 F.3d 929 (9th Cir. 2011) (en banc). In this regard, “actual innocence means 19 factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 624, 20 623 (1998) (internal quotation marks omitted). 21 It is therefore ordered that Petitioner must show cause within 30 days of the date 22 of this order why the action should not be dismissed as untimely. If Petitioner does not 23 timely respond to this order, the petition will be dismissed with prejudice without further 24 advance notice. If Petitioner responds but fails to show with specific, detailed and 25 competent evidence why the petition should not be dismissed as untimely, the action will 26 be dismissed with prejudice. 1 It is further ordered that all assertions of fact made by Petitioner in response to this 2 show cause order must be detailed, must be specific as to time and place, and must be 3 supported by competent evidence. The Court will not consider any assertions of fact that 4 are not specific as to time and place, that are not made pursuant to a declaration under 5 penalty of perjury based upon personal knowledge, and/or that are not supported by 6 competent evidence filed by petitioner in the federal record. Petitioner must attach copies 7 of all materials upon which he bases his argument that the petition should not be 8 dismissed as untimely. Unsupported assertions of fact will be disregarded. 9 It is further ordered that Petitioner will file an amended petition on the Court’s form 10 within 30 days of the date of this order. Failure to do so will result in the dismissal of the 11 petition without prejudice and without further advance notice. 12 The Clerk of Court is directed to send Petitioner a copy of the Court’s form for 28 13 U.S.C. § 2254 petitions.
14 DATED THIS 26th day of September 2019. 15
16 MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26