Cepero v. William et al

Filing 24

ORDER striking 22 Motion to Compel; granting 23 Motion to Strike. Case Dismissed with prejudice. Certificate of Appealability is denied. Signed by Judge Jennifer A. Dorsey on 8/23/2017. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BILLY CEPERO,

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Case No. 2:14-cv-01397-JAD-PAL

Petitioner,
ORDER DISMISSING
PETITION WITH PREJUDICE
AS UNTIMELY

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vs.

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BRIAN WILLIAM, et al.,

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Respondents.

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Petitioner Billy Cepero filed this § 2254 habeas petition to challenge his 2010 state-court

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conviction for home invasion.1 The court directed petitioner to show cause why this action should

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not be dismissed as untimely.2 Petitioner has filed a response (ECF No. 20), and respondents have

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filed a reply (ECF No. 21). Because petitioner and his counsel have not persuaded the court that

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equitable tolling is warranted, the court now dismisses this action as untimely.

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Discussion
A.

Equitable tolling
“[A] ‘petitioner’ is ‘entitled to equitable tolling’ only if he shows ‘(1) that he has been

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pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and

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prevented timely filing.”3 Petitioner first argues that he was unable to obtain his files from attorney

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Michael Sanft, Esq., who represented petitioner at trial and sentencing. However, respondents note

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correctly that petitioner requested and obtained the files from Sanft while the direct appeal was still

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ECF No. 12 at 2.

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2

ECF No. 16.

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Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408,
417 (2005)).

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pending and thus before the one-year period of limitation started.4 This was not an extraordinary

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circumstance that stood in the way of petitioner filing a federal habeas corpus petition.

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Petitioner next argues that he was unable to obtain his files from Thomas Michaelides, Esq.,

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who represented him on direct appeal. But, as respondents note correctly, petitioner did not start his

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efforts to obtain those files until after the state one-year period of limitation already had expired.5

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Here again, petitioner has not demonstrated the diligence necessary for equitable tolling.

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Nor can petitioner demonstrate a basis for equitable tolling for the time that his state habeas

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corpus petition was pending in the state courts (between January 13, 2013, when he filed that

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petition, and August 12, 2014, when he effectively commenced this action).6 The state statute of

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limitation, Nev. Rev. Stat. § 34.726(1) is a pleading requirement. Petitioner, represented by

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counsel, used the authorized form, and he acknowledged that the petition was filed more than one

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year after remittitur was issued.7 Petitioner thus knew at the time he filed the state petition that he

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had a problem with the timeliness of his state habeas corpus petition. As the Supreme Court

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recognized in Pace v. DiGuglielmo, an untimely state petition does not toll the federal period of

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limitation.8 Petitioner thus also knew or should have known that he had a problem with the

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timeliness of any federal habeas corpus petition. Pace proposes a solution for that problem: file a

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federal habeas corpus petition simultaneously and then move to stay the action.9 Instead, petitioner

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waited more than a year until after the state district court dismissed his petition for untimeliness. He

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has not demonstrated that he was unable to litigate—because he was litigating in state court. He

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See ECF No. 14-11 (Exhibit 11).

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See ECF No. 14-19 (Exhibit 19).

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The state post-conviction proceedings were still active on August 12, 2014. They
concluded on May 8, 2015. http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=33981
(report generated July 26, 2017).
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ECF No. 14-27 (Exhibit 27) at 5.

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Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005).

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Pace, 544 U.S. at 414.

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also has not demonstrated diligence because Pace instructs petitioner what to do in this situation,

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and he failed to do it.

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B.

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Certificate of appealability
Because reasonable jurists would not find the court’s conclusions to be debatable or wrong,

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the court will not issue a certificate of appealability.

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C.

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Pending motions
Petitioner has also filed a proper-person motion for the court to direct the Nevada

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Department of Corrections to provide recordings of attorney-client legal phone calls (ECF No. 22).

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Respondents move to strike it (ECF No. 23). The court grants respondents’ motion to strike

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because petitioner is represented by counsel, and the court’s local rules require all motions to be

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filed through counsel when a party is represented.10

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Order
IT IS THEREFORE ORDERED that respondents’ motion to strike [ECF No. 23] is

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GRANTED. The clerk of the court is directed to STRIKE [ECF No. 22] petitioner’s -person

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motion for the court to direct the Nevada Department of Corrections to provide recordings of

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attorney-client legal phone calls.

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IT IS FURTHER ORDERED that this action is DISMISSED with prejudice because it is
untimely. The clerk of the court is directed to enter judgment accordingly and close this case.

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

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DATED: August 23, 2017.

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_________________________________
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__________
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JENNIFER A. DORSEY
ER A. DORSEY
D S Y
United States District Judge
t Di t i t J d

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See LR IA 11-6(a).
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