Durand v. Drummond

District Court, D. Nevada·Decided May 12, 2020·No. 3:19-cv-00763·Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 ROBERTO DURAND, Case No. 3:19-cv-00763-MMD-WGC

7 Petitioner, ORDER v. 8

9 DAVID DRUMMOND, et al.,

10 Respondents.

12 On January 2, 2020, this Court entered an order directing Petitioner Roberto 13 Durand to show cause to why this federal habeas proceeding under 28 U.S.C. § 2254 14 should not be dismissed as untimely under 28 U.S.C. § 2244(d). (ECF No. 3.) The Court 15 noted that the Nevada Supreme Court denied Petitioner’s direct appeal in 2012 and that 16 it did not appear that Petitioner properly filed a state post-conviction proceeding after his 17 conviction became final on December 12, 2012. (Id.) In responding to the order to show 18 cause (ECF No. 7), Petitioner has failed to demonstrate that this proceeding was timely 19 filed. Accordingly, his habeas petition will be dismissed with prejudice. 20 With his response, Petitioner does not dispute that his one-year statutory period 21 commenced on December 12, 2012. He does not claim or provide any evidence that he 22 is entitled to statutory tolling under 28 U.S.C. § 2244(d)(2). Instead it appears as if he 23 claims he is entitled to statutory tolling due to circumstances that prevented his timely 24 filing. (ECF No. 7 at 2-3.) 25 Equitable tolling is appropriate only if the petitioner can show: (1) that he has been 26 pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his 27 way and prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010). Equitable 28 tolling is "unavailable in most cases," Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999), 2 swallow the rule," Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (quoting United 3 States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). The petitioner ultimately has the 4 burden of proof on this “extraordinary exclusion.” Miranda, 292 F.3d at 1065. He must 5 demonstrate a causal relationship between the extraordinary circumstance and the 6 lateness of his filing. E.g., Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003); accord 7 Bryant v. Arizona Attorney General, 499 F.3d 1056, 1061 (9th Cir. 2007). 8 Petitioner asserts that his efforts at properly seeking state court relief were thwarted 9 by his confinement in administrative segregation, his lack of legal knowledge, and his 10 inability to obtain legal assistance from an attorney or paralegals. As a Nevada prisoner 11 not sentenced to death, however, Petitioner has no constitutional or statutory right to 12 counsel for state post-conviction proceedings. See Brown v. McDaniel, 331 P.3d 867, 870 13 (Nev. 2014). Likewise, Petitioner’s ignorance of the law is not an “extraordinary 14 circumstance” that warrants equitable tolling. See Rasberry v. Garcia, 448 F.3d 1150, 15 1154 (9th Cir. 2006) (petitioner's ignorance of the law and inability to correctly calculate 16 the limitations period did not provide grounds for equitable tolling); Ford v. Pliler, 590 F.3d 17 782, 789 (9th Cir. 2009) (petitioner's confusion or ignorance of the law is not an 18 extraordinary circumstance for equitable tolling). Lastly, his alleged lack of access to legal 19 resources or assistance, while in lockdown or otherwise, does not qualify either. See 20 Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009) (holding that petitioner's stay in 21 administrative segregation with limited access to the law library and a copier did not justify 22 equitable tolling because it was neither “extraordinary” nor did it make it “impossible” for 23 him to file his petition in a timely manner); Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 24 2001) (rejecting argument that lack of access to library materials automatically qualifies 25 as grounds for equitable tolling); Jackson v. Del Papa, 91 F. App’x. 592, 593 (9th Cir. 26 2004) (citing Marsh v. Soares, 223 F.3d 1217, 1220-21 (10th Cir. 2000) (holding that 27 incompetence of an inmate law clerk did not create “extraordinary circumstances” 28 warranting equitable tolling)). 1 In the absence of a showing of statutory or equitable tolling, or the applicability of 2 || an alternative triggering date, the federal limitation period for Petitioner expired more than 3 || six years prior to the filing of this federal proceeding. 4 It is therefore ordered that the petition for writ of habeas corpus (ECF No. 4) is 5 || dismissed with prejudice as untimely. 6 It is further ordered that a certificate of appealability is denied, as jurists of reason 7 || would not find the Court’s dismissal to be debatable or incorrect. 8 It is further ordered that Petitioner's motion for appointment counsel (ECF No. 6) 9 || and motion for entry of default (ECF No. 8) are denied as moot. 10 The Clerk of the Court is directed to enter judgment accordingly and close this case. 11 DATED THIS 12" day of May 2020.