Holmes v. Williams et al

Filing 14

ORDER that this action is DISMISSED with prejudice because it is untimely. The Clerk shall enter judgment accordingly. FURTHER ORDERED that a certificate of appealability is DENIED. Signed by Judge James C. Mahan on 7/5/13. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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ROBERT HOLMES III,

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Petitioner,

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vs.

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BRIAN WILLIAMS, et al.,

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Case No. 2:12-cv-00013-JCM-GWF

Respondents.

ORDER

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The court directed petitioner to show cause why the court should not dismiss this action as

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untimely. Order (#3). Petitioner has submitted a response (#7), in which he makes two arguments

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why the court should not dismiss the action. The court rejects both arguments and dismisses the

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action.

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First, petitioner argues that the Nevada Supreme Court erred in determining that his state

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habeas corpus petition is untimely, which, in turn, would make those proceedings eligible for tolling

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pursuant to § 2244(d)(2). The Nevada Supreme Court’s decision is not subject to review by this

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court. “When a postconviction petition is untimely under state law, ‘that [is] the end of the matter’

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for purposes of § 2244(d)(2).” Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (quoting Carey v.

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Saffold, 536 U.S. 214, 226 (2002)). The untimely state habeas corpus petition does not toll the

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period of limitation.

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Second, petitioner argues that grounds 1 and 2 of the petition are challenges to the subject

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matter jurisdiction of the state court to accept his guilty plea, and that he can raise a jurisdictional

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challenge at any time. The language of the statute of limitation contains no such exceptions, and no

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court has determined that such exceptions exist. Cf. Barreto-Barreto v. United States, 551 F.3d 95,

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100 (1st Cir. 2008) (holding that no exception for jurisdictional challenges exists for equivalent

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period of limitations of motion attacking a federal sentence pursuant to 28 U.S.C. § 2255).

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Reasonable jurists would not find the court’s conclusion to be debatable or wrong, and the
court will not issue a certificate of appealability.
IT IS THEREFORE ORDERED that this action is DISMISSED with prejudice because it is
untimely. The clerk of the court shall enter judgment accordingly.

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IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

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DATED: July 5, 2013.

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_________________________________
JAMES C. MAHAN
United States District Judge

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