Cogmon v. Williams, Sr. et al

Filing 10

ORDER. IT IS HEREBY ORDERED that 4 Petition for Writ of Habeas Corpus is DENIED. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. IT IS FURTHER ORDERED that 9 Motion to Appoint Counsel is DENIED. The Clerk of Court is instructed to CLOSE THIS CASE. Signed by Judge Jennifer A. Dorsey on 5/10/16. (Copies have been distributed pursuant to the NEF - TR)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3
4

Cecil Cogmon,
2:15-cv-02020-JAD-CWH

5

Petitioner
Order Denying Petition as Untimely,
Denying Motion for Appointment of
Counsel, and Closing Case

6

v.

7

Warden Brian E. Williams, SR., et al.,
[ECF No. 9]

8

Respondents

9
10

I ordered petitioner Cecil Cogmon to show cause why his § 2254 petition should not be

11

denied as time-barred.1 Cogmon timely filed his offer of proof,2 and respondents filed a response

12

that includes exhibits containing Cogmon’s state-court records.3

13

so I deny his petition, deny his motion for appointment of counsel, and close this case.

14

Cogmon’s claims are untimely,

Discussion

15

The state district court records reflect that the Nevada Supreme Court affirmed Cogmon’s

16

judgment of conviction on July 11, 2014.4 Cogmon’s conviction thus became final on September 9,

17

2014, when the time for seeking a writ of certiorari from the United States Supreme Court expired.5

18

Under AEDPA, Cogmon had one year—until September 9, 2015—to timely file his federal

19

habeas petition. Under the prison mailbox rule, a prisoner’s federal petition is deemed filed when he

20

dispatches it to prison authorities for the purpose of mailing the petition to the district court.6

21

Cogmon failed to indicate in the space provided in the form petition the date that he dispatched his

22
1

ECF No. 3.

2

ECF No. 6.

3

ECF No. 7.

26

4

Ex. 3.

27

5

28 U.S.C. § 2244(d)(1)(A); Clay v. United States, 537 U.S. 522, 527 (2003).

28

6

Houston v. Lack, 487 U.S. 266 (1988).

23
24
25

Page 1 of 3

1

federal petition for mailing; however, the Southern Desert Correctional Center law library outgoing

2

mail log indicates that he gave his petition to prison personnel for mailing on October 13, 2015,7

3

which is consistent with this court’s receipt of the petition on October 19, 2015. Because Cogmon’s

4

petition was dispatched after the September 9, 2015, deadline, his petition is untimely unless he is

5

entitled to equitable tolling. A petitioner is entitled to equitable tolling if he can show that he

6

diligently pursued his rights and that some extraordinary circumstances stood in his way.8 In

7

response to the show-cause order, Cogmon asserts:

8

10

My last attorney . . . left me and told me at the last minute that my case is [due] in Federal
Court. So I done my best with legal help of other inmates to mail it on time. If not for the
Prison here all would have ended well. As you see I had to file a prison grievance in my
behalf.9

11

Cogmon attaches a single grievance dated July 1, 2015, grieving that he needs to copy and

9

12

mail a federal habeas petition but that he was denied access to the law library.10 The grievance was

13

ultimately denied because Cogmon was denied access to the law library on that occasion because he

14

arrived late for his scheduled appointment.11

15

Cogmon’s bare assertion that his attorney told him at the last minute that his statute of

16

limitations would expire does not demonstrate that Cogmon diligently pursued his rights or that

17

extraordinary circumstances prevented him from timely filing his petition, nor does Cogmon’s

18

allegation that he was denied access to the law library on a single date more than a year after the

19

Nevada Supreme Court affirmed his judgment of conviction. I therefore deny Cogmon’s petition in

20

its entirety, deny his motion for appointment of counsel, and close this case

21
22
7

23

Ex. 4.

8

24
25

See Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997),
overruled in part on other grounds, Calderon v. United States District Court (Kelly), 163 F.3d 530
(9th Cir. 1998); Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

26

9

27

10

Id. at 5.

28

11

Id. at 7.

ECF No. 6 at 2.

Page 2 of 3

1

Conclusion

2

Accordingly, IT IS HEREBY ORDERED that Cogmon’s petition [ECF No. 4] is DENIED.

3

IT IS FURTHER ORDERED that a certificate of appealability is DENIED because jurists

4
5
6

of reason would not find the court’s dismissal of this petition to be debatable or incorrect.
IT IS FURTHER ORDERED that Cogmon’s motion for appointment of counsel [ECF No.
9] is DENIED.

7

The Clerk of Court is instructed to CLOSE THIS CASE.

8

Dated this 10th day of May, 2016.

9
10

_________________________________
______________________
__ _________ _ _
_
___
Jennifer A. Dorsey
nnifer A Dorse
fe
fe
sey
se
se
United States District Judge
ited States
d tate
t Judge
d

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 3 of 3