Rodriguez-Carillo v. Garrett

Opinion

4 * * *

5 RAMIRO RODRIGUEZ-CARILLO, Case No. 3:20-cv-00267-RCJ-WGC

6 Petitioner, v. ORDER 7

8 WARDEN GARRETT, et al.,

9 Respondents.

10 11 This is an action for habeas relief under 28 U.S.C. § 2254 brought by Ramiro 12 RRooddrriigquueezz--CCaarriilllloo,, a Nevada prisoner. Respondents have filed a motion to dismiss 13 RRooddrriigquueezz--CCaarriilllloo'’ss petition for writ of habeas corpus. ECF No. 10. As the bases for their 14 motion, respondents contend that the petition is time barred by 28 U.S.C. § 2244(d) and 15 wholly unexhausted. RRooddrriigquueezz--CCaarriilllloo has not filed an opposition to the motion. 16 Because respondents’ timeliness argument is meritorious and unopposed, the petition 17 will be dismissed. 18 The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a 19 one-year filing period for § 2254 habeas petitions in federal court. 28 U.S.C. 20 § 2244(d)(1). The one-year period begins to run from the latest of four possible 21 triggering dates, with the most common being the date on which the petitioner’s state 22 court conviction became final (by either the conclusion of direct appellate review or the 23 expiration of time for seeking such review). Id. Statutory tolling of the one-year time 24 limitation occurs while a “properly filed” state post-conviction proceeding or other 25 collateral review is pending. 28 U.S.C. § 2244(d)(2). In addition, the statute of limitations 26 “is subject to equitable tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631, 27 1 || 646 (2010). Equitable tolling is only appropriate, however, if the petitioner can show 2 || that: (1) that he has been pursuing his rights diligently, and (2) some extraordinary 3 || circumstance stood in his way and prevented timely filing. /d. at 649 (quoting Pace v. 4 || DiGuglielmo, 544 U.S. 408, 418 (2005)). 5 Here, the Nevada Court of Appeals affirmed Rodriguez-Carrillo’s conviction on 6 || February 17, 2016. ECF No. 12-9. He did not seek further direct review, so his 7 || conviction became final 90 days later, on May 18, 2016. See 28 U.S.C. § 2244(d)(1)(A); 8 || Jimenez v. Quarterman, 555 U.S. 113, 120 (2009). His subsequent attempts at 9 || collateral review were not initiated prior to the expiration of the one-year statutory 10 || period. See ECF Nos. 12-12, 12-29. Thus, his federal petition, effectively filed on April 11 || 30, 2020, is untimely. See Lott v. Mueller, 304 F.3d 918, 920 (9th Cir. 2002) (“A state 12 || prisoner challenging a non-capital state conviction or sentence must file a federal 13 || petition within one year from ‘the date on which the judgment became final by the 14 || conclusion of direct review or the expiration of the time for seeking such review.” 15 || (quoting § 2244(d)(1)(A))). 16 IT IS THEREFORE ORDERED that the respondents’ motion to dismiss (ECF No. 17 || 10) is GRANTED. Rodriguez-Carillo's petition for writ of habeas corpus (ECF No. 6) is 18 || DISMISSED as untimely. The Clerk shall enter judgment accordingly and close this 19 || case. 20 IT IS FURTHER ORDERED that a certificate of appealability will not issue as 21 || jurists of reason would not find the court's dismissal to be debatable or incorrect. 22 IT IS FURTHER ORDERED that respondents’ motion for leave to file exhibit 23 || under seal (ECF No. 13) is GRANTED. 24 DATED THIS 24th day of February, 2021. 25 26 . 57 UNITED STATEB DISTRICT JUDGE