Warren III v. Howell

Opinion

JOSEPH NAPOLEON WARREN III, Case No.: 2:19-cv-01113-JAD-NJK Petitioner v. Order Dismissing Caseand Denying Motion for Appointment of Counsel HOWELL, et al., [ECF Nos. 1, 3, 7] Respondents Petitioner Joseph Napoleon Warren, III petitioned for a writ of habeas corpus under 28 U.S.C. § 2254.1 I issued an order to show cause as to whetherthe petition should be dismissed as time-barred under the Anti-Terrorism and Effective Death Penalty Act’s (AEDPA) one-year statute of limitations.2 In the show-cause order, I noted that it appeared from the state-court record that AEDPA’s deadline for Warren to file a federal habeas petition had expired nearly twenty-sixyears before Warren filed this petition.3 Because Warren has failed to demonstrate that his petition was filed within the limitations period or that he is entitled to equitable tolling of the AEDPA deadline, I dismiss his petition. Discussion Warren responds to the show-cause order by contending that he is entitled to equitable tolling of the one-year limitations period on the basis of the “magnitude of the constitutional violations” in his case.4 He asserts that the guilt and penalty phases of his trial should have been 1ECF No. 1-1. 2ECF No. 6. 3Id. 4ECF No. 7 at 2. bifurcated and that the prosecutor committed misconduct.5 He also includes as exhibits the jury instructions from the trial against him, excerpts from the trial transcript, the jury verdict, and the case summary.6 But Warren does not attempt to explain how he diligently pursued his rights or how some extraordinary circumstance stood in his way during these intervening decades.7 His response is silent as to why he did not pursue federal habeas relief earlier.8

I find that Warren has failed to demonstrate asufficient basis for equitable tolling or to otherwise excuse the delay. Because Warren’s federal habeas petition was untimely filed, and because Warren has not shown that he is entitled to statutory or equitable tolling, I dismiss Warren’s petition as untimely. IT IS THEREFORE ORDEREDthat the petition (ECF No. 1-1) is DISMISSEDwith prejudice. IT IS FURTHER ORDEREDthat a certificate of appealability is DENIEDbecause jurists of reason would not find the court’s dismissal of this decades-late petition to be debatable or incorrect.

IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel (ECF No. 3) is DENIED as moot. 5Id.at 3. 6 Id.at 6–29. 7SeePace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Calderon v. U.S. Dist. Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled in part on other grounds,Calderon v. U.S. Dist. Court (Kelly), 163 F.3d 530 (9th Cir. 1998). 8See ECF No. 7. IT IS FURTHER ORDERED that the Clerk of Court is directed to DETACH AND FILE 2\| THE PETITION (ECF No. 1-1), ENTER JUDGMENT accordingly, and CLOSE THIS CASE. as pe WRG U.S. District Ju deo Tennifer)A. Dorse October 28, 2019