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9 GERALD KEITH TAYLOR, Case No. 2:18-cv-02004-KJD-NJK
10 Petitioner, ORDER v. 11 WARDEN BRIAN WILLIAMS, et al., 12 Respondents. 13 14 This habeas matter under 28 U.S.C. § 2254 comes before the court on 15 respondents’ motion to dismiss petitioner Gerald Keith Taylor’s pro se habeas petition 16 as untimely (ECF No. 12). Taylor opposed (ECF No. 20), and respondents replied 17 (ECF No. 21). As discussed below, this petition is dismissed as untimely. 18 I. Background 19 A grand jury indicted Taylor on 26 counts, including 8 counts of robbery with use of a 20 deadly weapon and 8 counts of first-degree kidnapping, in connection with a string of 21 robberies at Las Vegas cell phone and computer stores (exhibit 5). 1 Taylor pleaded 22 guilty to 3 counts of robbery with a deadly weapon and 1 count of first-degree 23 kidnapping. Exhibit 11. The state district court sentenced Taylor on the 3 robbery 24 counts to 3 terms of 36 to 90 months, with consecutive terms of 36 to 90 months for the 25 deadly weapon enhancement, all terms to run consecutively, and to a term of 60 to 180 26 27 1 months for the kidnapping, to run concurrently with counts 1, 2, and 3. Exh. 12. 2 Judgment of conviction was entered on August 7, 2014. Id. 3 Taylor did not file a direct appeal. He filed his first state postconviction petition on 4 October 28, 2015. Exh. 20. On August 16, 2017, the Nevada Court of Appeals affirmed 5 the denial of the petition as untimely. Exh. 50. 6 Taylor filed a second state postconviction petition in September 2018. Exh. 53. He 7 then dispatched his federal habeas petition for mailing about October 15, 2018 (ECF 8 No. 5). The Nevada Court of Appeals affirmed the denial of Taylor’s second 9 postconviction petition on December 8, 2019. Exh. 66. On January 2, 2019, the court 10 granted Taylor’s motion for stay and abeyance pending the final resolution of his state- 11 court proceedings (ECF No. 4). The court granted Taylor’s motion to reopen the case 12 on December 16, 2019 (ECF No. 8). Respondents have moved to dismiss the petition 13 as time-barred (ECF No. 12). 14 II. Legal Standards 15 a. Statute of Limitations 16 The Antiterrorism and Effective Death Penalty Act (AEDPA) went into effect on April 17 24, 1996 and imposes a one-year statute of limitations on the filing of federal habeas 18 corpus petitions. 28 U.S.C. § 2244(d). The one-year time limitation can run from the 19 date on which a petitioner’s judgment became final by conclusion of direct review, or the 20 expiration of the time for seeking direct review. 28 U.S.C. § 2244(d)(1)(A). Further, a 21 properly filed petition for state postconviction relief can toll the period of limitations. 28 22 U.S.C. § 2244(d)(2). 23 Ignorance of the one-year statute of limitations does not constitute an extraordinary 24 circumstance that prevents a prisoner from making a timely filing. See Rasberry v. 25 Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“a pro se petitioner’s lack of legal 26 sophistication is not, by itself, an extraordinary circumstance warranting equitable 27 tolling”). 1 b. Procedural Default 2 “Procedural default” refers to the situation where a petitioner in fact presented a 3 claim to the state courts, but the state courts disposed of the claim on procedural 4 grounds, instead of on the merits. Coleman v. Thompson, 501 U.S. 722, 730-31 (1991). 5 A federal court will not review a claim for habeas corpus relief if the decision of the state 6 court regarding that claim rested on a state law ground that is independent of the 7 federal question and adequate to support the judgment. Id. 8 The Coleman Court explained the effect of a procedural default:
9 In all cases in which a state prisoner has defaulted his federal 10 claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the 11 prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to 12 consider the claims will result in a fundamental miscarriage of justice. 13 Coleman, 501 U.S. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986). 14 The procedural default doctrine ensures that the state’s interest in correcting its own 15 mistakes is respected in all federal habeas cases. See Koerner v. Grigas, 328 F.3d 16 1039, 1046 (9th Cir. 2003). 17 To demonstrate cause for a procedural default, the petitioner must be able to 18 “show that some objective factor external to the defense impeded” his efforts to comply 19 with the state procedural rule. Murray, 477 U.S. at 488 (emphasis added). For cause to 20 exist, the external impediment must have prevented the petitioner from raising the 21 claim. See McCleskey v. Zant, 499 U.S. 467, 497 (1991). 22 III. Analysis 23 a. Taylor’s Federal Claims 24 Taylor alleges five federal grounds for habeas relief:
25 Ground 1: He claims his plea counsel rendered ineffective assistance because there was no evidence placing him at the scene of all but one of 26 the robberies to which he pleaded guilty in violation of his Fifth, Sixth, 27 Eighth and Fourteenth Amendment rights (ECF No. 5, pp. 3-5). 1 Ground 2: Taylor contends that his counsel was ineffective for failing to file a motion to sever in violation of his Fifth, Sixth, Eighth and Fourteenth 2 Amendment rights. Id. at 7-11. 3 Ground 3: He argues that his counsel was ineffective for failing to file a 4 motion to dismiss the kidnapping charges in violation of his Fifth, Sixth, Eighth and Fourteenth Amendment rights. Id. at 13-15. 5 Ground 4: Taylor asserts that his guilty plea violated his Fifth, Sixth, 6 Eighth and Fourteenth Amendment rights because he did not enter into 7 the agreement voluntarily and knowingly. Id. at 17-20.
8 Ground 5: Taylor argues that—with respect to the deadly weapon enhancements—he was illegally sentenced pursuant to a non-existent 9 Nevada statute in violation of his Fifth, Sixth, Eighth and Fourteenth Amendment rights. Id. at 22-25. 10
11 b. Taylor’s Federal Petition is Untimely 12 Taylor’s judgment of conviction was filed on August 7, 2014. Exh. 12. He did not file 13 a notice of appeal, therefore, his conviction became final 30 days after the judgment of 14 conviction was filed. See NRAP 4(b)(1)(A); 28 U.S.C. § 2244(d)(1)(A); Gonzalez v. 15 Thaler, 565 U.S. 134, 137 (2012). Accordingly, the AEDPA one-year statute of 16 limitations began to run on September 7, 2014. Absent any statutory tolling, Taylor had 17 until September 7, 2015 to timely dispatch a federal habeas petition for filing. 18 Taylor filed a motion to withdraw counsel in May 2015. Exh. 14. He then filed a 19 motion to appoint counsel on July 29, 2015, and on July 30, 2015, he filed a motion for 20 90-day enlargement of time to file a state postconviction petition. Exh. 18. Taylor filed 21 his first state postconviction habeas petition, pro se, on October 28, 2015. Exh. 20.2 The 22 court appointed counsel, and Taylor filed a counseled supplemental petition on April 4, 23 2016. Exh. 28.
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9 GERALD KEITH TAYLOR, Case No. 2:18-cv-02004-KJD-NJK
10 Petitioner, ORDER v. 11 WARDEN BRIAN WILLIAMS, et al., 12 Respondents. 13 14 This habeas matter under 28 U.S.C. § 2254 comes before the court on 15 respondents’ motion to dismiss petitioner Gerald Keith Taylor’s pro se habeas petition 16 as untimely (ECF No. 12). Taylor opposed (ECF No. 20), and respondents replied 17 (ECF No. 21). As discussed below, this petition is dismissed as untimely. 18 I. Background 19 A grand jury indicted Taylor on 26 counts, including 8 counts of robbery with use of a 20 deadly weapon and 8 counts of first-degree kidnapping, in connection with a string of 21 robberies at Las Vegas cell phone and computer stores (exhibit 5). 1 Taylor pleaded 22 guilty to 3 counts of robbery with a deadly weapon and 1 count of first-degree 23 kidnapping. Exhibit 11. The state district court sentenced Taylor on the 3 robbery 24 counts to 3 terms of 36 to 90 months, with consecutive terms of 36 to 90 months for the 25 deadly weapon enhancement, all terms to run consecutively, and to a term of 60 to 180 26 27 1 months for the kidnapping, to run concurrently with counts 1, 2, and 3. Exh. 12. 2 Judgment of conviction was entered on August 7, 2014. Id. 3 Taylor did not file a direct appeal. He filed his first state postconviction petition on 4 October 28, 2015. Exh. 20. On August 16, 2017, the Nevada Court of Appeals affirmed 5 the denial of the petition as untimely. Exh. 50. 6 Taylor filed a second state postconviction petition in September 2018. Exh. 53. He 7 then dispatched his federal habeas petition for mailing about October 15, 2018 (ECF 8 No. 5). The Nevada Court of Appeals affirmed the denial of Taylor’s second 9 postconviction petition on December 8, 2019. Exh. 66. On January 2, 2019, the court 10 granted Taylor’s motion for stay and abeyance pending the final resolution of his state- 11 court proceedings (ECF No. 4). The court granted Taylor’s motion to reopen the case 12 on December 16, 2019 (ECF No. 8). Respondents have moved to dismiss the petition 13 as time-barred (ECF No. 12). 14 II. Legal Standards 15 a. Statute of Limitations 16 The Antiterrorism and Effective Death Penalty Act (AEDPA) went into effect on April 17 24, 1996 and imposes a one-year statute of limitations on the filing of federal habeas 18 corpus petitions. 28 U.S.C. § 2244(d). The one-year time limitation can run from the 19 date on which a petitioner’s judgment became final by conclusion of direct review, or the 20 expiration of the time for seeking direct review. 28 U.S.C. § 2244(d)(1)(A). Further, a 21 properly filed petition for state postconviction relief can toll the period of limitations. 28 22 U.S.C. § 2244(d)(2). 23 Ignorance of the one-year statute of limitations does not constitute an extraordinary 24 circumstance that prevents a prisoner from making a timely filing. See Rasberry v. 25 Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“a pro se petitioner’s lack of legal 26 sophistication is not, by itself, an extraordinary circumstance warranting equitable 27 tolling”). 1 b. Procedural Default 2 “Procedural default” refers to the situation where a petitioner in fact presented a 3 claim to the state courts, but the state courts disposed of the claim on procedural 4 grounds, instead of on the merits. Coleman v. Thompson, 501 U.S. 722, 730-31 (1991). 5 A federal court will not review a claim for habeas corpus relief if the decision of the state 6 court regarding that claim rested on a state law ground that is independent of the 7 federal question and adequate to support the judgment. Id. 8 The Coleman Court explained the effect of a procedural default:
9 In all cases in which a state prisoner has defaulted his federal 10 claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the 11 prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to 12 consider the claims will result in a fundamental miscarriage of justice. 13 Coleman, 501 U.S. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986). 14 The procedural default doctrine ensures that the state’s interest in correcting its own 15 mistakes is respected in all federal habeas cases. See Koerner v. Grigas, 328 F.3d 16 1039, 1046 (9th Cir. 2003). 17 To demonstrate cause for a procedural default, the petitioner must be able to 18 “show that some objective factor external to the defense impeded” his efforts to comply 19 with the state procedural rule. Murray, 477 U.S. at 488 (emphasis added). For cause to 20 exist, the external impediment must have prevented the petitioner from raising the 21 claim. See McCleskey v. Zant, 499 U.S. 467, 497 (1991). 22 III. Analysis 23 a. Taylor’s Federal Claims 24 Taylor alleges five federal grounds for habeas relief:
25 Ground 1: He claims his plea counsel rendered ineffective assistance because there was no evidence placing him at the scene of all but one of 26 the robberies to which he pleaded guilty in violation of his Fifth, Sixth, 27 Eighth and Fourteenth Amendment rights (ECF No. 5, pp. 3-5). 1 Ground 2: Taylor contends that his counsel was ineffective for failing to file a motion to sever in violation of his Fifth, Sixth, Eighth and Fourteenth 2 Amendment rights. Id. at 7-11. 3 Ground 3: He argues that his counsel was ineffective for failing to file a 4 motion to dismiss the kidnapping charges in violation of his Fifth, Sixth, Eighth and Fourteenth Amendment rights. Id. at 13-15. 5 Ground 4: Taylor asserts that his guilty plea violated his Fifth, Sixth, 6 Eighth and Fourteenth Amendment rights because he did not enter into 7 the agreement voluntarily and knowingly. Id. at 17-20.
8 Ground 5: Taylor argues that—with respect to the deadly weapon enhancements—he was illegally sentenced pursuant to a non-existent 9 Nevada statute in violation of his Fifth, Sixth, Eighth and Fourteenth Amendment rights. Id. at 22-25. 10
11 b. Taylor’s Federal Petition is Untimely 12 Taylor’s judgment of conviction was filed on August 7, 2014. Exh. 12. He did not file 13 a notice of appeal, therefore, his conviction became final 30 days after the judgment of 14 conviction was filed. See NRAP 4(b)(1)(A); 28 U.S.C. § 2244(d)(1)(A); Gonzalez v. 15 Thaler, 565 U.S. 134, 137 (2012). Accordingly, the AEDPA one-year statute of 16 limitations began to run on September 7, 2014. Absent any statutory tolling, Taylor had 17 until September 7, 2015 to timely dispatch a federal habeas petition for filing. 18 Taylor filed a motion to withdraw counsel in May 2015. Exh. 14. He then filed a 19 motion to appoint counsel on July 29, 2015, and on July 30, 2015, he filed a motion for 20 90-day enlargement of time to file a state postconviction petition. Exh. 18. Taylor filed 21 his first state postconviction habeas petition, pro se, on October 28, 2015. Exh. 20.2 The 22 court appointed counsel, and Taylor filed a counseled supplemental petition on April 4, 23 2016. Exh. 28. The state district court denied the petition on the merits on October 18, 24 2016. Exh. 35. On August 16, 2017, the Nevada Court of Appeals affirmed the denial of 25 26
27 2 It appears that the state district court granted Taylor’s motion for appointment of counsel in August 2015. See exh. 23, p. 4; exh. 35, p. 3. It is unclear why Taylor filed the October 28, 2015 state postconviction 1 the petition but on the basis that the petition was untimely and Taylor had failed to show 2 cause and prejudice to excuse that procedural bar. Exh. 50. 3 Taylor filed a second state postconviction petition on September 4, 2018. Exh. 53. 4 He then dispatched this federal habeas petition for filing on or about October 15, 2018 5 (ECF No. 5, p. 27). On December 20, 2018, the state district court held that the second 6 state postconviction petition was untimely and successive and thus denied it as 7 procedurally barred. Exh. 58. The Nevada Court of Appeals affirmed the denial on 8 October 8, 2019. Exh. 66. 9 As the above timeline demonstrates, Taylor did not file a direct appeal, and 10 therefore, the AEDPA statute of limitations expired on September 7, 2015, before he 11 filed his first state postconviction habeas petition on October 15, 2018. Accordingly, 12 Taylor’s federal habeas petition is dismissed as time-barred. 13 c. Taylor’s Petition Would Be Procedurally Defaulted 14 The court also notes that respondents are correct that Taylor’s federal petition, 15 alternatively, would be subject to dismissal as procedurally defaulted (ECF No. 12, pp. 16 6-9). 17 Taylor raised federal grounds 1-4 in his first state postconviction petition. Exh. 18 28. The Nevada Court of Appeals expressly relied on NRS 34.726 in affirming the denial 19 of the petition as untimely because it was not filed within 1 year of entry of the judgment 20 of conviction. Exh. 50. The Nevada Court of Appeals also held that because Taylor did 21 not allege that any external force prevented him from timely filing a petition, he failed to 22 demonstrate good cause for the procedural default. Id.; NRS 34.810(3). Taylor raised 23 federal ground 5 in his second state postconviction petition. Exh. 53. The Nevada Court 24 of Appeals also expressly invoked NRS 34.726 (untimely) and NRS 34.810(c) (abuse of 25 the writ) in affirming the denial of the petition as untimely and procedurally barred. Exh. 26 66. 27 The Ninth Circuit Court of Appeals has held that, at least in non-capital cases, 1 independent and adequate state ground. Vang v. Nevada, 329 F.3d 1069, 1073-75 (9th 2 Cir. 2003); see also Bargas v. Burns, 179 F.3d 1207, 1210-12 (9th Cir. 1999). 3 Therefore, the Nevada Court of Appeals’ determination that the federal grounds Taylor 4 now presents were procedurally barred under NRS 34.726 and NRS 34.810(1)(b) were 5 independent and adequate state grounds to affirm the denial of the claims in the state 6 petitions. Taylor does not argue that he can demonstrate good cause and actual 7 prejudice to excuse the procedural default here. 8 Even if it were not untimely, this court would dismiss the petition as procedurally 9 barred from federal review. Respondents’ motion to dismiss this petition as time-barred 10 is granted. The petition is dismissed with prejudice. 11 IV. Certificate of Appealability 12 This is a final order adverse to the petitioner. As such, Rule 11 of the Rules 13 Governing Section 2254 Cases requires this court to issue or deny a certificate of 14 appealability (COA). Accordingly, the court has sua sponte evaluated the claims within 15 the petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. 16 Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002). 17 Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner 18 "has made a substantial showing of the denial of a constitutional right." With respect to 19 claims rejected on the merits, a petitioner "must demonstrate that reasonable jurists 20 would find the district court's assessment of the constitutional claims debatable or 21 wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 22 U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable 23 jurists could debate (1) whether the petition states a valid claim of the denial of a 24 constitutional right and (2) whether the court's procedural ruling was correct. Id. 25 Having reviewed its determinations and rulings in dismissing Taylor’s petition, the 26 court finds that none of those rulings meets the Slack standard. The court therefore 27 declines to issue a certificate of appealability. 1 V. Conclusion 2 IT IS THEREFORE ORDERED that respondents’ motion to dismiss the petition 3|| (ECF No. 12) is GRANTED as set forth in this order. The petition is DISMISSED with 4|| prejudice. 5 IT IS FURTHER ORDERED that a certificate of appealability is DENIED. 6 IT IS FURTHER ORDERED that petitioner's motion for extension of time to file 7 || an opposition to the motion to dismiss (ECF No. 19) is GRANTED nunc pro tunc. 8 IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and 9|| close this case. 10 4 DATED: 26 October 2020. | Cc ™~ 12 So KENT J. DAWSON 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28