1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * *
4 DEMARENE COLEMAN, Case No. 2:24-cv-00078-RFB-MDC
5 Petitioner, DISMISSAL ORDER
6 v.
7 WARDEN NAJERA, et al.,
8 Respondents.
9 Pro se Petitioner Demarene Coleman filed a Petition for Writ of Habeas Corpus pursuant 10 to 28 U.S.C. § 2254 (“Petition”). ECF No. 1-1. After conducting an initial review of the Petition, 11 this Court instructed Coleman to show cause why his Petition should not be dismissed as untimely. 12 ECF No. 5. Coleman timely responded. ECF No. 6. For the reasons discussed below, this Court 13 dismisses the Petition and instructs the Clerk of Court to close this case. 14 I. BACKGROUND1 15 Coleman challenges a conviction and sentence imposed by the Eighth Judicial District 16 Court for Clark County (“state court”). State of Nevada v. Demarene Coleman, 05C215295-1. On 17 August 22, 2007, and September 6, 2007, the state court entered a judgment of conviction and 18 amended judgment of conviction, respectively, pursuant to a guilty plea, for first-degree murder 19 and battery with the use of a deadly weapon. Coleman was sentenced to 20 to 50 years for the first- 20 degree murder conviction and 4 to 10 years for the battery conviction. Coleman did not file a direct 21 appeal. 22 23
1 This Court repeats this section of its Order to Show Cause (ECF No. 5) for clarity purposes. 1 On August 19, 2008, Coleman filed his first state habeas petition. The state court denied 2 post-conviction relief on February 26, 2009. Coleman did not appeal. See ECF No. 1-1 at 78 n.2. 3 On August 14, 2019, Coleman filed his second state habeas petition. Demarene Coleman v. State 4 of Nevada, A-19-800228-W. The state court denied post-conviction relief on December 9, 2019. 5 Coleman appealed, and the Nevada Court of Appeals affirmed on May 26, 2020. Demarene
6 Coleman v. State of Nevada, 80055-COA. On September 21, 2020, Coleman filed a federal habeas 7 petition, explaining that prison officials had miscalculated his statutory credits for parole eligibility 8 under Nevada law. Coleman v. State of Nevada, 2:20-cv-01754-APG-EJY. This Court dismissed 9 Coleman’s federal petition without prejudice because his claims were not cognizable in federal 10 habeas. On January 7, 2022, Coleman filed a motion to modify his sentence and appealed the state 11 court’s denial of that motion. The Nevada Court of Appeals affirmed on July 8, 2022. Demarene 12 Coleman v. State of Nevada, 84292-COA. On April 5, 2023, Coleman filed his third state habeas 13 petition. Demarene Coleman v. Warden Najera, A-23-868466-W. The state court denied post- 14 conviction relief on July 25, 2023. Coleman appealed, and the Nevada Court of Appeals affirmed
15 on November 28, 2023. Demarene Coleman v. Gabriela Najera, 86923-COA. And on October 9, 16 2023, Coleman filed his fourth state habeas petition. Demarene Coleman v. State of Nevada, A- 17 23-879247-W. The state court denied post-conviction relief on January 2, 2024. 18 II. TIMELINESS STANDARD 19 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes a 1-year period 20 of limitations for state prisoners to file a federal habeas petition pursuant to 28 U.S.C. § 2254. The 21 1-year limitation period begins to run from the latest of four possible triggering dates, with the 22 most common being the date on which the petitioner’s judgment of conviction became final by 23 either the conclusion of direct appellate review or the expiration of the time for seeking such 1 review. 28 U.S.C. § 2244(d)(1)(A). For a Nevada prisoner pursuing a direct appeal, a conviction 2 becomes final when the 90-day period for filing a petition for certiorari in the Supreme Court of 3 the United States expires after a Nevada appellate court has entered judgment or the Supreme 4 Court of Nevada has denied discretionary review. Harris v. Carter, 515 F.3d 1051, 1053 n.1 (9th 5 Cir. 2008); Shannon v. Newland, 410 F.3d 1083, 1086 (9th Cir. 2005); Sup. Ct. R. 13.
6 The federal limitations period is tolled while “a properly filed application for State post- 7 conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 8 28 U.S.C. § 2244(d)(2). No statutory tolling is allowed for the period between finality of a direct 9 appeal and the filing of a petition for post-conviction relief in state court because no state court 10 proceeding is pending during that time. Nino v. Galaza, 183 F.3d 1003, 1006–07 (9th Cir. 1999); 11 Rasberry v. Garcia, 448 F.3d 1150, 1153 n.1 (9th Cir. 2006). 12 III. DISCUSSION 13 Coleman’s conviction became final when the time expired for filing a direct appeal to the 14 Nevada appellate courts on October 8, 2007. See Nev. R. App. P. 4(b)(1) (requiring a notice of
15 appeal to “be filed with the district court clerk within 30 days after the entry of the judgment or 16 order being appealed”); Gonzalez v. Thaler, 565 U.S. 134, 137 (2012) (when a state prisoner “does 17 not seek review in a State’s highest court, the judgment becomes ‘final’ on the date that the time 18 for seeking such review expires”). The federal statute of limitations thus began to run the following 19 day: October 9, 2007. Coleman filed his first state petition on August 19, 2008, tolling the AEDPA 20 clock. As a result, 315 days elapsed between the finality of the judgment and the filing of the state 21 petition. The remaining 50 days of the AEDPA limitation period was statutorily tolled during the 22 pendency of all proceedings related to his state petition. Tolling ended on February 26, 2009, when 23 the state court denied his first state habeas petition since Coleman did not seek appellate review of 1 that decision. The AEDPA clock restarted the following day: February 27, 2009. Consequently, 2 the AEDPA clock expired 50 days later on April 20, 2009. Coleman’s instant Petition was received 3 by this Court on January 9, 2024. Absent another basis for tolling or delayed accrual, Coleman 4 filed his Petition over 14 years after the AEDPA limitation period expired.2 5 This Court instructed Coleman to show cause why his Petition should not be dismissed as
6 untimely. ECF No. 5. Coleman was warned that if he “fail[ed] to show with specific, detailed, and 7 competent evidence why the Petition should not be dismissed as untimely, the action will be 8 dismissed with prejudice.” Id. at 6. On May 24, 2024, Coleman filed a response, explaining that 9 he can show cause and prejudice to overcome any procedurally defaulted claims. ECF No. 6. 10 However, this Court did not order Coleman to show cause why this action should not be dismissed 11 as procedurally defaulted, so Coleman’s response is nonresponsive. Accordingly, because 12 Coleman (1) did not appropriately respond to the Order to Show Cause, (2) has not shown that his 13 Petition is not untimely, (3) has not shown that he is entitled to any tolling, and (4) does not seek 14 to avoid application of the limitations period based upon a claim of actual innocence, this Court
15 dismisses the Petition with prejudice.
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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * *
4 DEMARENE COLEMAN, Case No. 2:24-cv-00078-RFB-MDC
5 Petitioner, DISMISSAL ORDER
6 v.
7 WARDEN NAJERA, et al.,
8 Respondents.
9 Pro se Petitioner Demarene Coleman filed a Petition for Writ of Habeas Corpus pursuant 10 to 28 U.S.C. § 2254 (“Petition”). ECF No. 1-1. After conducting an initial review of the Petition, 11 this Court instructed Coleman to show cause why his Petition should not be dismissed as untimely. 12 ECF No. 5. Coleman timely responded. ECF No. 6. For the reasons discussed below, this Court 13 dismisses the Petition and instructs the Clerk of Court to close this case. 14 I. BACKGROUND1 15 Coleman challenges a conviction and sentence imposed by the Eighth Judicial District 16 Court for Clark County (“state court”). State of Nevada v. Demarene Coleman, 05C215295-1. On 17 August 22, 2007, and September 6, 2007, the state court entered a judgment of conviction and 18 amended judgment of conviction, respectively, pursuant to a guilty plea, for first-degree murder 19 and battery with the use of a deadly weapon. Coleman was sentenced to 20 to 50 years for the first- 20 degree murder conviction and 4 to 10 years for the battery conviction. Coleman did not file a direct 21 appeal. 22 23
1 This Court repeats this section of its Order to Show Cause (ECF No. 5) for clarity purposes. 1 On August 19, 2008, Coleman filed his first state habeas petition. The state court denied 2 post-conviction relief on February 26, 2009. Coleman did not appeal. See ECF No. 1-1 at 78 n.2. 3 On August 14, 2019, Coleman filed his second state habeas petition. Demarene Coleman v. State 4 of Nevada, A-19-800228-W. The state court denied post-conviction relief on December 9, 2019. 5 Coleman appealed, and the Nevada Court of Appeals affirmed on May 26, 2020. Demarene
6 Coleman v. State of Nevada, 80055-COA. On September 21, 2020, Coleman filed a federal habeas 7 petition, explaining that prison officials had miscalculated his statutory credits for parole eligibility 8 under Nevada law. Coleman v. State of Nevada, 2:20-cv-01754-APG-EJY. This Court dismissed 9 Coleman’s federal petition without prejudice because his claims were not cognizable in federal 10 habeas. On January 7, 2022, Coleman filed a motion to modify his sentence and appealed the state 11 court’s denial of that motion. The Nevada Court of Appeals affirmed on July 8, 2022. Demarene 12 Coleman v. State of Nevada, 84292-COA. On April 5, 2023, Coleman filed his third state habeas 13 petition. Demarene Coleman v. Warden Najera, A-23-868466-W. The state court denied post- 14 conviction relief on July 25, 2023. Coleman appealed, and the Nevada Court of Appeals affirmed
15 on November 28, 2023. Demarene Coleman v. Gabriela Najera, 86923-COA. And on October 9, 16 2023, Coleman filed his fourth state habeas petition. Demarene Coleman v. State of Nevada, A- 17 23-879247-W. The state court denied post-conviction relief on January 2, 2024. 18 II. TIMELINESS STANDARD 19 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes a 1-year period 20 of limitations for state prisoners to file a federal habeas petition pursuant to 28 U.S.C. § 2254. The 21 1-year limitation period begins to run from the latest of four possible triggering dates, with the 22 most common being the date on which the petitioner’s judgment of conviction became final by 23 either the conclusion of direct appellate review or the expiration of the time for seeking such 1 review. 28 U.S.C. § 2244(d)(1)(A). For a Nevada prisoner pursuing a direct appeal, a conviction 2 becomes final when the 90-day period for filing a petition for certiorari in the Supreme Court of 3 the United States expires after a Nevada appellate court has entered judgment or the Supreme 4 Court of Nevada has denied discretionary review. Harris v. Carter, 515 F.3d 1051, 1053 n.1 (9th 5 Cir. 2008); Shannon v. Newland, 410 F.3d 1083, 1086 (9th Cir. 2005); Sup. Ct. R. 13.
6 The federal limitations period is tolled while “a properly filed application for State post- 7 conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 8 28 U.S.C. § 2244(d)(2). No statutory tolling is allowed for the period between finality of a direct 9 appeal and the filing of a petition for post-conviction relief in state court because no state court 10 proceeding is pending during that time. Nino v. Galaza, 183 F.3d 1003, 1006–07 (9th Cir. 1999); 11 Rasberry v. Garcia, 448 F.3d 1150, 1153 n.1 (9th Cir. 2006). 12 III. DISCUSSION 13 Coleman’s conviction became final when the time expired for filing a direct appeal to the 14 Nevada appellate courts on October 8, 2007. See Nev. R. App. P. 4(b)(1) (requiring a notice of
15 appeal to “be filed with the district court clerk within 30 days after the entry of the judgment or 16 order being appealed”); Gonzalez v. Thaler, 565 U.S. 134, 137 (2012) (when a state prisoner “does 17 not seek review in a State’s highest court, the judgment becomes ‘final’ on the date that the time 18 for seeking such review expires”). The federal statute of limitations thus began to run the following 19 day: October 9, 2007. Coleman filed his first state petition on August 19, 2008, tolling the AEDPA 20 clock. As a result, 315 days elapsed between the finality of the judgment and the filing of the state 21 petition. The remaining 50 days of the AEDPA limitation period was statutorily tolled during the 22 pendency of all proceedings related to his state petition. Tolling ended on February 26, 2009, when 23 the state court denied his first state habeas petition since Coleman did not seek appellate review of 1 that decision. The AEDPA clock restarted the following day: February 27, 2009. Consequently, 2 the AEDPA clock expired 50 days later on April 20, 2009. Coleman’s instant Petition was received 3 by this Court on January 9, 2024. Absent another basis for tolling or delayed accrual, Coleman 4 filed his Petition over 14 years after the AEDPA limitation period expired.2 5 This Court instructed Coleman to show cause why his Petition should not be dismissed as
6 untimely. ECF No. 5. Coleman was warned that if he “fail[ed] to show with specific, detailed, and 7 competent evidence why the Petition should not be dismissed as untimely, the action will be 8 dismissed with prejudice.” Id. at 6. On May 24, 2024, Coleman filed a response, explaining that 9 he can show cause and prejudice to overcome any procedurally defaulted claims. ECF No. 6. 10 However, this Court did not order Coleman to show cause why this action should not be dismissed 11 as procedurally defaulted, so Coleman’s response is nonresponsive. Accordingly, because 12 Coleman (1) did not appropriately respond to the Order to Show Cause, (2) has not shown that his 13 Petition is not untimely, (3) has not shown that he is entitled to any tolling, and (4) does not seek 14 to avoid application of the limitations period based upon a claim of actual innocence, this Court
15 dismisses the Petition with prejudice. In light of this dismissal, the motion for appointment of 16 counsel is denied. 17 IV. CONCLUSION 18 IT IS THEREFORE ORDERED that the Petition is dismissed with prejudice as 19 untimely. A certificate of appealability is denied, as jurists of reason would not find dismissal of 20 the Petition for the reasons stated herein to be debatable or wrong. 21
22 2 Although Coleman filed second, third, and fourth state habeas petitions on August 14, 2019, April 5, 2023, and October 9, 2023, respectively, they were filed after the AEDPA clock had 23 already expired. As such, Coleman’s second, third, and fourth state petitions could not have tolled an already expired limitations period. See Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). 1 IT IS FURTHER ORDERED that the motion for appointment of counsel (ECF No. 1-2) denied. 3 IT IS FURTHER ORDERED that the Clerk of Court (1) file the Petition (ECF No. 1-1), (2) add Nevada Attorney General Aaron D. Ford as counsel for Respondents, (3) informally serve the Nevada Attorney General with the Petition (ECF No. 1-1), this Order, and all other filings in matter by sending notices of electronic filing to the Nevada Attorney General’s office, (4) enter final judgment, and (5) close this case. 8 9 DATED: March 11, 2025. _——_e
11 CVD RICHARD F. BOULWARE, IT 12 UNITED STATES DISTRICT COURT 13 14 15 16 17 18 19 20 21 22 2 3 No response is required from Respondents other than to respond to any orders of a reviewing court.