Hartzell v. Breitenbach

• Court: District Court, D. Nevada
• Decided: September 5, 2025
• Docket: 3:24-cv-00028
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 SHAWN TOSH HARTZELL, Case No. 3:24-cv-00028-ART-CLB 5 Petitioner, ORDER 6 v.

7 NETHANJAH BREITENBACH, et al.,

8 Respondents.

9 Petitioner Shawn Tosh Hartzell filed a Petition for Writ of Habeas Corpus 10 under 28 U.S.C. § 2254. (ECF No. 1-1 (“Petition”).) Following an initial review of 11 the Petition, this Court appointed counsel to represent Hartzell and ordered 12 Hartzell to show cause why the Petition should not be dismissed as untimely. 13 (ECF No. 5.) Hartzell filed a counseled response to the Order to Show Cause, 14 Respondents filed a response, and Hartzell filed a reply. (ECF Nos. 14, 18, 23.) 15 For the reasons discussed below, this Court finds that Hartzell is entitled to 16 equitable tolling, making his Petition timely, and sets a briefing schedule for 17 Hartzell to file a counseled amended petition and/or seek other appropriate relief. 18 I. BACKGROUND 19 On April 7, 2022, the state court entered a judgment of conviction, 20 pursuant to an Alford1 plea, convicting Hartzell of (1) abuse, neglect, or 21 endangerment of a child, and (2) lewdness with a child under the age of 14 years. 22 (ECF No. 15-2.) Hartzell was sentenced to 24 to 60 months for count 1 and 10 23 years to life for count 2. (Id.) Hartzell filed a pro se notice of appeal on June 2, 24 2022. (ECF No. 19-32.) The Nevada Supreme Court dismissed the appeal on 25 September 26, 2022, finding that Hartzell’s notice of appeal was filed “24 days 26 after expiration of the 30-day appeal period.” (ECF No. 15-4.) Remittitur issued 27

28 1Carolina v. Alford, 400 U.S. 25 (1970). 1 on October 21, 2022. (ECF No. 15-5.) Hartzell did not file a state habeas petition. 2 (See ECF No. 1-1 at 1.) On January 18, 2024, Hartzell transmitted his instant 3 Petition to this Court. (Id.) 4 II. LEGAL STANDARD 5 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes a 6 1-year period of limitations for state prisoners to file a federal habeas petition 7 pursuant to 28 U.S.C. § 2254. The 1-year limitation period begins to run from 8 the latest of 4 possible triggering dates, with the most common being the date on 9 which the petitioner’s judgment of conviction became final by either the 10 conclusion of direct appellate review or the expiration of the time for seeking such 11 review. 28 U.S.C. § 2244(d)(1)(A). The federal limitations period is tolled while “a 12 properly filed application for State post-conviction or other collateral review with 13 respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). 14 But no statutory tolling is allowed for the period between finality of a direct appeal 15 and the filing of a petition for post-conviction relief in state court because no state 16 court proceeding is pending during that time. Nino v. Galaza, 183 F.3d 1003, 17 1006–07 (9th Cir. 1999); Rasberry v. Garcia, 448 F.3d 1150, 1153 n.1 (9th Cir. 18 2006). 19 III. DISCUSSION 20 Here, Hartzell’s conviction became final when the time expired for filing a 21 direct appeal to the Nevada appellate courts on May 9, 2022. See Nev. R. App. P. 22 4(b)(1) (requiring a notice of appeal to “be filed with the district court clerk within 23 30 days after the entry of the judgment or order being appealed”); Gonzalez v. 24 Thaler, 565 U.S. 134, 137 (2012) (when a state prisoner “does not seek review in 25 a State’s highest court, the judgment becomes ‘final’ on the date that the time for 26 seeking such review expires”). The federal statute of limitations thus began to run 27 the following day: May 10, 2022. Accordingly, because Hartzell did not file a state 28 habeas petition to statutorily toll his limitations period, his limitations period 1 expired 1 year later on May 10, 2023. Accordingly, Hartzell filed his federal 2 habeas Petition 253 days after the AEDPA limitation period expired. 3 In response to the Order to Show Cause, Hartzell does not dispute this 4 Court’s calculation of his AEDPA limitation period; rather, Hartzell contends that 5 he is entitled to 253 days of equitable tolling due to (1) his counsel’s failure to file 6 a notice of appeal, and/or (2) his substantial learning disability and lack of 7 knowledge of the criminal justice system. (ECF No. 14.) 8 The Supreme Court has held that AEDPA’s statute of limitations “is subject 9 to equitable tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 10 (2010). However, equitable tolling is appropriate only if (1) a petitioner has been 11 pursuing his rights diligently, and (2) some extraordinary circumstance stood in 12 his way and prevented timely filing. Id. at 649. To satisfy the first element, a 13 petitioner “must show that he has been reasonably diligent in pursuing his rights 14 not only while an impediment to filing caused by an extraordinary circumstance 15 existed, but before and after as well, up to the time of filing.” Smith v. Davis, 953 16 F.3d 582, 598–99 (9th Cir. 2020) (en banc) (expressly rejecting stop-clock 17 approach for evaluating when petitioner must be diligent). To satisfy the second 18 element, a petitioner must show that the “extraordinary circumstances” were the 19 cause of his untimeliness. Grant v. Swarthout, 862 F.3d 914, 926 (9th Cir. 2017). 20 In other words, a petitioner must show “that some external force caused his 21 untimeliness, rather than mere oversight, miscalculation or negligence.” 22 Velasquez v. Kirkland, 639 F.3d 964, 969 (9th Cir. 2011) (internal quotation 23 omitted). 24 Turning first to Hartzell’s argument that his trial counsel’s abandonment 25 amounted to an extraordinary circumstance, Hartzell explains that he instructed 26 his counsel to file a notice of appeal after his sentencing hearing but his trial 27 counsel failed to do so. (ECF No. 14.) Under Nevada law, trial counsel has a duty 28 to file a direct appeal if “the client expresses a desire to appeal or indicates 1 dissatisfaction with the conviction.” Cantrell v. State, 367 P.3d 755 (Nev. 2010). 2 Hartzell’s trial counsel’s failures to fulfil this duty prompted Hartzell to file a pro 3 se notice of appeal. Unfortunately, Hartzell’s pro se notice of appeal was not 4 mailed until May 31, 2022, even though he handed to an inmate in the law library 5 for mailing on May 5, 2022. (ECF No. 14.) This resulted in the Nevada Supreme 6 Court dismissing Hartzell’s appeal as untimely by 24 days on September 26, 7 2022. (ECF No. 15-4.) Not only did Hartzell’s trial counsel fail to file a direct 8 appeal on his behalf, which would have extended the starting of his AEDPA 9 statute of limitations, but his trial counsel’s failures continued when he did not 10 file, assist, or even inform Hartzell of the need to timely file a state habeas 11 petition, which would have statutorily tolled Hartzell’s AEDPA statute of 12 limitations. 13 Hartzell’s trial counsel’s representation continued until February 6, 2024, 14 when Hartzell’s trial counsel filed a notice of withdrawal. (ECF No. 19-40.) There 15 is no evidence in the record that Hartzell’s trial counsel, who had been retained 16 by Hartzell, took any action on Hartzell’s case or communicated with Hartzell 17 from the date of Hartzell’s sentencing hearing on April 5, 2022, until the filing of 18 his notice to withdraw on February 6, 2024. Further, it was not until February 19 6, 2024, that Hartzell’s trial counsel provided Hartzell with his file, enabling him 20 to pursue relief on his own. (ECF No. 19-41 at 2.) This Court finds that these 21 actions were sufficiently egregious to amount to attorney abandonment which 22 caused Hartzell’s delayed filing in this action. See Holland v. Florida, 560 U.S. 23 631 (2010); Rudin v. Myles, 781 F.3d 1043, 1055 (9th Cir. 2015); Gibbs v. 24 Legrand, 767 F.3d 879, 885 (9th Cir. 2014); Perez v. Reubart, No. 22-15279, 2025 25 WL 2473006 (9th Cir. Aug. 28, 2025). 26 Turning next to Hartzell’s argument that he was diligent, regarding pre- 27 obstacle diligence, Hartzell attempted to timely filed a pro se notice of appeal on 28 May 5, 2022, just 28 days after his judgment of conviction was entered. (See ECF 1 Nos. 15-2, 19-32.) Thus, prior to the extraordinary circumstance of Hartzell’s trial 2 counsel’s abandonment, which made itself clear on May 7, 2022, with his trial 3 counsel’s failure to file a timely direct appeal, Hartzell acted diligently. Then, 4 following the dismissal of his direct appeal on September 26, 2022, Hartzell 5 continued to act diligently by seeking out the help of an inmate law clerk, Daniel 6 Riggs, to assist him with the filing of his federal habeas petition as soon as he 7 was transferred to Lovelock Correctional Center.2 (See ECF No. 15-7.) For six 8 months, from July 2023, until January 2024, Riggs prepared Hartzell’s Petition. 9 (See ECF No. 1-1 at 13 (noting that Riggs was the “person who wrote th[e] 10 complaint”).) This six-month time frame to prepare Hartzell’s habeas petition 11 amounts to reasonable diligence under the circumstances, including (1) the fact 12 that Hartzell’s trial counsel had not yet provided Hartzell with his legal file, (2) 13 the fact that Hartzell has a documented learning disability3 (see ECF No. 15-1) 14 making his reliance on Riggs essential, and (3) Riggs was simultaneously 15 providing legal assistance to other inmates.4 16

17 2 Notably, between September 2022 and July 2023, Hartzell was housed at Northern Nevada Correctional Center, where he was a target to other inmates due 18 to the nature of his convictions. (See ECF No. 15-6.) It was not until Hartzell was transferred to Lovelock Correctional Center, where Nevada’s inmates serving 19 sentences for sexual offenses are generally held, that he was safe from fear of 20 harm to seek assistance for his habeas petition, which necessarily carried with it a discussion of his convictions, unlike the filing of his generic, boilerplate notice 21 of direct appeal. 3 According to Hartzell’s records from the Mt. Diablo Unified School District in 22 Concord, California, Hartzell had an individualized educational plan (“IEP”) in 23 middle and high school. (ECF No. 15-1 at 7-18.) The 1985 IEP stated that his “eligible handicapping condition” was “auditory & processing and visual motor 24 integration,” and provided for “resource help up to 675 minutes per week” and “need[ing] help in study skills, written language and math.”(Id. at 9.) In various 25 assessment tests in 1985, he scored in the single digit percentiles in math and 26 spelling. (Id.) Testing on “competency assessment” in computation, reading, and writing show that in Grades 5 and 7 he received a “fail” in all categories; and in 27 Grades 9 and 12 he received a “fail” in writing. (Id. at 28.) 4 There is no need to discuss post-obstacle diligence given that Hartzell’s trial 28 counsel’s abandonment ended after Hartzell filed his federal habeas petition. 1 Accordingly, Hartzell’s federal statute of limitations was equitably tolled 2 from his sentencing hearing on April 5, 2022, when his attorney abandonment 3 began, until February 6, 2024, when his trial counsel withdrew. Because Hartzell 4 commenced this instant action on January 18, 2024, the Court finds that 5 Hartzell’s Petition is timely. 6 7 IV. CONCLUSION 8 It is therefore ordered Hartzell shall have up to and including 90 days from 9 entry of this Order within which to file a counseled amended petition and/or seek 10 other appropriate relief. Neither the foregoing deadline nor any extension thereof 11 signifies or will signify any implied finding as to the expiration of the federal 12 limitation period and/or of a basis for tolling during the time period 13 established. Hartzell remains responsible for calculating the running of the 14 federal limitation period and timely asserting claims, without regard to any 15 deadlines established or extensions granted herein. That is, by setting a deadline 16 to amend the petition and/or by granting any extension thereof, the Court makes 17 no finding or representation that the petition, any amendments thereto, and/or 18 any claims contained therein are not subject to dismissal as untimely. See Sossa 19 v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013). 20 It is further ordered that Respondents shall file a response to the amended 21 petition, including potentially by motion to dismiss, within 60 days of service of 22 an amended petition and that Hartzell may file a reply thereto within 30 days of 23 service of the answer. The response and reply time to any motion filed by either 24 party, including a motion to dismiss, shall be governed instead by Local Rule LR 25 7-2(b). 26 It is further ordered that any procedural defenses raised by Respondents 27 to the counseled amended petition shall be raised together in a single 28 consolidated motion to dismiss. In other words, the Court does not wish to 1 address any procedural defenses raised herein either in seriatum fashion in 2 multiple successive motions to dismiss or embedded in the answer. Procedural 3 defenses omitted from such motion to dismiss will be subject to potential 4 waiver. Respondents shall not file a response in this case that consolidates their 5 procedural defenses, if any, with their response on the merits, except pursuant 6 to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If 7 Respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they 8 shall do so within the single motion to dismiss not in the answer; and (b) they 9 shall specifically direct their argument to the standard for dismissal under § 10 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In 11 short, no procedural defenses, including exhaustion, shall be included with the 12 merits in an answer. All procedural defenses, including exhaustion, instead must 13 be raised by motion to dismiss. 14 It is further ordered that, in any answer filed on the merits, Respondents 15 shall specifically cite to and address the applicable state court written decision 16 and state court record materials, if any, regarding each claim within the response 17 as to that claim. 18 It is further ordered that any state court record and related exhibits filed 19 herein by either Hartzell or Respondents shall be filed with a separate index of 20 exhibits identifying the exhibits by number. The CM/ECF attachments that are 21 filed further shall be identified by the number or numbers of the exhibits in the 22 attachment. If the exhibits filed will span more than one ECF Number in the 23 record, the first document under each successive ECF Number shall be either 24 another copy of the index, a volume cover page, or some other document serving 25 as a filler, so that each exhibit under the ECF Number thereafter will be listed 26 under an attachment number (i.e., Attachment 1, 2, etc.). 27 It is further ordered that courtesy copies of exhibits shall not be provided. 28 1 DATED THIS 5th day of September 2025. 2

4 ANNER.TRAUM UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28