Rick Shawn v. Terry Royal, et al.

• Court: District Court, D. Nevada
• Decided: October 8, 2025
• Docket: 3:24-cv-00476
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 RICK SHAWN, Case No. 3:24-cv-00476-ART-CLB 4 Petitioner, ORDER 5 v.

6 TERRY ROYAL, et al.,

7 Respondents.

8 Pro se Petitioner Rick Shawn filed a Petition for Writ of Habeas Corpus 9 under 28 U.S.C. § 2254, submitted a motion for appointment of counsel, and 10 paid his filing fee. (ECF Nos. 1-1 (“Petition”), 1-2, 6.) Following a review of the 11 Petition, this Court instructed Shawn to show cause why it should not be 12 dismissed as second or successive. (ECF No. 7.) Specifically, this Court found 13 that (1) Shawn’s Petition challenged the same July 7, 2011, judgment of 14 conviction that was challenged in case number 2:14-cv-00738-JAD-PAL,1 and (2) 15 the petition filed in case number 2:14-cv-00738-JAD-PAL was dismissed with 16 prejudice. (Id. at 3.) On December 2, 2024, Shawn responded to the Order to 17 Show Cause. (ECF No. 9.) Because Shawn’s response failed to demonstrate that 18 the Petition was not second or successive, this Court referred the Petition to the 19 Court of Appeals for the Ninth Circuit for consideration as an application for leave 20 to file a second or successive habeas corpus petition. (ECF No. 10.) 21 On September 29, 2025, the Ninth Circuit issued an Order (1) denying 22 Shawn’s application as it applies “to the Eighth Judicial District Court for Clark 23

24 1 Notably, this Court stated the following in its Order to Show Cause regarding the Judgment of Conviction which Shawn was challenging in his Petition: 25 “Although Shawn has numerous criminal cases and did not include the judgment of conviction date or the state court case number in his Petition (see ECF No. 1- 26 1 at 1–2), the Court has surmised that Shawn wishes to challenge the judgment 27 of conviction in case number 09C257062, given that this is the only case in which Shawn has been sentenced to ‘several life sentence[s]’ as he states in his Petition.” 28 (ECF No. 7 at 1 n.2.) 1 County, Nevada, 2011 conviction in Case No. 09C257062, which was the 2 conviction that the district court considered in 2:14-cv-00738-JAD-PAL,” and (2) 3 denying Shawn’s application as unnecessary “[t]o the extent [he] seeks to 4 challenge his Eighth Judicial District Court convictions in Case Nos. 09C258149 5 and 10C261008-2.” (ECF No. 17.) The Ninth Circuit then transferred Shawn’s 6 application back to this Court “to be processed as a § 2254 petition with respect 7 to Case Nos. 09C258149 and 10C261008-2.” (Id.) 8 This Court now conducts another review of the Petition under the new 9 judgments of conviction2 in accordance with the Rules Governing Section 2254 10 Cases and orders Shawn to show cause why his Petition should be dismissed 11 with prejudice as untimely. 12 I. BACKGROUND3 13 In Case No. 09C258149, the state court entered a judgment of conviction 14 and amended judgment of conviction on August 9, 2011, and October 16, 2017, 15 respectively, convicting Shawn of four counts of obtaining money under false 16 pretenses with a victim over the age of 60, three counts of burglary, one count of 17 possession of credit or debit car without cardholder’s consent, and one count of 18 attempt to obtain money under false pretenses. Shawn appealed, and the Nevada

19 2 Where a 28 U.S.C. § 2254 habeas corpus petitioner seeks relief from the 20 judgments of more than one state court, he “must file a separate petition covering the judgment or judgments of each court.” Rule 2(e) of the Rules Governing 21 Section 2254 Cases in the United States District Courts. However, a state petitioner may—but is not required to—attack multiple judgments from the same 22 court in a single petition, as is the case here. Adv. Comm. Notes to Rule 2 of the 23 Rules Governing Section 2254 Cases in the United States District Courts. If Shawn decides he would like to challenge his judgments of conviction in case 24 numbers 09C258149 and 10C261008-2 in different federal habeas petitions, he must indicate which judgment of conviction he wishes to challenge in this case 25 and then must file a second federal habeas petition in a different case before this Court to challenge the other judgment of conviction. If Shawn wishes to challenge 26 both judgments of convictions in a single petition, he need not do anything. 27 3 The Court takes judicial notice of the online docket records of the Eighth Judicial District Court (https://www.clarkcountycourts.us/portal) and Nevada 28 appellate courts (http://caseinfo.nvsupremecourt.us/public/caseSearch.do). 1 Supreme Court affirmed on July 26, 2012, in case number 59137. Shawn filed a 2 state habeas petition on January 22, 2013. The state court denied the petition, 3 Shawn appealed, and the Nevada Supreme Court affirmed on December 12, 4 2013, in case number 63001. Remittitur issued on February 24, 2014. Shawn 5 moved to correct his sentence on October 25, 2022. The state court denied the 6 motion on January 4, 2023. Shawn appealed, and the Nevada Court of Appeals 7 affirmed on September 19, 2024, in case number 86038-COA. 8 In Case No. 10C261008-2, the state court entered a judgment of conviction, 9 amended judgment of conviction, and second amended judgment of conviction 10 on April 21, 2011, June 26, 2015, and November 13, 2015, respectively, 11 convicting Shawn of seventeen counts of obtaining money under false pretenses 12 with a victim over the age of 60 and one count of exploiting of the elderly. Shawn 13 appealed, and the Nevada Supreme Court affirmed on February 8, 2012, in case 14 number 58380. Remittitur issued on March 6, 2012. Shawn filed a state habeas 15 petition on May 7, 2012. The state court denied habeas relief on June 24, 2014. 16 Shawn appealed, but the Nevada Supreme Court dismissed the appeal as 17 untimely on June 30, 2015, in case number 66376. Remittitur issued on July 18 27, 2015. Shawn moved to correct his sentence on October 25, 2022. The state 19 court denied the motion on January 4, 2023. Shawn appealed, and the Nevada 20 Court of Appeals affirmed on September 19, 2024, in case number 86039-COA. 21 Shawn transmitted his instant Petition on or about October 16, 2024. (ECF 22 No. 1-1.) 23 II. DISCUSSION 24 Pursuant to Habeas Rule 4, the assigned judge must examine the habeas 25 petition and order a response unless it “plainly appears” that the petitioner is not 26 entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019). 27 This rule allows courts to screen and dismiss petitions that are patently frivolous, 28 vague, conclusory, palpably incredible, or false. Hendricks v. Vasquez, 908 F.2d 1 490, 491 (9th Cir. 1990) (collecting cases). The court may also dismiss claims at 2 screening for procedural defects. See Boyd v. Thompson, 147 F.3d 1124, 1128 3 (9th Cir. 1998). It appears that Shawn’s Petition is untimely. 4 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes a 5 1-year period of limitations for state prisoners to file a federal habeas petition 6 pursuant to 28 U.S.C. § 2254. The 1-year limitation period begins to run from 7 the latest of four possible triggering dates, with the most common being the date 8 on which the petitioner’s judgment of conviction became final by either the 9 conclusion of direct appellate review or the expiration of the time for seeking such 10 review. 28 U.S.C. § 2244(d)(1)(A). For a Nevada prisoner pursuing a direct appeal, 11 a conviction becomes final when the 90-day period for filing a petition for 12 certiorari in the Supreme Court of the United States expires after a Nevada 13 appellate court has entered judgment or the Supreme Court of Nevada has denied 14 discretionary review. Harris v. Carter, 515 F.3d 1051, 1053 n.1 (9th Cir. 2008); 15 Shannon v. Newland, 410 F.3d 1083, 1086 (9th Cir. 2005); Sup. Ct. R. 13. The 16 federal limitations period is tolled while “a properly filed application for State 17 post-conviction or other collateral review with respect to the pertinent judgment 18 or claim is pending.” 28 U.S.C. § 2244(d)(2). But no statutory tolling is allowed 19 for the period between finality of a direct appeal and the filing of a petition for 20 post-conviction relief in state court because no state court proceeding is pending 21 during that time. Nino v. Galaza, 183 F.3d 1003, 1006–07 (9th Cir. 1999); 22 Rasberry v. Garcia, 448 F.3d 1150, 1153 n.1 (9th Cir. 2006). 23 In Case No. 09C258149, Shawn’s direct appellate review concluded on July 24 26, 2012, with the Nevada Supreme Court’s affirmation of his judgment of 25 conviction. As such, Shawn’s conviction became final when the time expired for 26 filing a petition for writ of certiorari with the United States Supreme Court 90 27 days later on October 24, 2012. The federal statute of limitations began to run 28 the following day: October 25, 2012. Shawn timely filed his state habeas petition 1 on January 22, 2013, tolling the AEDPA clock. As a result, 89 days elapsed 2 between the finality of the judgment and the filing of the state habeas petition. 3 The remaining 276 days of the AEDPA limitation period was statutorily tolled 4 during the pendency of all proceedings related to Shawn’s state habeas petition. 5 Tolling ended on February 24, 2014, when the remittitur issued for the order of 6 affirmance by the Nevada Supreme Court. The AEDPA clock restarted the 7 following day, February 24, 2014, and expired 276 days later on November 27, 8 2014. Shawn’s instant Petition was transmitted to this Court on or about October 9 16, 2024. Because Shawn’s Petition was mailed almost 10 years after his AEDPA 10 statute of limitations expired, it appears that it is untimely.4 11 In Case No. 10C261008-2, Shawn’s direct appellate review concluded on 12 February 8, 2012, with the Nevada Supreme Court’s affirmation of his judgment 13 of conviction. As such, Shawn’s conviction became final when the time expired 14 for filing a petition for writ of certiorari with the United States Supreme Court 90 15

16 4 Although Shawn moved to correct his sentence on October 25, 2022, it was filed after the AEDPA clock had already expired, so it could not have tolled an already 17 expired limitations period. See Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). And regarding Shawn’s amended judgment of conviction, it is unclear what the 18 state court changed from Shawn’s original judgment of conviction. However, even if this Court were to find, arguendo, that the amended judgment of conviction 19 amounted to a new, intervening judgment of conviction for purposes of restarting 20 his AEDPA limitations period, Shawn’s Petition would still be untimely. Gonzalez v. Sherman, 873 F.3d 763, 770 (9th Cir. 2017) (“[T]he amendment [to the 21 judgment of conviction] removed an invalid basis for incarcerating [the petitioner], and provided a new and valid intervening judgment to which he was then being 22 held in custody.”). Under the scenario, Shawn did not file a direct appeal 23 challenging his amended judgment of conviction, so his conviction became final on the date in which the time for seeking direct review expired: November 15, 24 2017. See Nev. R. App. P. 4(b)(1) (requiring a notice of appeal to “be filed with the district court clerk within 30 days after the entry of the judgment or order being 25 appealed”); Gonzalez v. Thaler, 565 U.S. 134, 137 (2012) (when a state prisoner “does not seek review in a State’s highest court, the judgment becomes ‘final’ on 26 the date that the time for seeking such review expires”). The federal statute of 27 limitations thus began to run the following day: November 16, 2017. Accordingly, the limitations period expired 365 days later on November 16, 2018, making the 28 Petition untimely by almost 6 years. 1 days later on May 8, 2012. The federal statute of limitations began to run the 2 following day: May 9, 2012. Shawn timely filed his state habeas petition on May 3 7, 2012, tolling the AEDPA clock. As a result, no days elapsed between the finality 4 of the judgment and the filing of the state habeas petition. The remaining 365 5 days of the AEDPA limitation period was statutorily tolled during the pendency 6 of all proceedings related to Shawn’s state habeas petition. Tolling ended on July 7 27, 2015, when the remittitur issued for the order of affirmance by the Nevada 8 Supreme Court. The AEDPA clock restarted the following day, July 28, 2015, and 9 expired 365 days later on July 28, 2016. Shawn’s instant Petition was 10 transmitted to this Court on or about October 16, 2024. Because Shawn’s 11 Petition was mailed more than 8 years after his AEDPA statute of limitations 12 expired, it appears that it is untimely.5 13 Shawn must show cause why his Petition should not be dismissed with 14 prejudice as time barred. In this regard, Shawn is informed that the 1-year 15 limitation period may be equitably tolled. Equitable tolling is appropriate only if 16 the petitioner can show that: (1) he has been pursuing his right diligently, and 17

18 5 Although Shawn moved to correct his sentence on October 25, 2022, it was filed after the AEDPA clock had already expired, so it could not have tolled an already 19 expired limitations period. See Jiminez, 276 F.3d at 482. And regarding Shawn’s 20 amended judgment of conviction and second amended judgment of conviction, it is unclear what the state court changed from Shawn’s original judgment of 21 conviction. However, even if this Court were to find that the amended judgment of conviction and/or second amended judgment of conviction amounted to new, 22 intervening judgments of convictions for purposes of restarting his AEDPA 23 limitations period, Shawn’s Petition would still be untimely. Under these scenarios, Shawn did not file direct appeals challenging his amended judgments 24 of conviction, so his convictions became final on the dates in which the time for seeking direct review expired: July 26, 2015, and December 13, 2015, 25 respectively. See Nev. R. App. P. 4(b)(1). The federal statute of limitations thus began to run the following days: July 27, 2015, and December 14, 2015, 26 respectively. Accordingly, the limitations periods expired 365 days later on July 27 27, 2016, and December 14, 2016, respectively, making the Petition untimely by 8 years. 28 1 (2) some extraordinary circumstance stood in his way and prevented timely filing. 2 Holland v. Florida, 560 U.S. 631, 649 (2010). “[E]quitable tolling is unavailable in 3 most cases.” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). And “‘the 4 threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest 5 the exceptions swallow the rule.’” Miranda v. Castro, 292 F.3d 1063, 1066 (9th 6 Cir. 2002). Shawn ultimately has the burden of proof on this “extraordinary 7 exclusion.” Id. at 1065. Shawn must demonstrate a causal relationship between 8 the extraordinary circumstance and the lateness of his filing. E.g., Spitsyn v. 9 Moore, 345 F.3d 796, 799 (9th Cir. 2003); accord Bryant v. Ariz. Att’y Gen., 499 10 F.3d 1056, 1061 (9th Cir. 2007). 11 Shawn further is informed that, under certain circumstances, the 1-year 12 limitation period may begin running on a later date6 or may be statutorily tolled. 13 And Shawn is informed that if he seeks to avoid application of the limitation 14 period based upon a claim of actual innocence, he must come forward with new 15 reliable evidence tending to establish actual factual innocence, i.e., tending to 16 6 28 U.S.C. § 2244(d)(1) provides as follows: 17 A 1-year period of limitation shall apply to an application for a writ 18 of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-- 19 (A) the date on which the judgment became final by the 20 conclusion of direct review or the expiration of the time for seeking such review; 21 (B) the date on which the impediment to filing an application created by State action in violation of the 22 Constitution or laws of the United States is removed, if 23 the applicant was prevented from filing by such State action; 24 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the 25 right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral 26 review; or 27 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through 28 the exercise of due diligence. 1 || establish that no juror acting reasonably would have found him guilty beyond a 2 || reasonable doubt. See McQuiggin v. Perkins, 569 U.S. 383 (2013); House v. Bell, 3 || 547 U.S. 518 (2006); Lee v. Lampert, 653 F.3d 929 (9th Cir. 2011). In this regard, 4 || “actual innocence’ means factual innocence, not mere legal insufficiency.” 5 || Bousley v. United States, 523 U.S. 614, 623 (1998). 6 || II. CONCLUSION 7 It is therefore ordered that Shawn show cause on or before November 14, 8 || 2025, unless more time is requested, why his Petition should not be dismissed 9 || as untimely. 10 It is further kindly ordered that the Clerk of the Court send a courtesy copy 11 || of this Order and the Ninth Circuit Order (ECF No. 17) to Shawn at High Desert 12 || State Prison. 13 It is further ordered that Shawn file a notice of change of address on or 14 || before November 14, 2025.7 15 DATED THIS 8th day of October 2025. 16 oan Ares Nosed 18 ANNE R. TRAUM 19 UNITED STATES DISTRICT JUDGE

20 21 22 23 24 25 26 27 ——_—_——_ 7 The Ninth Circuit’s Order was returned as undeliverable to Shawn at Ely State 28 || Prison. (ECF No. 19.)