Cepero v. Williams et al

Filing 32

ORDER granting ECF No. 22 Respondents' Motion to Dismiss; petition is dismissed with prejudice; a certificate of appealability is denied; Clerk directed to enter judgment and close this case. Signed by Judge Miranda M. Du on 1/22/2018. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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BILLY CEPERO,

Case No. 2:14-cv-01396-MMD-GWF

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Petitioner,

ORDER

v.
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BRIAN WILLIAMS, et al.,
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Respondents.
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This habeas matter under 28 U.S.C. § 2254 comes before the Court on

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respondents’ motion to dismiss petitioner Billy Cepero’s counseled, first-amended petition

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as untimely (ECF No. 22). Cepero opposed (ECF No. 25), and respondents replied (ECF

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No. 26). As discussed below, this petition must be dismissed as untimely.

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I.

BACKGROUND

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A jury convicted Cepero of count 1: resisting public officer; count 2: discharging

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firearm within a structure; count 4: carrying a concealed weapon or other deadly weapon;

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count 5: possession of firearm by ex-felon; and not guilty of count 3: battery on an officer

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with use of a deadly weapon (Exh. C).1 The state district court sentenced Cepero to four

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concurrent terms of life with the possibility of parole. Id. Judgment of conviction was

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entered on August 27, 2010. Id.

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referenced in this Order are attachments to petitioner’s first-amended
petition (ECF No. 18) and exhibits to respondents’ motion to dismiss (ECF No. 22), which
are found at ECF No. 23.
1Exhibits

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Cepero, through counsel, filed a notice of appeal of October 21, 2010. (Exh. D.)

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On March 17, 2011, the Nevada Supreme Court dismissed the untimely appeal for lack

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of jurisdiction. (Exh. E.)

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On June 24, 2014, Cepero filed a counseled state postconviction petition. (Exh.

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K.) The state district court denied the petition, and the Nevada Supreme Court affirmed

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the denial of the petition on October 19, 2015. (Exhs. N, T.)

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Cepero dispatched his federal habeas petition for mailing about August 12, 2014

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(ECF No. 1-1). On March 11, 2015, the Court granted Cepero’s motion for stay and

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abeyance pending the final resolution of his state-court proceedings (ECF No. 8). The

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Court granted Cepero’s motion to reopen the case on October 3, 2016, and Cepero filed

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a counseled, first-amended petition (ECF No. 18). Respondents have moved to dismiss

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the petition as time-barred (ECF No. 22).

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II.

LEGAL STANDARD — STATUTE OF LIMITATIONS

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The Antiterrorism and Effective Death Penalty Act (AEDPA) went into effect on

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April 24, 1996, and imposes a one-year statute of limitations on the filing of federal habeas

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corpus petitions. 28 U.S.C. § 2244(d). The one-year time limitation can run from the date

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on which a petitioner’s judgment became final by conclusion of direct review, or the

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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

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U.S.C. § 2244(d)(2).

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A petitioner may be entitled to equitable tolling if he can show “‘(1) that he has

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been pursuing his right diligently, and that (2) some extraordinary circumstance stood in

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his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2009) (quoting

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prior authority). Equitable tolling is “unavailable in most cases,” Miles v. Prunty, 187 F.3d

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1104, 1107 (9th Cir. 1999) and “the threshold necessary to trigger equitable tolling is very

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high, lest the exceptions swallow the rule,” Miranda v. Castro, 292 F.3d 1063, 1066 (9th

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Cir. 2002) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). The

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petitioner ultimately has the burden of proof on this “extraordinary exclusion.” 292 F.3d at
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1065. He accordingly must demonstrate a causal relationship between the extraordinary

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circumstance and the lateness of his filing. E.g., Spitsyn v. Moore, 345 F.3d 796, 799 (9th

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Cir. 2003).

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Ignorance of the one-year statute of limitations does not constitute an extraordinary

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circumstance that prevents a prisoner from making a timely filing. See Rasberry v. Garcia,

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448 F.3d 1150, 1154 (9th Cir. 2006) (“a pro se petitioner’s lack of legal sophistication is

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not, by itself, an extraordinary circumstance warranting equitable tolling”).

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III.

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INSTANT ACTION
Cepero alleges five federal grounds for habeas relief:
Ground 1: Cepero is entitled to a new trial because a juror slept
through portions of the trial in violation of Cepero’s Fifth and Fourteenth
Amendment rights (ECF No. 18, pp. 8-10).
Ground 2: Cepero is entitled to a new trial because the State
introduced improper bad act evidence in violation of his Fifth, Sixth, and
Fourteenth Amendment rights. Id. at 10-12.
Ground 3: Cepero’s trial counsel failed to communicate plea offers in
violation of Cepero’s Eighth Amendment rights. Id. at 12-13.
Ground 4: Cepero did not receive proper credit for time served
pending trial in violation of his Fifth, Sixth, and Fourteenth Amendment
rights. Id. at 13.

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Ground 5: Trial counsel provided ineffective assistance because he
failed to investigate the case. Id. at 14-16.

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Cepero’s thirty-day period to file a notice of appeal from his judgment of conviction

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with the Nevada Supreme Court expired on September 27, 2010. See NRAP 4(b)(1)(A);

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(Exh. 53). The AEDPA one-year statute of limitations thus began to run on September

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27, 2010. Cepero filed a notice of appeal on October 21, 2010. (Exh. D.) On December

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2, 2010, the Nevada Supreme Court suspended briefing and ordered Cepero’s counsel

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to demonstrate that the appeal should not be dismissed for lack of jurisdiction. (Exh. W.)

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As noted earlier, on March 17, 2011, the Nevada Supreme Court dismissed the untimely

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appeal for lack of jurisdiction. (Exh. E.) Remittitur issued on April 12, 2011. (Exh. Y.) As

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no properly filed appeal was pending, no time is tolled between the time Cepero filed his

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untimely notice of appeal and the date the Nevada Supreme Court dismissed the appeal.
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The AEDPA one-year deadline expired on September 27, 2011. On June 24, 2014,

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Cepero filed a counseled state postconviction habeas petition. (Exh. K.) On January 12,

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2015, the state district court dismissed his petition as untimely and without a showing of

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good cause and prejudice to excuse his late filing. Cepero timely appealed. (Exh. N.)

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Cepero again argued to the Nevada Court of Appeals that his attorneys’ neglect was good

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cause to excuse the untimely filing of his state petition, that the court should adopt

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equitable tolling, and that he was entitled to an evidentiary hearing. (Exhs. O, S.) The

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court of appeals affirmed the judgment of the lower court, concluding that Cepero‘s claim

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of ineffective assistance of appellate counsel was procedurally barred because it was

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reasonably available to be raised in a timely petition, and therefore, did not constitute

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cause for his untimely petition. (Exh. T.)

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This federal petition is, therefore, time-barred, unless Cepero can demonstrate that
he is entitled to equitable tolling of the AEDPA statute of limitations.

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In his first-amended petition, Cepero states that he “suffered a myriad of

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unfortunate deficiencies pertaining to his legal defense” (ECF No. 18 at 17). He alleges

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that he retained “several” attorneys who failed to properly represent him. (Id.) In his

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opposition to the motion to dismiss, he states, without elaboration, that he was essentially

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abandoned by numerous attorneys (ECF No. 25 at 3). He asserts that when his counsel

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failed to file anything in state court on his behalf, he filed motions to obtain a complete

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copy of his file in order to prepare a state postconviction habeas petition. (Id.)

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The Nevada Supreme Court dismissed Cepero’s untimely appeal on March 17,

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2011. The record reflects that Cepero filed a motion for production of documents on June

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15, 2011, and another one on September 16, 2011. (Exhs. F, G.) On October 30, 2012,

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Cepero filed a motion for enlargement of time to file a state postconviction petition, which

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the state district court denied. (Exhs. QQ, J.) Both the AEDPA and state statutes of

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limitations had long run by October 2012.

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Cepero sets forth no specific factual allegations about who he retained as counsel

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or when he retained them, nor has he described specifically any attempts to contact
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counsel or any representations counsel made with respect to filing any documents on

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Cepero’s behalf. Respondents point out that the record reflects that Michael Sanft

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represented Cepero at trial and that Sanft failed to file a timely direct appeal. (Exh. Z.) In

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Sanft’s response to the Nevada Supreme Court’s show-cause order regarding the

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untimeliness of the appeal, he stated that he did not receive a copy of the judgment of

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conviction and that he checked the court’s online docket entries which showed that no

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judgment of conviction was entered. (Exh. AA.) Thomas Michaelides substituted in for

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Sanft on February 22, 2011. (Exh. BB.) Thereafter, on March 17, 2011, the appeal was

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dismissed as untimely. (Exh. E.) In the order dismissing the appeal, the Nevada Supreme

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Court noted that to “assert an appeal deprivation claim, appellant must file a timely petition

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for a writ of habeas corpus in accordance with the provisions of NRS 34.720 to 34.830.

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NRAP 4(c)(1)(A). We express no opinion as to the merits of any such claim.” Id. at n.1.

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But instead of filing a state postconviction habeas petition, Cepero filed the
following, pro se:
(1) June 15, 2011, motion for production of documents related to Sanft (Exhs. EE,
FF);
(2) July 14, 2011, motion for amended judgment of conviction to include jail time
credits (Exh. GG);
(3) August 3, 2011, motion for production of documents related to the district
attorney providing him documents and photographs (Exh. II); and
(4) August 24, 2011, motion for transcripts at state expense (Exh. JJ).

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On August 27, 2011, the one-year state statute of limitations expired. Cepero thereafter

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filed the following, pro se:

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(1) September 7, 2011, motion for amended judgment of conviction to include jail
time credits (Exhs. KK, LL); and
(2) September 16, 2011, motion for production of documents (Exh. MM).

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The AEDPA one-year statute of limitations expired on September 27, 2011. Cepero

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thereafter filed the following, pro se:
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(1) May 24, 2012 motion for legal copies (Exh. NN);

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(2) July 2, 2012, motion to extend copywork limit (Exh. OO);

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(3) October 23, 2012, motion to compel counsel Michaelides to provide his case
file (Exh. PP); and

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(4) October 30, 2012, motion for a 90-day extension of time to file and serve his

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state postconviction petition (Exh. QQ).

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About one and one-half years later, on June 24, 2014, Cepero filed a state postconviction

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petition through counsel Christopher Oram. (Exh. K.)

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Cepero simply has not met the very high threshold to demonstrate that he is

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entitled to equitable tolling. First, Sanft’s failure to file a timely appeal is akin to a “simple

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miscalculation” that courts have characterized as “a garden variety claim of excusable

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neglect.” Holland, 560 U.S. at 651 (internal citations and quotations omitted); see also

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Spitsyn, 345 F.3d at 799-801. Moreover, Cepero has not demonstrated that he diligently

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pursued his rights. The Nevada Supreme Court specifically stated in its order dismissing

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the untimely appeal that a claim for deprivation of right to appeal should be raised in a

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timely state postconviction petition. And while Cepero thereafter filed motions for

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production of his case file, he then filed numerous other pro se motions, including motions

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to amend the judgment alleging miscalculation of time served. He did not, however, file a

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state postconviction petition until well over three years later. He only argues generally

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that he did not file a petition because his attorneys were deficient. Cepero has failed to

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demonstrate that his petition should not be dismissed as untimely.
Accordingly, respondents’ motion to dismiss this petition as time-barred is granted.

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This petition is dismissed with prejudice.

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IV.

CERTIFICATE OF APPEALABILITY

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This is a final order adverse to the petitioner. As such, Rule 11 of the Rules

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Governing Section 2254 Cases requires this Court to issue or deny a certificate of

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appealability (COA). Accordingly, the Court has sua sponte evaluated the claims within

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the petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v.

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Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002).

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Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner

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"has made a substantial showing of the denial of a constitutional right." With respect to

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claims rejected on the merits, a petitioner "must demonstrate that reasonable jurists would

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find the district court's assessment of the constitutional claims debatable or wrong." Slack

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v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4

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(1983)). For procedural rulings, a COA will issue only if reasonable jurists could debate

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(1) whether the petition states a valid claim of the denial of a constitutional right and (2)

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whether the court's procedural ruling was correct. Id.

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Having reviewed its determinations and rulings in dismissing Cepero’s petition, the

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Court finds that none of those rulings meets the Slack standard. The Court therefore

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declines to issue a certificate of appealability.

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It is therefore ordered that respondents’ motion to dismiss the petition (ECF No.
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It is further ordered that a certificate of appealability is denied.

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IT is further ordered that the Clerk enter judgment accordingly and close this case.

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DATED THIS 22nd day of January 2018.
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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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