Strickland v. State of Nevada et al

Filing 2

ORDER that 1 Motion/Application for Leave to Proceed in forma pauperis is GRANTED. The clerk shall file the petition. FURTHER ORDERED that within thirty (30) days from the date of entry of this order, petitioner SHALL FILE points and authorities, together with such evidence he may have, that demonstrates either that he submitted his federal habeas corpus petition in a timely manner, or that he is entitled to equitable tolling of the one-year limitations period imposed by the AEDPA. Petitione r's failure to comply with this order will result in the dismissal of this action. FURTHER ORDERED that the clerk shall NOT serve respondents with the habeas corpus petition at this time. Signed by Judge James C. Mahan on 10/31/14. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

8
9
10

ANTHONY STRICKLAND,
11
Petitioner,

Case No. 2:14-cv-01281-JCM-CWH

12
vs.

ORDER

13
STATE OF NEVADA, et al.,
14
Respondents.
15
16
17
18
19

This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254
by a Nevada state prisoner.
Petitioner’s application to proceed in forma pauperis establishes that the petitioner qualifies

20

for in forma pauperis status. He shall be granted leave to proceed in forma pauperis, and shall not

21

be required to pay the filing fee for his habeas corpus petition. The petition will be ordered filed

22

and docketed.

23

Petitioner challenges a 2004 criminal conviction in state district court. The court will not

24

order the petition served on respondents, because it appears likely that the petition was filed outside

25

the AEDPA one-year limitations period, and may be subject to dismissal on that basis. 28 U.S.C. §

26

2244(d)(1). The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a one-year

27

statute of limitations on the filing of federal habeas corpus petitions. Specifically, and in pertinent

28

part, the statute reads:

1
2

(d)(1) A 1-year period of limitation shall apply to an application for
a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period shall run from the
latest of–

3
(A) the date on which the judgment became
final by the conclusion of direct review or the
expiration of the time for seeking such review;

4
5

(B) the date on which the impediment to filing
an application created by State action in
violation of the Constitution or laws of the
United States is removed, if the applicant was
prevented from filing by such State action;

6
7
8

(C) the date on which the constitutional right
asserted was initially recognized by the
Supreme Court, if the right has been newly
recognized by the Supreme Court and made
retroactively applicable to cases on collateral
review; or

9
10
11
12

(D) the date on which the factual predicate of
the claim or claims presented could have been
discovered through the exercise of due
diligence.

13
14
28 U.S.C. § 2244(d)(1).
15

The AEDPA statute of limitations has serious implications for petitioner. According to the
16
petition, petitioner was convicted on November 3, 2004. Petitioner signed his federal habeas
17
petition and dispatched it for mailing on July 30, 2014. It appears likely that the petition was filed
18
well outside the AEDPA one-year limitations period. Petitioner will be granted an opportunity to
19
demonstrate either that he submitted his federal habeas corpus petition in a timely manner, or that he
20
is entitled to equitable tolling of the one-year limitations period imposed by the AEDPA, as
21
specified at the conclusion of this order.
22
IT IS THEREFORE ORDERED that petitioner’s application to proceed in forma pauperis
23
(ECF No. 1) is GRANTED. Petitioner shall not be required to pay a filing fee to file his habeas
24
corpus petition. The habeas corpus petition shall be FILED and docketed by the clerk of court.
25
IT IS FURTHER ORDERED that within thirty (30) days from the date of entry of this
26
order, petitioner SHALL FILE points and authorities, together with such evidence he may have,
27
that demonstrates either that he submitted his federal habeas corpus petition in a timely manner, or
28
-2-

1

that he is entitled to equitable tolling of the one-year limitations period imposed by the AEDPA.

2

Petitioner’s failure to comply with this order will result in the dismissal of this action.

3
4
5

IT IS FURTHER ORDERED that the clerk shall NOT serve respondents with the habeas
corpus petition at this time.
October 31, 2014.
DATED this _____ day of ______________________________, 2014.

6
7
8
UNITED STATES DISTRICT JUDGE
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-