Saldana-Garcia v. Williams Sr

Opinion

1 Rene L. Valladares Federal Public Defender 2 Nevada State Bar No. 11479 3 *S. Alex Spelman Assistant Federal Public Defender 4 Nevada Bar No. 14278 411 E. Bonneville Ave., Ste. 250 5 Las Vegas, Nevada 89101 6 (702) 388-6577 Alex_Spelman@fd.org 7 8 *Attorney for Petitioner Ubaldo Saldana-Garcia

10 UNITED STATES DISTRICT COURT 11 DISTRICT OF NEVADA

12 Ubaldo Saldana-Garcia,

13 Petitioner, Case No. 2:19-cv-00441-APG-BNW

14 Unopposed motion to extend v. deadline to file amended petition 15 Brian Williams, et al., 16

Respondents 17

18 Saldana-Garcia respectfully requests an extension of 52 days, up to and 19 including October 31, 2019, to file his amended petition. This is his first request 20 for an extension. This deadline reflects the statute-of-limitations deadline in this 21 case, and thus, this extension would allow Saldana-Garcia to enjoy the full year 22 Congress has afforded him to prepare and file a habeas corpus petition for federal 23 relief. Respondents do not oppose, though the parties agree that their waiver does 24 not constitute tacit agreement with any of the foregoing, nor should it be construed 25 as a waiver of any procedural defenses. 26 27 1 POINTS AND AUTHORITIES 2 Saldana-Garcia seeks federal habeas relief from this Court.1 This Court 3 appointed counsel2 and set a deadline of September 9, 2019 for counsel to file an 4 amended petition on Saldana-Garcia’s behalf.3 This is his first request for an 5 extension and respondents do not oppose. 6 Saldana-Garcia is moving for an extension because he has calculated a 7 statute-of-limitations deadline of October 31, 2019, to seek federal habeas relief, 8 and he would like to take advantage of the full time Congress has afforded him to 9 prepare and file his petition. Briefly, Saldana-Garcia has calculated this deadline 10 because the time for him to seek certiorari from the United States Supreme Court 11 expired on Sunday, May 31, 2015, rendering a true deadline of Monday, June 1, 12 2015.4 Saldana-Garcia then used 63 days from that point to prepare and properly 13 file a timely state petition for writ of habeas corpus on August 3, 2015. 14 The state courts did not finally resolve these post-conviction proceedings until 15 the Nevada Supreme Court’s issuance of remittitur on January 2, 2019. From this 16 point, with 302 days remaining for his federal period of limitations, Saldana- 17 Garcia’s statute-of-limitations deadline to seek federal habeas relief became October 18 31, 2019.5 As of the date of this filing, then, he still has 52 days remaining to seek 19 federal habeas relief. Here, it is to his advantage to utilize all of it. 20 Further, the demands of other cases have Saldana-Garcia from meeting the 21 current September 9, 2019 deadline. See, e.g., Vincent v. McDaniel, No. 17-16992, 22

23 1 ECF No. 4. 24 2 ECF No. 6. 25 3 ECF No. 9. 26 4 Union Nat. Bank of Wichita, Kan. v. Lamb, 337 U.S. 38, 40–41 (1949) (holding that if the deadline to seek cert falls on a Sunday, the deadline extends to Monday). 27 5 See generally 28 U.S.C. § 2244(d). 1 ECF No. 48 (9th Cir. June 14, 2019); Cardenas v. Baker, No. PC-5364 (Nev. 5th J. 2 Dist. Ct. June 19, 2019); Holmes v. Gentry, No. 2:17-cv-01980-RFB-GWF (D. Nev. 3 Aug. 2, 2019); Flores v. Williams, No. A-19-794716-W (Nev. 8th J. Dist. Ct. Aug. 2, 4 2019); Morales v. Baker, No. A-19-794622-W (Nev. 8th J. Dist. Ct. Aug. 2, 2019); 5 Berry v. Baker, No. 3:16-cv-00470-MMD-WGC (D. Nev. Aug. 8, 2019); Nicholson v. 6 Baker, No. 3:16-cv-00486 (D. Nev. Aug. 23, 2019). Further, counsel has been 7 working diligently to meet an upcoming amended-petition deadline in the case of 8 McNair v. Baca, No. 3:18-cv-00308-HDM-CBC (D. Nev.). 9 Furthermore, counsel was on leave from June 21–23, and then again from 10 June 29 through July 8. After that, counsel attended in an out-of-town, three-day 11 seminar on August 12–14, 2019. 12 Finally, during this time, counsel was preparing for a September 4, 2019, 13 evidentiary hearing before this Court in the case of Davis v. Neven, No. 2:15-cv- 14 01574-RFB-NJK (D. Nev.). 15 The above demands prevented counsel from meeting the current deadline. 16 Further, it is to Saldana-Garcia’s deadline to utilize the remainder of his statutory 17 federal period of limitations to prepare and file his amended petition in this case. 18 Accordingly, he seeks a 52-day extension to utilize the remainder of this time, up to 19 and including October 31, 2019. This is his first request. 20 On September 6, 2019, counsel for Respondents, Deputy Attorney General 21 Charles L. Finlayson, indicated by email that Respondents do not oppose the 22 instant request for a 52-day extension. However, the parties agree that 23 Respondents’ non-opposition does not constitute tacit agreement with any of the 24 representations in this motion, including Saldana-Garcia’s statute-of-limitations- 25 deadline calculation, nor does it constitute a waiver of any procedural defenses, 26 such as a claim of untimeliness under the statute of limitations. 27 1 CONCLUSION 2 Saldana-Garcia does not request this extension for the purposes of undue 3|| delay but solely in the interests of justice, to utilize his remaining statutory period 4|| of limitations to seek federal relief and to allow his counsel to prepare and file a 5| | comprehensive amended petition on his behalf during this time. 6 Accordingly, for all of the above reasons, Saldana-Garcia respectfully requests an extension of the deadline to file an amended petition of 52 days, up to 8|| and including October 31, 2019. 9 Dated September 9, 2019. 10 Respectfully submitted, 11 Rene L. Valladares Federal Public Defender 13 /s/S. Alex Spelman 14 S. Alex Spelman 15 Assistant Federal Public Defender 16 17 IT IS SO ORDERED: 18 19 /PaCO—nO.~” 20 United States District Judge 21 Dated: 9/9/2019 22 23 24 25 26 27