Chapman v. Myles et al

Filing 5

ORDER that, within 30 days of entry of this order, petitioner shall SHOW CAUSE in writing why the petition should not be dismissed with prejudice. Denying without prejudice 2 Application for Leave to Proceed in forma pauperis and 3 Motion to proceed with appeal on criminal records. Signed by Judge Miranda M. Du on 10/23/2012. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA
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Case No. 2:12-cv-01804-MMD-VCF

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ROCHALONN M. CHAPMAN,

Petitioner,

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v.

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ORDER

CAROLYN MYLES, et al.,
Respondents.

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This habeas matter under 28 U.S.C. § 2254 comes before the Court for initial

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review under Rule 4 of the Rules Governing Section 2254 Cases as well as on

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petitioner’s application (dkt. no. 2) to proceed in forma pauperis and motion (dkt. no. 3)

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to proceed with appeal on criminal records. The pauper application notwithstanding, the

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filing fee has been paid.

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Following review, it appears that the petition is subject to dismissal with prejudice

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as time-barred for failure to file the petition within the one-year limitation period in 28

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U.S.C. § 2244(d)(1). Petitioner therefore will be directed to show cause why the petition

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should not be dismissed as time-barred.

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I.

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BACKGROUND
Petitioner Rochalonn Chapman challenges her Nevada state conviction,

pursuant to a jury verdict, of second-degree murder with the use of a deadly weapon.
Petitioner’s responses in the petition and the online docket records of the state
district court and state supreme court reflect the following.

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Petitioner’s conviction was affirmed on direct appeal in a December 6, 2007,

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decision by the Supreme Court of Nevada. The time period for filing a petition for a writ

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of certiorari in the United States Supreme Court expired on March 5, 2008.

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Nearly two years later, on or about January 6, 2010, petitioner filed a motion to

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modify sentence in the state district court. The court denied the motion on or about

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February 10, 2010. Petitioner did not appeal the denial of the motion. The time for

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doing so expired on or about March 12, 2010.
Nearly another two years later, on or about November 28, 2011, petitioner filed a

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motion to correct illegal sentence in the state district court.

The court denied the

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motion, and the Supreme Court of Nevada affirmed on appeal. The remittitur issued on

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August 20, 2012.
On or about September 28, 2012, petitioner mailed the federal petition to the

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Clerk of this Court for filing.

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II.

DISCUSSION

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Pursuant to Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001), the Court sua sponte

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raises the question of whether the petition is time-barred for failure to file the petition

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within the one-year limitation period in 28 U.S.C. § 2244(d)(1).

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Under 28 U.S.C. § 2244(d)(1)(A), the federal one-year limitation period, unless

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otherwise tolled or subject to delayed accrual, begins running after "the date on which

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the judgment became final by the conclusion of direct review or the expiration of the

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time for seeking such direct review." In the present case, the limitation period therefore

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began running after the ninety day time period expired for filing a petition for certiorari

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after the state supreme court affirmed the conviction on direct appeal, i.e., after March

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5, 2008.

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Under 28 U.S.C. § 2244(d)(2), the federal limitation period is statutorily tolled

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during the pendency of a properly filed application for state post-conviction relief or for

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other state collateral review.

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collateral review of the conviction at any time prior to March 5, 2009.

However, there were no state proceedings seeking

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Accordingly, absent other tolling or delayed accrual, the federal limitation period

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expired on March 5, 2009. The federal petition in this matter was not mailed for filing

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until on or about September 28, 2012, more than three years and six months after the

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federal limitation period had expired, absent other tolling or delayed accrual.

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petition therefore is untimely on its face.

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The

Petitioner therefore must show cause in writing why the petition should not be
dismissed with prejudice as time-barred.

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In this regard, petitioner is informed that the one-year limitation period may be

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equitably tolled. Equitable tolling is appropriate only if the petitioner can show: (1) that

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she has been pursuing her rights diligently, and (2) that some extraordinary

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circumstance stood in her way and prevented timely filing. Holland v. Florida, 130 S.Ct.

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2549, 1085 (2010). Equitable tolling is "unavailable in most cases," Miles v. Prunty, 187

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F.3d 1104, 1107 (9th Cir.1999), and "the threshold necessary to trigger equitable tolling

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is very high, lest the exceptions swallow the rule," Miranda v. Castro, 292 F.3d 1063,

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1066 (9th Cir.2002)(quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th

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Cir.2000)).

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exclusion.” 292 F.3d at 1065. She accordingly must demonstrate a causal relationship

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between the extraordinary circumstance and the lateness of her filing. E.g., Spitsyn v.

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Moore, 345 F.3d 796, 799 (9th Cir. 2003). Accord Bryant v. Arizona Attorney General,

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499 F.3d 1056, 1061 (9th Cir. 2007).

The petitioner ultimately has the burden of proof on this “extraordinary

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Petitioner also is informed that, under certain circumstances, the one-year

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limitation period may begin running on a later date or may be statutorily tolled. See 28

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U.S.C. § 2244(d)(1)(B), (C) & (D) & (d)(2).

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Moreover, if petitioner seeks to avoid application of the one-year limitation period

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based upon a claim of actual innocence, she must come forward with new reliable

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evidence tending to establish her innocence, i.e., tending to establish that no juror

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acting reasonably would have found her guilty beyond a reasonable doubt. See House

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v. Bell, 547 U.S. 518 (2006); Lee v. Lampert, 653 F.3d 929 (9th Cir. 2011)(en banc).
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III.

PENDING MOTIONS

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The pauper application is unnecessary at the present juncture given that

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petitioner has paid the filing fee. The application in any event is incomplete because

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petitioner failed to include the required attachments with the application.

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U.S.C. § 1915(a)(2) and Local Rule LSR 1-2, petitioner must attach both an inmate

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account statement for the past six months and a properly executed financial certificate.

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She attached neither.

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pauper status in the future in this or another matter. The present application, which

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again is unnecessary at this juncture, will be denied without prejudice.

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Petitioner should note these requirements should she seek

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In the motion to proceed with appeal on criminal records seeks to proceed with

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the “appeal” on the original state court records. This motion also will be denied without

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prejudice as unnecessary at this juncture.

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materials are required, the Court will direct that petitioner provide such copies or, if she

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is unable to do so, the Court will issue an order directing a response from respondents

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limited to filing copies of the necessary records. At the present juncture, however, it

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does not appear that obtaining a copy of the entire state court record is necessary to

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screen the petition. The motion therefore will be denied without prejudice.

If copies of relevant state court record

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Petitioner further may wish to note that this matter is not an “appeal” of the

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decision of the Supreme Court of Nevada, which is not a subordinate court to this

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federal district court.

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challenging a conviction as an “appeal,” this proceeding in truth is a collateral challenge

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to a state conviction pursuant to a petition for a writ of habeas corpus.

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IV.

Although inmates refer in lay parlance to all proceedings

CONCLUSION

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IT IS THEREFORE ORDERED that, within thirty (30) days of entry of this order,

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petitioner shall SHOW CAUSE in writing why the petition should not be dismissed with

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prejudice as time-barred. If petitioner does not timely respond to this order, the petition

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will be dismissed with prejudice as time-barred without further advance notice.

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If

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petitioner responds but fails to show – with specific, detailed and competent evidence –

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that the petition is timely, the action will be dismissed with prejudice.

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IT IS FURTHER ORDERED that all assertions of fact made by petitioner in

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response to this show cause order must be detailed, must be specific as to time and

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place, and must be supported by competent evidence. The Court will not consider any

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assertions of fact that are not specific as to time and place that are not made pursuant

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to a declaration under penalty of perjury based upon personal knowledge, and/or that

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are not supported by competent evidence filed by petitioner in the federal record.

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Petitioner thus must attach copies of all materials upon which she bases her argument

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that the petition should not be dismissed as untimely. Unsupported assertions of fact

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will be disregarded.

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IT IS FURTHER ORDERED that this order does not signify by omission that

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either the petition or the claims therein otherwise are free of deficiencies, as the Court

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defers consideration of any other deficiencies in the papers presented until after

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assessing the timeliness issue in the first instance.

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IT IS FURTHER ORDERED that petitioner’s application (dkt. no. 2) to proceed in

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forma pauperis and motion (dkt. no. 3) to proceed with appeal on criminal records both

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are DENIED without prejudice.

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DATED THIS 23rd day of October 2012.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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