3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 MICHAEL GARDENHIRE, Case No. 3:25-cv-00657-MMD-CLB
7 Petitioner, ORDER v. 8
9 JOHN HENLEY, et al.,
10 Respondents. 11 Pro se Petitioner Michael Gardenhire has filed a Petition for Writ of Habeas Corpus 12 under 28 U.S.C. § 2254 (EFC No. 1-1 (“Petition”)), a motion for leave to proceed in forma 13 pauperis (ECF Nos. 1 (“IFP Motion”)), and a motion for appointment of counsel (ECF 1-2 14 (“Motion for Counsel”)). Based on Gardenhire’s Financial Certificate (ECF No. 4), the 15 Court finds that good cause exists to grant the IFP Motion. However, following an initial 16 review of the Petition under the Rules Governing Section 2254 Cases (“Habeas Rules”), 17 the Court dismisses the Petition as untimely and denies the Motion for Counsel. 18 I. BACKGROUND1 19 Gardenhire challenges a conviction and sentence imposed by the Eighth Judicial 20 District Court for Clark County. State of Nevada v. Michael Gardenhire, C-17-320625-1. 21 On February 9, 2018, and May 9, 2018, the state court entered a judgment of conviction 22 and amended judgment of conviction, respectively, pursuant to an Alford plea, convicting 23 Gardenhire of second-degree murder with the use of a deadly weapon. Gardenhire was 24 sentenced to life with the possibility of parole after 120 months for the second-degree 25 murder conviction plus a consecutive sentence of 96 to 240 months for the deadly weapon 26 enhancement. Gardenhire appealed, but the Nevada Supreme Court dismissed the 27
28 1The Court takes judicial notice of the online docket records of the Eighth Judicial District Court for Clark County (https://perma.cc/Y5GT-CXTV) and the Nevada appellate 2 No. 77701. Remittitur issued on March 13, 2019. 3 Gardenhire filed a state habeas petition on June 14, 2018. Michael Gardenhire v. 4 Brian Williams, A-18-776086-W. The state court denied the petition on November 7, 2018. 5 It does not appear that Gardenhire appealed this decision. 6 Gardenhire filed state habeas petitions on August 16, 2019, and October 1, 2019. 7 Michael Gardenhire v. State of Nevada, A-19-800479-W. The state court denied the 8 petitions, Gardenhire appealed, and the Nevada Court of Appeals affirmed on October 9 26, 2021, finding that the petitions were untimely. Michael Kevin Gardenhire v. State of 10 Nevada, No. 82648-COA. Remittitur issued on November 30, 2021. 11 Gardenhire filed a state habeas petition on December 11, 2024. Michael 12 Gardenhire v. State of Nevada, A-19-800479-W. The state court denied the petition, 13 Gardenhire appealed, and the Nevada Court of Appeals affirmed on September 16, 2025, 14 finding that the petition was untimely. Michael Kevin Gardenhire v. State of Nevada, No. 15 90260-COA. Remittitur issued on October 24, 2025. 16 II. DISCUSSION 17 Habeas Rule 4 requires the assigned judge to examine a habeas petition and order 18 a response unless it “plainly appears” that the petition is not entitled to relief. See Valdez 19 v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019). This rule allows courts to screen and 20 dismiss petitions that are patently frivolous, vague, conclusory, palpably incredible, false, 21 or plagued by procedural defects. Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 22 1998); Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (collecting cases). 23 Gardenhire’s Petition is untimely and not cognizable. 24 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes a one- 25 year period of limitations for state prisoners to file a federal habeas petition pursuant to 26 28 U.S.C. § 2254. The one-year limitation period begins to run from the latest of four 27 possible triggering dates, with the most common being the date on which the petitioner’s 28 Judgment of Conviction became final by either the conclusion of direct appellate review 2 limitations period is tolled while “a properly filed application for State post-conviction or 3 other collateral review with respect to the pertinent judgment or claim is pending.” 28 4 U.S.C. § 2244(d)(2). But no statutory tolling is allowed for the period between finality of a 5 direct appeal and the filing of a petition for post-conviction relief in state court because no 6 state court proceeding is pending during that time. Nino v. Galaza, 183 F.3d 1003, 1006- 7 07 (9th Cir. 1999); Rasberry v. Garcia, 448 F.3d 1150, 1153 n.1 (9th Cir. 2006). 8 Here, Gardenhire’s conviction became final when the time expired for filing a direct 9 appeal of his amended judgment of conviction to the Nevada appellate courts on June 8, 10 2018.2 See Nev. R. App. P. 4(b)(1) (requiring a notice of appeal to “be filed with the district 11 court clerk within 30 days after the entry of the judgment or order being appealed”); 12 Gonzalez v. Thaler, 565 U.S. 134, 137 (2012) (when a state prisoner “does not seek 13 review in a State’s highest court, the judgment becomes ‘final’ on the date that the time 14 for seeking such review expires”). The federal statute of limitations thus began to run the 15 following day: June 9, 2018. Gardenhire timely filed his state habeas petition June 14, 16 2018, tolling the AEDPA clock. As a result, 5 days elapsed between the finality of the 17 judgment and the filing of the state habeas petition. The remaining 360 days of the 18 AEDPA limitation period was statutorily tolled during the pendency of all proceedings 19 related to Gardenhire’s state habeas petition. Tolling ended on November 7, 2018, when 20 the state court denied Gardenhire’s state habeas petition given that he did not file an 21 appeal of that decision. The AEDPA clock restarted the following day, November 8, 2018, 22 and expired 360 days later, on November 3, 2019.3 Accordingly, Gardenhire filed his 23 Petition six years after his AEDPA limitation period expired. 24 2Although Gardenhire filed a direct appeal, it was dismissed by the Nevada 25 Supreme Court as untimely. And, importantly, if a petitioner files an appeal that is later dismissed as untimely, finality occurs on the date the petitioner had to file a timely appeal, 26 not the date the state appellate court dismissed the appeal as untimely. Randle v. Crawford, 604 F.3d 1047, 1057 (9th Cir. 2010). 27 3Although Gardenhire commenced two other state habeas proceedings, they 28 would only toll the federal limitations period if they were “properly filed.” The Supreme 2 limitations period began running on a later date because “[t]he facts necessary to raise 3 this [Petition] weren’t available” until the Nevada Court of Appeals decided Vasquez v. 4 State.4 (ECF No. 1-1 at 4.) Gardenhire fails to demonstrate that delayed accrual—even if 5 deemed appropriate under 28 U.S.C. § 2244
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3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 MICHAEL GARDENHIRE, Case No. 3:25-cv-00657-MMD-CLB
7 Petitioner, ORDER v. 8
9 JOHN HENLEY, et al.,
10 Respondents. 11 Pro se Petitioner Michael Gardenhire has filed a Petition for Writ of Habeas Corpus 12 under 28 U.S.C. § 2254 (EFC No. 1-1 (“Petition”)), a motion for leave to proceed in forma 13 pauperis (ECF Nos. 1 (“IFP Motion”)), and a motion for appointment of counsel (ECF 1-2 14 (“Motion for Counsel”)). Based on Gardenhire’s Financial Certificate (ECF No. 4), the 15 Court finds that good cause exists to grant the IFP Motion. However, following an initial 16 review of the Petition under the Rules Governing Section 2254 Cases (“Habeas Rules”), 17 the Court dismisses the Petition as untimely and denies the Motion for Counsel. 18 I. BACKGROUND1 19 Gardenhire challenges a conviction and sentence imposed by the Eighth Judicial 20 District Court for Clark County. State of Nevada v. Michael Gardenhire, C-17-320625-1. 21 On February 9, 2018, and May 9, 2018, the state court entered a judgment of conviction 22 and amended judgment of conviction, respectively, pursuant to an Alford plea, convicting 23 Gardenhire of second-degree murder with the use of a deadly weapon. Gardenhire was 24 sentenced to life with the possibility of parole after 120 months for the second-degree 25 murder conviction plus a consecutive sentence of 96 to 240 months for the deadly weapon 26 enhancement. Gardenhire appealed, but the Nevada Supreme Court dismissed the 27
28 1The Court takes judicial notice of the online docket records of the Eighth Judicial District Court for Clark County (https://perma.cc/Y5GT-CXTV) and the Nevada appellate 2 No. 77701. Remittitur issued on March 13, 2019. 3 Gardenhire filed a state habeas petition on June 14, 2018. Michael Gardenhire v. 4 Brian Williams, A-18-776086-W. The state court denied the petition on November 7, 2018. 5 It does not appear that Gardenhire appealed this decision. 6 Gardenhire filed state habeas petitions on August 16, 2019, and October 1, 2019. 7 Michael Gardenhire v. State of Nevada, A-19-800479-W. The state court denied the 8 petitions, Gardenhire appealed, and the Nevada Court of Appeals affirmed on October 9 26, 2021, finding that the petitions were untimely. Michael Kevin Gardenhire v. State of 10 Nevada, No. 82648-COA. Remittitur issued on November 30, 2021. 11 Gardenhire filed a state habeas petition on December 11, 2024. Michael 12 Gardenhire v. State of Nevada, A-19-800479-W. The state court denied the petition, 13 Gardenhire appealed, and the Nevada Court of Appeals affirmed on September 16, 2025, 14 finding that the petition was untimely. Michael Kevin Gardenhire v. State of Nevada, No. 15 90260-COA. Remittitur issued on October 24, 2025. 16 II. DISCUSSION 17 Habeas Rule 4 requires the assigned judge to examine a habeas petition and order 18 a response unless it “plainly appears” that the petition is not entitled to relief. See Valdez 19 v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019). This rule allows courts to screen and 20 dismiss petitions that are patently frivolous, vague, conclusory, palpably incredible, false, 21 or plagued by procedural defects. Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 22 1998); Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (collecting cases). 23 Gardenhire’s Petition is untimely and not cognizable. 24 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes a one- 25 year period of limitations for state prisoners to file a federal habeas petition pursuant to 26 28 U.S.C. § 2254. The one-year limitation period begins to run from the latest of four 27 possible triggering dates, with the most common being the date on which the petitioner’s 28 Judgment of Conviction became final by either the conclusion of direct appellate review 2 limitations period is tolled while “a properly filed application for State post-conviction or 3 other collateral review with respect to the pertinent judgment or claim is pending.” 28 4 U.S.C. § 2244(d)(2). But no statutory tolling is allowed for the period between finality of a 5 direct appeal and the filing of a petition for post-conviction relief in state court because no 6 state court proceeding is pending during that time. Nino v. Galaza, 183 F.3d 1003, 1006- 7 07 (9th Cir. 1999); Rasberry v. Garcia, 448 F.3d 1150, 1153 n.1 (9th Cir. 2006). 8 Here, Gardenhire’s conviction became final when the time expired for filing a direct 9 appeal of his amended judgment of conviction to the Nevada appellate courts on June 8, 10 2018.2 See Nev. R. App. P. 4(b)(1) (requiring a notice of appeal to “be filed with the district 11 court clerk within 30 days after the entry of the judgment or order being appealed”); 12 Gonzalez v. Thaler, 565 U.S. 134, 137 (2012) (when a state prisoner “does not seek 13 review in a State’s highest court, the judgment becomes ‘final’ on the date that the time 14 for seeking such review expires”). The federal statute of limitations thus began to run the 15 following day: June 9, 2018. Gardenhire timely filed his state habeas petition June 14, 16 2018, tolling the AEDPA clock. As a result, 5 days elapsed between the finality of the 17 judgment and the filing of the state habeas petition. The remaining 360 days of the 18 AEDPA limitation period was statutorily tolled during the pendency of all proceedings 19 related to Gardenhire’s state habeas petition. Tolling ended on November 7, 2018, when 20 the state court denied Gardenhire’s state habeas petition given that he did not file an 21 appeal of that decision. The AEDPA clock restarted the following day, November 8, 2018, 22 and expired 360 days later, on November 3, 2019.3 Accordingly, Gardenhire filed his 23 Petition six years after his AEDPA limitation period expired. 24 2Although Gardenhire filed a direct appeal, it was dismissed by the Nevada 25 Supreme Court as untimely. And, importantly, if a petitioner files an appeal that is later dismissed as untimely, finality occurs on the date the petitioner had to file a timely appeal, 26 not the date the state appellate court dismissed the appeal as untimely. Randle v. Crawford, 604 F.3d 1047, 1057 (9th Cir. 2010). 27 3Although Gardenhire commenced two other state habeas proceedings, they 28 would only toll the federal limitations period if they were “properly filed.” The Supreme 2 limitations period began running on a later date because “[t]he facts necessary to raise 3 this [Petition] weren’t available” until the Nevada Court of Appeals decided Vasquez v. 4 State.4 (ECF No. 1-1 at 4.) Gardenhire fails to demonstrate that delayed accrual—even if 5 deemed appropriate under 28 U.S.C. § 2244(d)(1)(B), (C), or (D), which the Court does 6 not find—would affect the timeliness of his Petition given that the operative start date of 7 his AEDPA limitations period would be the date Vasquez was decided in 2020, and 8 Gardenhire did not seek habeas relief within a year of Vasquez being decided. See Dodd 9 v. United States, 545 U.S. 353, 360 (2005) (concluding that, under the similar provision 10 in 28 U.S.C. § 2255(f), the one-year limitations period started running on the date in which 11 the Court initially recognized the right asserted). As such, the Court finds that 12 Gardenhire’s Petition is untimely. 13 Moreover, Gardenhire’s sole claim for relief is not cognizable. In his Petition, 14 Gardenhire alleges that the Department of Parole and Probation “was not in compliance 15 with its statutory mandate when it created” his Presentence Investigation Report because 16 it included “subjective recommendations regarding how [the Department of Parole and 17 Probation] thinks criminal defendants ought to be sentenced” rather than “in compliance 18 with NRS 213.10988 wherein the Legislature commanded [the Department of Parole and 19 Probation] to adopt by regulation ‘standards’ based upon ‘objective criteria.’” (ECF No. 1- 20 Court has held that if a habeas petitioner’s state postconviction petition was rejected by 21 the state court as untimely, it is not “properly filed” within the meaning of the statutory tolling provision of the AEDPA limitations period. Pace v. DiGuglielmo, 544 U.S. 408, 417 22 (2005) (“Because the state court rejected petitioner’s PCRA petition as untimely, it was not ‘properly filed,’ and he is not entitled to statutory tolling under § 2244(d)(2).”); see also 23 Artuz v. Bennett, 531 U.S. 4, 8 (2000) (“[A]n application is ‘properly filed’ when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. 24 These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee.”). 25 Gardenhire’s two other state habeas petitions were not properly filed given that they were found to be untimely under state procedural rules. 26 4In Vasquez v. State, the Nevada Court of Appeals remanded the case to the 27 district court, concluding that it “abused its discretion by sentencing Vasquez without due consideration to his objections to the PSI.” No. 79409-COA, 2020 WL 4696206, *1 (Nev. 28 App. Aug. 12, 2020). 2 federal habeas corpus relief may be granted “only on the ground that [Petitioner] is in 3 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 4 § 2254(a). Federal habeas relief is unavailable for mere violations of state 5 law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (explaining that “it is not the 6 province of a federal habeas corpus court to reexamine state-court determinations on 7 state-law questions”). Second, a petitioner “may not . . . transform a state-law issue into 8 a federal one merely by asserting a violation of due process.” Langford v. Day, 110 F.3d 9 1380, 1389 (9th Cir. 1996). Third, matters relating to state sentencing are not generally 10 cognizable on federal habeas review. See Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th 11 Cir. 1989) (explaining that the question of whether a prior conviction qualifies for a 12 sentence enhancement under California law is not cognizable under federal 13 habeas). Finally, NRS § 213.10988 was repealed in 2021. Accordingly, even if 14 Gardenhire could demonstrate that his Petition is timely, his Petition is not cognizable. 15 III. CONCLUSION 16 It is therefore ordered that the IFP Motion (ECF No. 1) is granted. 17 It is further ordered that the Petition (ECF No. 1-1) is dismissed with prejudice. A 18 certificate of appealability is denied, as jurists of reason would not find dismissal of the 19 Petition for the reasons stated herein to be debatable or wrong. 20 It is further ordered that the Motion for Counsel (ECF No. 1-2) is denied as moot. 21 It is further kindly ordered that the Clerk of Court (1) add Nevada Attorney General 22 Aaron D. Ford as counsel for Respondents,5 (2) informally serve the Nevada Attorney 23 General with the Petition (ECF No. 1-1), this Order, and all other filings in this matter by 24 sending notices of electronic filing to the Nevada Attorney General’s office, (3) enter final 25 judgment accordingly, dismissing this action with prejudice, and (4) close this case. 26
27 5No response is required from Respondents other than to respond to any orders 28 of a reviewing court. 1 DATED THIS 2" Day of December 2025. MIRANDA M. DU 4 UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28