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5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 EDDIE SOWELL SMITH, Case No.: 2:23-cv-00527-GMN-MDC
9 Petitioner Order Granting Motion to Dismiss Petition 10 v.
11 WARDEN CHILDERS,
12 Respondent.
13 Pro se 28 U.S.C. § 2254 Habeas Corpus Petitioner Eddie Sowell Smith 14 challenges his conviction pursuant to a guilty plea of two counts involving battery. (ECF 15 No. 33.) He argues that his trial counsel was ineffective and that his guilty plea was not 16 voluntary and intelligent. (Id.) Respondents move to dismiss the Petition on the basis 17 that it is untimely and/or because the two grounds are unexhausted. (ECF No. 34.) 18 Because the Petition was filed outside of the federal statute of limitations, it is dismissed 19 as untimely. 20 I. Background 21
In February 2020, in Eighth Judicial District Court (Clark County), Nevada, Smith 22 pleaded guilty to two counts of Attempt Battery Causing Substantial Bodily Harm. (Exh. 23 1 19.)1 The case stemmed from an incident in Las Vegas where Smith and his former 2 girlfriend Cassandra Hines were arguing, and he struck her with a golf club. They 3 continued arguing outside Hines’ friend’s apartment; Smith pushed the friend, who fell 4 backwards onto a table, bumping her head. (See ECF No. 34; Exh. 5.) The state district
5 court sentenced Smith to consecutive terms of 12 to 48 months. (Exh. 18.) Judgment of 6 Conviction was entered on February 12, 2020. (Exh. 19.) Smith did not file a direct 7 appeal. He filed a state Postconviction Habeas Corpus Petition in January 2021. (Exh. 8 29.) The Nevada Court of Appeals affirmed the denial of the Petition in January 2022. 9 (Exh. 67.) 10 Smith dispatched his federal Habeas Corpus Petition for mailing about March 15, 11 2023. (ECF No. 6.) He ultimately filed a Fourth Amended Petition raising two grounds: 12 Ground 1: Smith’s guilty plea was not voluntary and intelligent:
13 A. he was incorrectly advised he would be sentenced under the habitual criminal statute if he went to trial; and 14 B. there was a defect in the guilty plea agreement. 15 Ground 2: Trial counsel was ineffective for: 16 A. failing to investigate and defend a theory of Smith’s innocence; 17 B. failing to argue for a misdemeanor sentence; and 18 C. attacking Smith’s character. 19 (ECF No. 33.) 20 21 22 23 1 Exhibits referenced in this order are exhibits to Respondents’ Motion to Dismiss, ECF No. 34, and are found at ECF Nos. 28, 29, 31. 1 Respondents now move to dismiss the Petition as untimely; alternatively, they 2 argue that the grounds are unexhausted. (ECF No. 34.)2 3 II. Legal Standards & Analysis 4 a. Timeliness -- AEDPA Statute of Limitations 5 The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a one-year 6 statute of limitations on the filing of federal habeas corpus petitions. 28 U.S.C. § 7 2244(d). The one-year time limitation can run from the date on which a petitioner’s 8 judgment became final by conclusion of direct review, or the expiration of the time for 9 seeking direct review. 28 U.S.C. § 2244(d)(1)(A). “[T]he process of direct review . . . 10 includes the right to petition [the United States Supreme Court] for a writ of certiorari.” 11 Barefoot v. Estelle, 463 U.S. 880, 887 (1983). The one-year period of limitations begins 12 to run when the Supreme Court affirms a conviction on the merits, denies a petition for a 13 writ of certiorari, or the 90 days expires. See Jimenez v. Quarterman, 555 U.S. 113, 119 14 (2009). Where a defendant fails to seek direct review of the judgment of conviction
15 before the Nevada Supreme Court or the Nevada Court of Appeals, the one-year period 16 of limitations begins to run 30 days after the entry of the judgment of conviction. See 17 Nev. R. App. P. 4(b)(1)(A); Gonzalez v. Thaler, 565 U.S. 134, 149-50, (2012). 18 The period is not tolled until an “application for State post-conviction or other 19 collateral review” is properly filed with the state court clerk and the period continues to 20 toll while the application remains “pending.” See 28 U.S.C. § 2244(d)(2); Orpiada v. 21 McDaniel, 750 F.3d 1086, 1087 (9th Cir. 2014). The prison mailbox rule does not apply 22 to that application for collateral review. Orpiada, 750 F.3d at 1087. If an application for 23
2 Smith opposed, and Respondents replied. (ECF Nos. 38, 40.) 1 collateral review tolls the one-year period of limitations, the application remains pending 2 “until the application has achieved final resolution through the State’s post-conviction 3 procedures.” Carey v. Saffold, 536 U.S. 214, 220 (2002). “[A] pro se petitioner’s [federal 4 habeas] petition is deemed constructively filed at the moment it is delivered to prison
5 officials to be forwarded to the court clerk.” Patterson v. Stewart, 251 F.3d 1243, 1245 6 n.2 (9th Cir. 2001). “[Section] 2244(d)(2) does not toll the limitation period during the 7 pendency of a federal habeas petition.” Duncan, 533 U.S. at 181. 8 b. Smith’s Federal Petition is Untimely 9 10 Here, Judgment of Conviction was entered on February 12, 2020, so Smith’s 30 11 days to file a Notice of Appeal with the Nevada Supreme Court expired on March 13, 12 2020. (See Exh. 19.) Because he did not file a direct appeal, the AEDPA statute of 13 limitations began to run on that day. Smith filed his state Postconviction Habeas 14 Corpus Petition 298 days later on January 5, 2021. (Exh. 29.) Remittitur issued on the 15 Nevada Court of Appeals’ affirmance of the denial of the state petition on February 7, 16 2022, so the limitations period resumed running the next day. (See Exh. 69.) The one- 17 year statute of limitations expired 67 days later on April 18, 2022.3 18 But Smith did not mail his federal petition until 401 days later on March 15, 2023. 19 (ECF No. 6.) Thus, 699 days of untolled time elapsed between the expiration of Smith’s 20 time for seeking direct review and the date he mailed his original federal petition to this 21 Court. So the petition is untimely by almost a year. 22 23 3 Saturday, April 16, 2022, is actually the date the limitations period expired, so Smith would have had until Monday, April 18, 2022 to file a federal habeas petition. 1 In Smith’s opposition to the motion to dismiss, he asserts that he is entitled to 2 equitable tolling. (ECF No. 38.) Generally, a litigant seeking equitable tolling bears the 3 burden of establishing two elements: (1) that he has been pursuing his rights diligently, 4 and (2) that some extraordinary circumstance stood in his way. Pace v. DiGuglielmo,
5 544 U.S. 408, 418 (2005) (citing Irwin v. Department of Veterans Affairs, 498 U.S. 89, 6 96 (1990)). Smith states in his opposition that at some point he was in pre-trial custody 7 in San Jose, California, for 90 days and that jail personnel told him there were no 8 institutional procedures in place for him to submit the filing fee. But he provided no 9 dates regarding this custody.
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5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 EDDIE SOWELL SMITH, Case No.: 2:23-cv-00527-GMN-MDC
9 Petitioner Order Granting Motion to Dismiss Petition 10 v.
11 WARDEN CHILDERS,
12 Respondent.
13 Pro se 28 U.S.C. § 2254 Habeas Corpus Petitioner Eddie Sowell Smith 14 challenges his conviction pursuant to a guilty plea of two counts involving battery. (ECF 15 No. 33.) He argues that his trial counsel was ineffective and that his guilty plea was not 16 voluntary and intelligent. (Id.) Respondents move to dismiss the Petition on the basis 17 that it is untimely and/or because the two grounds are unexhausted. (ECF No. 34.) 18 Because the Petition was filed outside of the federal statute of limitations, it is dismissed 19 as untimely. 20 I. Background 21
In February 2020, in Eighth Judicial District Court (Clark County), Nevada, Smith 22 pleaded guilty to two counts of Attempt Battery Causing Substantial Bodily Harm. (Exh. 23 1 19.)1 The case stemmed from an incident in Las Vegas where Smith and his former 2 girlfriend Cassandra Hines were arguing, and he struck her with a golf club. They 3 continued arguing outside Hines’ friend’s apartment; Smith pushed the friend, who fell 4 backwards onto a table, bumping her head. (See ECF No. 34; Exh. 5.) The state district
5 court sentenced Smith to consecutive terms of 12 to 48 months. (Exh. 18.) Judgment of 6 Conviction was entered on February 12, 2020. (Exh. 19.) Smith did not file a direct 7 appeal. He filed a state Postconviction Habeas Corpus Petition in January 2021. (Exh. 8 29.) The Nevada Court of Appeals affirmed the denial of the Petition in January 2022. 9 (Exh. 67.) 10 Smith dispatched his federal Habeas Corpus Petition for mailing about March 15, 11 2023. (ECF No. 6.) He ultimately filed a Fourth Amended Petition raising two grounds: 12 Ground 1: Smith’s guilty plea was not voluntary and intelligent:
13 A. he was incorrectly advised he would be sentenced under the habitual criminal statute if he went to trial; and 14 B. there was a defect in the guilty plea agreement. 15 Ground 2: Trial counsel was ineffective for: 16 A. failing to investigate and defend a theory of Smith’s innocence; 17 B. failing to argue for a misdemeanor sentence; and 18 C. attacking Smith’s character. 19 (ECF No. 33.) 20 21 22 23 1 Exhibits referenced in this order are exhibits to Respondents’ Motion to Dismiss, ECF No. 34, and are found at ECF Nos. 28, 29, 31. 1 Respondents now move to dismiss the Petition as untimely; alternatively, they 2 argue that the grounds are unexhausted. (ECF No. 34.)2 3 II. Legal Standards & Analysis 4 a. Timeliness -- AEDPA Statute of Limitations 5 The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a one-year 6 statute of limitations on the filing of federal habeas corpus petitions. 28 U.S.C. § 7 2244(d). The one-year time limitation can run from the date on which a petitioner’s 8 judgment became final by conclusion of direct review, or the expiration of the time for 9 seeking direct review. 28 U.S.C. § 2244(d)(1)(A). “[T]he process of direct review . . . 10 includes the right to petition [the United States Supreme Court] for a writ of certiorari.” 11 Barefoot v. Estelle, 463 U.S. 880, 887 (1983). The one-year period of limitations begins 12 to run when the Supreme Court affirms a conviction on the merits, denies a petition for a 13 writ of certiorari, or the 90 days expires. See Jimenez v. Quarterman, 555 U.S. 113, 119 14 (2009). Where a defendant fails to seek direct review of the judgment of conviction
15 before the Nevada Supreme Court or the Nevada Court of Appeals, the one-year period 16 of limitations begins to run 30 days after the entry of the judgment of conviction. See 17 Nev. R. App. P. 4(b)(1)(A); Gonzalez v. Thaler, 565 U.S. 134, 149-50, (2012). 18 The period is not tolled until an “application for State post-conviction or other 19 collateral review” is properly filed with the state court clerk and the period continues to 20 toll while the application remains “pending.” See 28 U.S.C. § 2244(d)(2); Orpiada v. 21 McDaniel, 750 F.3d 1086, 1087 (9th Cir. 2014). The prison mailbox rule does not apply 22 to that application for collateral review. Orpiada, 750 F.3d at 1087. If an application for 23
2 Smith opposed, and Respondents replied. (ECF Nos. 38, 40.) 1 collateral review tolls the one-year period of limitations, the application remains pending 2 “until the application has achieved final resolution through the State’s post-conviction 3 procedures.” Carey v. Saffold, 536 U.S. 214, 220 (2002). “[A] pro se petitioner’s [federal 4 habeas] petition is deemed constructively filed at the moment it is delivered to prison
5 officials to be forwarded to the court clerk.” Patterson v. Stewart, 251 F.3d 1243, 1245 6 n.2 (9th Cir. 2001). “[Section] 2244(d)(2) does not toll the limitation period during the 7 pendency of a federal habeas petition.” Duncan, 533 U.S. at 181. 8 b. Smith’s Federal Petition is Untimely 9 10 Here, Judgment of Conviction was entered on February 12, 2020, so Smith’s 30 11 days to file a Notice of Appeal with the Nevada Supreme Court expired on March 13, 12 2020. (See Exh. 19.) Because he did not file a direct appeal, the AEDPA statute of 13 limitations began to run on that day. Smith filed his state Postconviction Habeas 14 Corpus Petition 298 days later on January 5, 2021. (Exh. 29.) Remittitur issued on the 15 Nevada Court of Appeals’ affirmance of the denial of the state petition on February 7, 16 2022, so the limitations period resumed running the next day. (See Exh. 69.) The one- 17 year statute of limitations expired 67 days later on April 18, 2022.3 18 But Smith did not mail his federal petition until 401 days later on March 15, 2023. 19 (ECF No. 6.) Thus, 699 days of untolled time elapsed between the expiration of Smith’s 20 time for seeking direct review and the date he mailed his original federal petition to this 21 Court. So the petition is untimely by almost a year. 22 23 3 Saturday, April 16, 2022, is actually the date the limitations period expired, so Smith would have had until Monday, April 18, 2022 to file a federal habeas petition. 1 In Smith’s opposition to the motion to dismiss, he asserts that he is entitled to 2 equitable tolling. (ECF No. 38.) Generally, a litigant seeking equitable tolling bears the 3 burden of establishing two elements: (1) that he has been pursuing his rights diligently, 4 and (2) that some extraordinary circumstance stood in his way. Pace v. DiGuglielmo,
5 544 U.S. 408, 418 (2005) (citing Irwin v. Department of Veterans Affairs, 498 U.S. 89, 6 96 (1990)). Smith states in his opposition that at some point he was in pre-trial custody 7 in San Jose, California, for 90 days and that jail personnel told him there were no 8 institutional procedures in place for him to submit the filing fee. But he provided no 9 dates regarding this custody. Thereafter, Smith filed a Motion Seeking Equitable 10 Tolling. (ECF No. 41.) He states that when he was held in Elmwood County Jail in San 11 Jose from November 25, 2022, to March 3, 2023, there were no “penological 12 procedures in place to . . . to aid [him] in his legal quest.” (Id. at 1.) Even assuming that 13 he might have been entitled to equitable tolling for the period he was in custody in San 14 Jose, the federal statute of limitations had already expired seven months before.
15 He also relies heavily on the fact that, due to a clerical error, this Court initially 16 dismissed his federal petition for failure to pay the filing fee. (See ECF No. 7.) But the 17 error was corrected, the dismissal order was vacated, and Smith’s petition was deemed 18 submitted on the day he dispatched it for mailing, March 15, 2023. (See ECF Nos. 10, 19 1-1.) The date Smith filed his federal petition was therefore unaffected. And, again, the 20 limitations period had already expired almost year before, in April 2022. Smith has 21 presented no basis for tolling of the statute of limitations, and therefore, the Court 22 dismisses his petition as untimely. 23 1 c. Motion to Seal 2 3 Respondents have also filed a Motion for Leave to File Exhibit In Camera and 4 Under Seal. (ECF No. 30.) While there is a presumption favoring public access to 5 judicial filings and documents, see Nixon v. Warner Communications, Inc., 435 U.S. 6 589, 597 (1978), a party seeking to seal a judicial record may overcome the 7 presumption by demonstrating “compelling reasons” that outweigh the public policies 8 favoring disclosure, Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178-79 9 (9th Cir. 2006) (citations omitted). In general, “compelling reasons” exist where the 10 records may be used for improper purposes. Id. at 1179 (citing Nixon, 435 U.S. at 598). 11 Here, Respondents ask to file Smith’s Presentence Investigation Report (“PSI”) in 12 camera and under seal because it is confidential under state law and contains sensitive 13 information. (ECF No. 30.) The Court has reviewed the PSI and concludes that 14 Respondents have demonstrated compelling reasons to file it under seal. However, the
15 PSI does not appear to include information that is so sensitive that it would warrant in 16 camera filing. Accordingly, the Motion is granted in part, and the exhibit will remain 17 under seal. 18 III. Certificate of Appealability 19 This is a final order adverse to Petitioner. As such, Rule 11 of the Rules Governing 20 Section 2254 Cases requires this Court to issue or deny a certificate of appealability 21 (COA). Accordingly, the Court has sua sponte evaluated the claims within the Petition 22 for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. Calderon, 23 281 F.3d 851, 864-65 (9th Cir. 2002). 1 Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner “has 2 made a substantial showing of the denial of a constitutional right.” With respect to 3 claims rejected on the merits, a petitioner “must demonstrate that reasonable jurists 4 would find the district court’s assessment of the constitutional claims debatable or
5 wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 6 U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable 7 jurists could debate (1) whether the petition states a valid claim of the denial of a 8 constitutional right and (2) whether the court’s procedural ruling was correct. Id. 9 Having reviewed its determinations and ruling in concluding that Smith’s Petition is 10 untimely, the Court finds that the ruling does not meet the Slack standard. The Court 11 therefore declines to issue a certificate of appealability for its resolution of Smith’s 12 Petition. 13 14
15 16 17 18 19 20 21 22 23 IV. Conclusion 2 3 It is therefore ordered that Respondents’ Motion to Dismiss (ECF No. 34) is
4 GRANTED. The Fourth Amended Petition (ECF No. 33) is DISMISSED as time barred.
5 It is further ordered that Petitioner's Motion to Dismiss Unexhausted Claims (ECF 6 No. 39) is DISMISSED as moot.
7 It is further ordered that Petitioner's Motion Seeking Equitable Tolling (ECF No. 41) g is DENIED.
9 It is further ordered that Respondents’ Motion to Strike Motion for Equitable Tolling 10 (ECF No. 42) is DENIED.
It is further ordered that Respondents’ Motion for Leave to File Exhibit Under Seal
D and /n Camera (ECF No. 30) is GRANTED in part and DENIED in part. The exhibit
B will remain under seal.
14 It is further ordered that a certificate of appealability will not issue.
15 The Clerk of Court is directed to enter Judgment accordingly and close this case.
16 7 Dated: February 11, 2025 Wh 19 GLO LA, Ls 50 UNTIEO)STATES DISTRICT JUDGE
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