Hood v. Johnson

• Court: District Court, D. Nevada
• Decided: March 10, 2022
• Docket: 2:22-cv-00117
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Perry Allison Hood, Case No.: 2:22-cv-00117-JAD-VCF

4 Petitioner v. Order Directing Petitioner to Show Cause 5 Why this Case Should Not Be Dismissed as Calvin Johnson, et al., Time Barred 6 Respondents 7

8 Petitioner Perry Hood brings this pro se 28 U.S.C. § 2254 petition for a writ of habeas 9 corpus to challenge his 2013 state-court conviction for use of a minor in producing pornography 10 or as a subject of sexual portrayal in performance.1 After my review of the petition under Rule 4 11 of the Rules Governing Section 2254 Cases in the United States District Courts, it appears that 12 this action was filed almost three years too late. So I order Hood to show cause in writing by 13 April 10, 2022, why I should not dismiss this action as time-barred. 14 Why it appears that the petition is untimely 15 Hood pleaded no contest to one count of use of a minor in producing pornography or as a 16 subject of sexual portrayal in performance. On December 4, 2013, the state district court entered 17 its judgment of conviction.2 Hood did not appeal. 18 Hood filed a state habeas corpus petition in the Nevada Supreme Court of May 22, 2014, 19 invoking that court’s original jurisdiction.3 The Nevada Supreme Court declined to exercise its 20 21 1 ECF No. 1-2. 22 2 ECF No. 1-4 at 31. 3 I take judicial notice of the online records from the state-court proceedings. Hood v. District 23 Court, Case No. 65729, http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=33923 (report generated February 15, 2022). 1 original jurisdiction, denied the petition on June 12, 2014, denied rehearing on July 23, 2014, and 2 issued a notice in lieu of remittitur on August 20, 2014.4 3 Hood filed a proper-person post-conviction habeas corpus petition in state district court 4 on July 7, 2014, while his original-jurisdiction habeas corpus proceedings still were pending in

5 the Nevada Supreme Court.5 Hood then filed a counseled supplemental petition on July 8, 6 2016.6 The state district court dismissed the petition on March 23, 2017.7 Hood appealed, and 7 the Nevada Court of Appeals affirmed on May 16, 2018.8 Remittitur issued on June 13, 2018.9 8 Hood then sent his federal habeas corpus petition under § 2254 to this court. He did not 9 state when he handed the petition to a correctional officer for delivery to the court. However, he 10 dated the petition January 9, 2022, and the court received it on January 21, 2022. 11 Hood had one year from the date that judgment of conviction became final to file a 12 federal habeas corpus petition under § 2254.10 The judgment became final on January 3, 2014, 13 when the time to appeal expired.11 A properly filed state petition for post-conviction review or 14 other collateral review tolls the federal one-year period while the state petition is pending.12

15 Hood’s petition filed with the Nevada Supreme Court qualifies for tolling even though that court 16

17 4 Id. 5 See ECF No. 1-5 at 1. 18 6 Id. at 1. 19 7 Id. at 34. 20 8 Id. at 43. 9 Hood v. Warden, Case No. 72870. 21 http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=43095 (report generated February 15, 2022). 22 10 28 U.S.C. § 2244(d)(1)(A). 23 11 See Nev. R. App. P. 4(b)(1). 12 28 U.S.C. § 2254(d)(2). 1 declined to exercise its original jurisdiction.13 The tolling for that petition concluded with the 2 issuance of the notice in lieu of remittitur.14 By that time, Hood’s post-conviction habeas corpus 3 petition was pending in the state district court. The tolling thus continued while that petition was 4 pending. The tolling for the post-conviction petition concluded when the remittitur issued on

5 June 13, 2018.15 6 Even with that tolling, Hood’s federal petition is untimely. Between the finality of his 7 judgment of conviction and the filing of the habeas corpus petition in the Nevada Supreme 8 Court, 138 non-tolled days passed. Between the conclusion of Hood’s state post-conviction 9 habeas corpus petition and Hood’s dating of his federal petition, 1,305 non-tolled days passed. A 10 total of 1,443 non-tolled days passed, which is well beyond the one-year (365-day) period of 11 limitation. In short, the one-year period of limitation expired on Monday, January 28, 2019,16 12 almost three years before Hood dated his federal petition. So it appears that Hood’s federal 13 habeas corpus petition is untimely, and I give him the opportunity to show cause why I should 14 not dismiss this action for that reason.

15 Conclusion 16 IT THEREFORE IS ORDERED that the Clerk of the Court is directed to FILE the 17 petition for a writ of habeas corpus and its exhibits. 18 IT FURTHER IS ORDERED that petitioner must show cause in writing by April 10, 19 2022, why this habeas action should not be dismissed as untimely. If petitioner does not file 20

21 13 Blair v. Crawford, 275 F.3d 1156, 1159 (9th Cir. 2002). 22 14 See Jefferson v. Budge, 419 F.3d 1013, 1015 n.2 (9th Cir. 2005). 15 Id. 23 16 Under Rule 6(a)(1)(C) of the Federal Rules of Civil Procedure, the deadline was extended from Saturday, January 26, 2019, to the next judicial day. 1}}a showing of cause by this deadline, this court will dismiss the action as untimely without further prior notice. 3 Dated: March 10, 2022 oamanS USS. District Judged ennif cA Dorsey 5 6 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23