Moore v. Williams et al

Filing 4

ORDER that the Clerk shall file and electronically serve petition upon the respondents. IT IS FURTHER ORDERED that petitioner shall show cause and file proof, within 30 days of this order, that his petition was filed within the 1-year time limitation. Respondent have 20 days to file a response to petitioner's proof. Signed by Judge James C. Mahan on 1/10/12. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MARLOS M. MOORE,
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Petitioner,
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vs.
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BRIAN E. WILLIAMS, et al.,
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Respondents.
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2:11-cv-01654-JCM-VCF
ORDER

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Petitioner Marlos M. Moore has filed a pro se petition for writ of habeas corpus, pursuant
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to 28 U.S.C. § 2254 (ECF #1) and paid the filing fee. It appears from the petition that it was submitted
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outside the applicable limitations period and may be subject to dismissal on that basis.
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The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a one-year statute
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of limitations on the filing of federal habeas corpus petitions. 28 U.S.C. § 2244(d). The one-year time
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limitation can run from the date on which a petitioner’s judgment became final by conclusion of direct
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review, or the expiration of the time for seeking direct review. 28 U.S.C. § 2244(d)(1)(A). Further, a
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properly filed petition for state postconviction relief can toll the period of limitations. 28 U.S.C. §
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2244(d)(2).
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According to the habeas petition, petitioner was convicted on March 22, 2007. It appears
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from documents that petitioner has included that this federal petition, filed on October 12, 2011, was
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filed after his third state habeas petition was denied as time-barred and successive. While unclear, the

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petition appears to have been filed beyond the one-year time limitation contained in the statute.

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Petitioner may be entitled to equitable tolling of the one-year limitations period if he can

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establish that he diligently pursued his right and some extraordinary circumstance stood in his way. See

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Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled in

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part on other grounds, Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998);

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Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The petitioner will be given the opportunity to show

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that either the instant petition was not filed beyond the one-year statute of limitations, or that he is

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entitled to equitable tolling of the time limitation.

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IT IS THEREFORE ORDERED that the Clerk shall FILE and ELECTRONICALLY
SERVE the petition (see ECF #1) upon the respondents.

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IT IS FURTHER ORDERED that petitioner shall have thirty (30) days from the entry

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IT IS FURTHER ORDERED that if petitioner files proof to demonstrate that the petition

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IT IS FURTHER ORDERED that if petitioner is unable to demonstrate that the petition

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Dated, this ___ day of January, 2012.

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___________________________________
______________________________
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UNITED STATES DISTRICT JUDGE
NITED STATES
E S
JUDG

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