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5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 * * * 8 GIOVANNI VALERIO, Case No. 2:10-cv-01806-GMN-EJY 9 Petitioner, 10 v. ORDER
11 ANTHONY SCILLIA, et al., 12 Respondents. 13 14 This represented habeas matter under 28 U.S.C. § 2254 by Petitioner Giovanni 15 Valerio (“Petitioner” or “Valerio”) comes before the Court for a decision regarding the 16 timeliness of the Petition. 17 A more detailed summary of factual background, procedural history, and governing 18 law pertinent to this matter can be found in ECF No. 93, at 1-18. (See also ECF No. 80, 19 at 1-4; ECF No. 66, at 1-5 & 11-12.) 20 At bottom, the timeliness issue under 28 U.S.C. § 2244(d) concerns the following 21 two otherwise untolled periods of time: (a) a first, 318-day period between the expiration 22 of the time to file a direct appeal on August 12, 2002, and the filing of a Lozada petition1 23 on June 27, 2003; and (b) a second, 337-day period between the issuance of the remittitur 24 concluding the Lozada proceedings on June 17, 2008, and the filing of a timely and 25 properly filed state postconviction petition on May 21, 2009. Neither statutory tolling 26 under § 2244(d)(2) nor any form of delayed accrual under § 2244(d)(1) applies to either 27
28 1 At that time under Nevada practice, a Lozada petition allowed a petitioner to pursue all issues that he otherwise could have pursued in a timely direct appeal instead in a state postconviction petition. 1 period. In the context of this case, Valerio accordingly must satisfy the requirements for 2 equitable tolling to overcome the otherwise untimeliness of the Petition. 3 The Court initially dismissed the matter as untimely. The Court concluded inter 4 alia that Valerio had failed to establish that he pursued his rights diligently because he 5 had not provided evidence or argument that he personally took any steps to establish the 6 status of his direct appeal by attempting to contact counsel or the state district court. The 7 Court accordingly concluded that Valerio had failed to establish a basis for equitable 8 tolling for any period prior to the putative date that the federal limitation period expired per 9 the Court’s calculation at the time of its dismissal.2 10 The Ninth Circuit reversed and remanded, concluding inter alia that there were 11 unresolved factual disputes regarding when Valerio learned that a direct appeal had not 12 been filed and as to what efforts he took thereafter to challenge his conviction. The Court 13 of Appeals remanded for an evidentiary hearing or for other factual development as was 14 necessary to determine whether Valerio exercised reasonable diligence and, if so, 15 whether he otherwise had demonstrated that he was entitled to equitable tolling. (See 16 ECF No. 24, at 2-3.) 17 This Court thereafter conducted extensive proceedings directed to factual inquiry 18 and legal argument pertinent to time-bar issues, ultimately setting the matter for an 19 evidentiary hearing. The Court stayed the matter, however, at the request of the parties 20 to await the Ninth Circuit’s en banc decision in Smith v. Davis, 953 F.3d 582 (9th Cir. 2020) 21 (en banc), cert. denied, 2020 WL 6829092, No. 20-5366 (U.S. Nov. 23, 2020). 22 Smith rejected a “stop-clock” approach for equitable tolling. Under that approach, 23 a successful demonstration of equitable tolling regarding a discrete period would “stop 24 the clock” on the federal limitation period for that specific duration. Equitable tolling thus 25
26 2 At the time of the dismissal, the Court used a July 31, 2008, putative expiration date, i.e., absent further tolling or delayed accrual. The Court since has recalculated the putative expiration date as instead 27 August 4, 2008, which was after 47 days had elapsed in the second untolled period. Valerio did not dispatch the federal petition until on or about October 11, 2010, shortly before the October 27, 2010, issuance of the 28 remitter concluding the proceedings on the timely May 21, 2009, state petition. (See ECF No. 66, at pages 2-3 & notes 2, 4 & 6. See also ECF No. 93, at 14-15 & 18 n.13.) 1 would function under the stop-clock approach substantially the same way as statutory 2 tolling, which suspends the running of the limitation period during a specified period, 3 removing those days from the count toward one year. See generally 953 F.3d at 586 & 4 589; see also ECF No. 93, at 11. Under an at least strict stop-clock approach, if Valerio 5 established a basis for equitable tolling for the first, 318-day period, he potentially would 6 have been able to overcome the otherwise untimeliness of the Petition without regard to 7 the second, 337-day period. Under such a strict or simple stop-clock approach, in that 8 event, he still would be under 365 days in untolled time when he filed his federal petition 9 if the limitation clock was stopped by equitable tolling for the full 318 days.3 10 Under Smith, however, Valerio must show, inter alia, that he exercised reasonable 11 diligence during the entirety of all otherwise untolled time, including the second, 337-day 12 period, even if he arguendo otherwise established that an extraordinary circumstance 13 stood in the way of his filing during the first, 318-day period. 953 F.3d at 598-600; see 14 also ECF No. 93, at 12-16 (rejecting Valerio’s argument seeking to limit the application of 15 Smith). Valerio further must show essentially a causal nexus between any earlier 16 arguendo extraordinary circumstance during the first, 318-day period and his failure to file 17 a timely federal petition, i.e., that the extraordinary circumstance prevented a timely filing 18 despite his exercise of reasonable diligence throughout all otherwise untolled periods 19 prior to his federal filing. See 953 F.3d at 589, 595 & 598-600; see also ECF No. 93, at 20 11-13. 21 The Court accordingly gave Valerio an opportunity to tender any available 22 evidence that might tend to establish the exercise of reasonable diligence during the 23 second, 337-day period. (ECF No. 93, at 15-19.) Following that opportunity, Valerio 24 represents that he “does not have any new specific factual allegations or evidence to 25 submit in further support of tolling” over and above that provided previously in support of 26 3 The Court refers to a “strict” or “simple” stop-clock approach because prior to Smith a question 27 remained in Ninth Circuit caselaw as to the extent under the stop-clock approach that a petitioner nonetheless had to show reasonable diligence after the equitable tolling event that “stopped the clock” had 28 ceased. Prior to the stay to await Smith, this question was to be addressed by the parties during the briefing heading into the evidentiary hearing. (See ECF No. 80, at 3-4.) 1 his effort to establish equitable tolling. (ECF No. 96, at 2.) The Court notes that that prior 2 evidence pertained to the first, 318-day period and not otherwise specifically to the 3 second, 337-day period. Petitioner’s filing reflects his understanding that “as this Court 4 indicated in its Order, that the inability to provide new evidence as the Court requested 5 means “’the petition likely will be dismissed as untimely.’” (Id.)4 6 Given the intervening authority in Smith, and considering all factual presentation 7 tendered previously herein, there is no occasion for further proceedings in this matter on 8 the timeliness issue. Under Smith, Valerio will not be able to successfully establish 9 equitable tolling to render the Petition timely, because he cannot demonstrate reasonable 10 diligence during the entirety of the otherwise untolled time. In Pace v.
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5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 * * * 8 GIOVANNI VALERIO, Case No. 2:10-cv-01806-GMN-EJY 9 Petitioner, 10 v. ORDER
11 ANTHONY SCILLIA, et al., 12 Respondents. 13 14 This represented habeas matter under 28 U.S.C. § 2254 by Petitioner Giovanni 15 Valerio (“Petitioner” or “Valerio”) comes before the Court for a decision regarding the 16 timeliness of the Petition. 17 A more detailed summary of factual background, procedural history, and governing 18 law pertinent to this matter can be found in ECF No. 93, at 1-18. (See also ECF No. 80, 19 at 1-4; ECF No. 66, at 1-5 & 11-12.) 20 At bottom, the timeliness issue under 28 U.S.C. § 2244(d) concerns the following 21 two otherwise untolled periods of time: (a) a first, 318-day period between the expiration 22 of the time to file a direct appeal on August 12, 2002, and the filing of a Lozada petition1 23 on June 27, 2003; and (b) a second, 337-day period between the issuance of the remittitur 24 concluding the Lozada proceedings on June 17, 2008, and the filing of a timely and 25 properly filed state postconviction petition on May 21, 2009. Neither statutory tolling 26 under § 2244(d)(2) nor any form of delayed accrual under § 2244(d)(1) applies to either 27
28 1 At that time under Nevada practice, a Lozada petition allowed a petitioner to pursue all issues that he otherwise could have pursued in a timely direct appeal instead in a state postconviction petition. 1 period. In the context of this case, Valerio accordingly must satisfy the requirements for 2 equitable tolling to overcome the otherwise untimeliness of the Petition. 3 The Court initially dismissed the matter as untimely. The Court concluded inter 4 alia that Valerio had failed to establish that he pursued his rights diligently because he 5 had not provided evidence or argument that he personally took any steps to establish the 6 status of his direct appeal by attempting to contact counsel or the state district court. The 7 Court accordingly concluded that Valerio had failed to establish a basis for equitable 8 tolling for any period prior to the putative date that the federal limitation period expired per 9 the Court’s calculation at the time of its dismissal.2 10 The Ninth Circuit reversed and remanded, concluding inter alia that there were 11 unresolved factual disputes regarding when Valerio learned that a direct appeal had not 12 been filed and as to what efforts he took thereafter to challenge his conviction. The Court 13 of Appeals remanded for an evidentiary hearing or for other factual development as was 14 necessary to determine whether Valerio exercised reasonable diligence and, if so, 15 whether he otherwise had demonstrated that he was entitled to equitable tolling. (See 16 ECF No. 24, at 2-3.) 17 This Court thereafter conducted extensive proceedings directed to factual inquiry 18 and legal argument pertinent to time-bar issues, ultimately setting the matter for an 19 evidentiary hearing. The Court stayed the matter, however, at the request of the parties 20 to await the Ninth Circuit’s en banc decision in Smith v. Davis, 953 F.3d 582 (9th Cir. 2020) 21 (en banc), cert. denied, 2020 WL 6829092, No. 20-5366 (U.S. Nov. 23, 2020). 22 Smith rejected a “stop-clock” approach for equitable tolling. Under that approach, 23 a successful demonstration of equitable tolling regarding a discrete period would “stop 24 the clock” on the federal limitation period for that specific duration. Equitable tolling thus 25
26 2 At the time of the dismissal, the Court used a July 31, 2008, putative expiration date, i.e., absent further tolling or delayed accrual. The Court since has recalculated the putative expiration date as instead 27 August 4, 2008, which was after 47 days had elapsed in the second untolled period. Valerio did not dispatch the federal petition until on or about October 11, 2010, shortly before the October 27, 2010, issuance of the 28 remitter concluding the proceedings on the timely May 21, 2009, state petition. (See ECF No. 66, at pages 2-3 & notes 2, 4 & 6. See also ECF No. 93, at 14-15 & 18 n.13.) 1 would function under the stop-clock approach substantially the same way as statutory 2 tolling, which suspends the running of the limitation period during a specified period, 3 removing those days from the count toward one year. See generally 953 F.3d at 586 & 4 589; see also ECF No. 93, at 11. Under an at least strict stop-clock approach, if Valerio 5 established a basis for equitable tolling for the first, 318-day period, he potentially would 6 have been able to overcome the otherwise untimeliness of the Petition without regard to 7 the second, 337-day period. Under such a strict or simple stop-clock approach, in that 8 event, he still would be under 365 days in untolled time when he filed his federal petition 9 if the limitation clock was stopped by equitable tolling for the full 318 days.3 10 Under Smith, however, Valerio must show, inter alia, that he exercised reasonable 11 diligence during the entirety of all otherwise untolled time, including the second, 337-day 12 period, even if he arguendo otherwise established that an extraordinary circumstance 13 stood in the way of his filing during the first, 318-day period. 953 F.3d at 598-600; see 14 also ECF No. 93, at 12-16 (rejecting Valerio’s argument seeking to limit the application of 15 Smith). Valerio further must show essentially a causal nexus between any earlier 16 arguendo extraordinary circumstance during the first, 318-day period and his failure to file 17 a timely federal petition, i.e., that the extraordinary circumstance prevented a timely filing 18 despite his exercise of reasonable diligence throughout all otherwise untolled periods 19 prior to his federal filing. See 953 F.3d at 589, 595 & 598-600; see also ECF No. 93, at 20 11-13. 21 The Court accordingly gave Valerio an opportunity to tender any available 22 evidence that might tend to establish the exercise of reasonable diligence during the 23 second, 337-day period. (ECF No. 93, at 15-19.) Following that opportunity, Valerio 24 represents that he “does not have any new specific factual allegations or evidence to 25 submit in further support of tolling” over and above that provided previously in support of 26 3 The Court refers to a “strict” or “simple” stop-clock approach because prior to Smith a question 27 remained in Ninth Circuit caselaw as to the extent under the stop-clock approach that a petitioner nonetheless had to show reasonable diligence after the equitable tolling event that “stopped the clock” had 28 ceased. Prior to the stay to await Smith, this question was to be addressed by the parties during the briefing heading into the evidentiary hearing. (See ECF No. 80, at 3-4.) 1 his effort to establish equitable tolling. (ECF No. 96, at 2.) The Court notes that that prior 2 evidence pertained to the first, 318-day period and not otherwise specifically to the 3 second, 337-day period. Petitioner’s filing reflects his understanding that “as this Court 4 indicated in its Order, that the inability to provide new evidence as the Court requested 5 means “’the petition likely will be dismissed as untimely.’” (Id.)4 6 Given the intervening authority in Smith, and considering all factual presentation 7 tendered previously herein, there is no occasion for further proceedings in this matter on 8 the timeliness issue. Under Smith, Valerio will not be able to successfully establish 9 equitable tolling to render the Petition timely, because he cannot demonstrate reasonable 10 diligence during the entirety of the otherwise untolled time. In Pace v. DiGuglielmo, 544 11 U.S. 408, 419 (2005), a petitioner’s failure to demonstrate reasonable diligence for 12 periods as short as five and seven months was fatal to his effort to establish equitable 13 tolling on the facts presented. Here, Valerio clearly cannot establish reasonable diligence 14 for over 11 months, nearly a full year, and extending nearly 10 months after the putative 15 expiration of the limitation period. Considering the entire factual presentation previously 16 tendered in this case,5 Valerio cannot establish a viable basis for equitable tolling with no 17 tendered showing of the exercise of reasonable diligence specifically during such an 18 extended period. 19 The Court has complied with the prior remand order and mandate in entertaining 20 further record development, in fact extensive factual development following upon 21 discovery. However, based on the intervening authority in Smith and the factual record 22 heretofore presented, further proceedings on the timeliness issue are not warranted. To 23 the extent that the prior appellate decision and mandate in this case otherwise might have 24 required further factual development prior to judgment, the mandate rule is subject to 25 4 The Court acknowledges Valerio’s otherwise previously preserved legal arguments in the event 26 of any appeal.
27 5 See, e.g., the factual and/or evidentiary summaries at ECF No. 80, at 1-3; ECF No. 66, at 4-5. The Court notes that by the time of the second, 337-day period, Valerio would have been 23 to 24 years 28 old, considering his current age of 37 as per the state correction department’s online inmate locator, at https://ofdsearch.doc.nv.gov/form.php . 1 intervening controlling authority, such as the Ninth Circuit’s en banc Smith decision here. 2 See, e.g., In re Molasky, 843 F.3d 1179, 1184 n.5 (9th Cir. 2016). 3 The Court therefore will direct entry of final judgment dismissing this action with 4 prejudice as untimely. The Court is confident that it has reached the correct result for the 5 correct reasons without further proceedings herein. However, given, inter alia, the 6 extended proceedings herein, the prior remand, and further the panel’s retention of 7 jurisdiction over any subsequent appeal, the Court will grant a certificate of appealability. 8 IT IS THEREFORE ORDERED that the Petition shall be DISMISSED with 9 prejudice as untimely. 10 IT IS FURTHER ORDERED that a certificate of appealability is GRANTED. The 11 Court of Appeals may wish to note that the panel on the prior appeal, No. 11-16384, 12 retained jurisdiction over any future appeal in the matter. 13 The Clerk of Court, prior to entry of judgment, shall substitute Tim Garrett for 14 Anthony Scillia as a respondent herein. 15 The Clerk thereupon then shall enter final judgment, dismissing the Petition with 16 prejudice and closing this action. 17 DATED THIS March 9, 2021 18 19 _________________________________ 20 Gloria M. Navarro 21 United States District Judge 22 23 24 25 26 27 28