Smith v. Howell

• Court: District Court, D. Nevada
• Decided: April 14, 2020
• Docket: 2:19-cv-01858
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 CALVIN SMITH, Case No. 2:19-cv-01858-KJD-BNW 12 Petitioner, ORDER 13 v. 14 JERRY HOWELL, et al., 15 Respondents. 16 17 I. Introduction 18 The court directed petitioner to show cause why this action should not be dismissed as 19 untimely. ECF No. 5. Petitioner has filed a response to the order. ECF No. 15. Based upon 20 petitioner's arguments, the court will direct respondents to file a response. 21 II. Summary of Time Calculations 22 Petitioner's judgment of conviction became final on February 28, 2014, when the time to 23 appeal the judgment expired. Petitioner filed his state post-conviction habeas corpus petition on 24 January 5, 2015, 310 days later. The federal period of limitation was tolled while the state 25 petition was pending. 28 U.S.C. § 2244(d)(2). The state post-conviction proceedings ended with 26 the Nevada Supreme Court issuing its remittitur on October 13, 2017. Petitioner delivered the 27 current federal habeas corpus petition for mailing on October 13, 2019, 729 days later. Without 28 equitable tolling, the action is untimely. 1 III. Legal Standard 2 The one-year period of limitation of 28 U.S.C. § 2244(d)(1) is subject to equitable tolling. 3 Holland v. Florida, 560 U.S. 631, 645 (2010). “[A] ‘petitioner’ is ‘entitled to equitable tolling’ 4 only if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that some 5 extraordinary circumstance stood in his way’ and prevented timely filing.” Id. at 649 (quoting 6 Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). 7 IV. Discussion 8 Petitioner argues that he did not know that his state post-conviction habeas corpus 9 proceedings had concluded until shortly before he filed his federal habeas corpus petition. First, 10 he states that his post-conviction counsel did not inform him that the Nevada Court of Appeals 11 had decided his post-conviction appeal on September 13, 2017. ECF No. 15 at 10. Second, 12 Petitioner states that he wrote post-conviction counsel on September 27, 2017, asking about the 13 status of his appeal, but the letter was returned. Id. at 10-11, 39-42. Third, petitioner states that 14 he wrote the Nevada Supreme Court on November 1, 2017, asking about the status of his appeal. 15 Id. at 11, 43-44. Petitioner states further that the clerk of that court sent him an incomplete docket 16 sheet that showed only docket entries through January 30, 2017, and did not show the September 17 13, 2017 decision. Id. at 11-12, 45-46. Fourth, Petitioner states that in early October 2019, while 18 using the prison law library's computer, he learned that the Nevada Court of Appeals had decided 19 his appeal on September 13, 2017. Id. at 12-13. Petitioner then sent his federal petition to this 20 court on October 13, 2019. 21 The court cannot evaluate petitioner's arguments based upon the documents that it 22 possesses. First, the court does not have the prison's mail log, which might show whether 23 petitioner did receive mail from post-conviction counsel. Second, the copy of the envelope that 24 petitioner provided shows that the Postal Service returned his letter to counsel because counsel 25 was not known at that address, but the court does not have documents which might show that 26 petitioner knew counsel's address at the time. Third, petitioner has attached page 1 of the Nevada 27 Supreme Court's docket sheet, but the court does not know whether the Nevada Supreme Court 28 sent only page 1 or the complete docket sheet. Fourth, while petitioner did send a petition to this 1 court soon after his stated date of learning that his appeal had been decided, it is not clear whether 2 petitioner could have checked the Nevada Supreme Court's on-line docket earlier. Therefore, the 3 court cannot determine, based upon the record it possesses, whether extraordinary circumstances 4 existed and whether petitioner had been diligent in pursuing his rights. 5 The court will direct respondents to file an answer or other response to the petition. If 6 they wish, then they may argue that the petition is untimely. 7 V. Conclusion 8 IT THEREFORE IS ORDERED that respondents shall file a response to the petition (ECF 9 No. 6), including potentially by motion to dismiss, within sixty (60) days of entry of this order 10 and that petitioner may file a reply within thirty (30) days of service of an answer. The response 11 and reply time to any motion filed by either party, including a motion filed in lieu of a pleading, 12 shall be governed instead by Local Rule LR 7-2(b). 13 IT FURTHER IS ORDERED that any procedural defenses raised by respondents to the 14 petition shall be raised together in a single consolidated motion to dismiss. In other words, the 15 court does not wish to address any procedural defenses raised herein either in serial fashion in 16 multiple successive motions to dismiss or embedded in the answer. Procedural defenses omitted 17 from such motion to dismiss will be subject to potential waiver. Respondents shall not file a 18 response in this case that consolidates their procedural defenses, if any, with their response on the 19 merits, except pursuant to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking 20 merit. If respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they shall 21 do so within the single motion to dismiss not in the answer; and (b) they shall specifically direct 22 their argument to the standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 23 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses, including exhaustion, shall be 24 included with the merits in an answer. All procedural defenses, including exhaustion, instead 25 must be raised by motion to dismiss. 26 IT FURTHER IS ORDERED that, in any answer filed on the merits, respondents shall 27 specifically cite to and address the applicable state court written decision and state court record 28 materials, if any, regarding each claim within the response as to that claim. 1 IT FURTHER IS ORDERED that, notwithstanding Local Rule LR IC 2-2(g), paper copies 2 | of any electronically filed exhibits need not be provided to chambers or to the staff attorney, 3 | unless later directed by the court. 4 DATED: April 14, 2020 ~ 5 KENT J. DAWSON 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28