Nash v. Gentry et al

Filing 9

ORDER. IT IS ORDERED that this action is DISMISSED with prejudice as untimely. IT IS FURTHER ORDERED that petitioner is denied a certificate of appealability. IT IS FURTHER ORDERED that the clerk of the court shall enter judgment accordingly. Signed by Judge James C. Mahan on 10/12/16. (Copies have been distributed pursuant to the NEF - ADR)

1
2
3
4
5
UNITED STATES DISTRICT COURT
6
DISTRICT OF NEVADA
7
8
9
10
11
12

NANCY E. NASH,

)
)
Petitioner,
)
)
vs.
)
)
JO GENTRY, et al.,
)
)
Respondents.
)
____________________________________/

2:16-cv-00901-JCM-NJK
ORDER

13
14

This is a habeas corpus case under 28 U.S.C. § 2254. On June 17, 2016, this court entered an

15

order directing petitioner to show cause why this action should not be dismissed with prejudice as

16

time-barred under 28 U.S.C. § 2244(d). ECF No. 5. On July 7, 2016, petitioner filed her response to

17

that order. ECF No. 8.

18

In her response, petitioner claims that she has new evidence of her “actual innocence.” The

19

evidence she proffers is a presentence investigation report prepared in 2007 and letter dated January

20

15, 2013, signed by a lawyer who states in the letter that he represented Nash in relation to the real

21

estate transaction for which Nash was convicted of defrauding investors. The gist of the letter is that

22

Nash intended to repay the investors she was convicted of defrauding and was herself a victim of her

23

business associate’s malfeasance. The letter also refers to an attached letter dated April 5, 2005, that

24

the lawyer purportedly sent to the associate. In that letter, the lawyer describes his understanding of

25

the agreement between Nash and the associate.

26

1

A federal court may entertain an untimely claim if a petitioner makes a showing of actual

2

innocence. McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013). To qualify for the equitable

3

exception to the timeliness bar based on actual innocence, a petitioner “must show that it is more

4

likely than not that no reasonable juror would have convicted him in the light of the new evidence.”

5

133 S. Ct. at 1935 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). “[T]he emphasis on ‘actual

6

innocence’ allows the reviewing tribunal also to consider the probative force of relevant evidence

7

that was either excluded or unavailable at trial.” Schlup, 513 U.S. at 327-28. “[T]he gateway should

8

open only when a petition presents ‘evidence of innocence so strong that a court cannot have

9

confidence in the outcome of the trial unless the court is also satisfied that the trial was free of

10

nonharmless constitutional error.’” McQuiggin, 133 S. Ct. at 1936 (quoting Schlup, 513 U.S. at

11

316). “Unexplained delay in presenting new evidence bears on the determination whether the

12

petitioner has made the requisite showing.” Id. at 1935.

13

Nash appears to be arguing that the letters prove the presentence investigation report was

14

fabricated. This court is unable to discern how that is the case. Moreover, Nash’s conviction was

15

the result of a guilty plea, which predated the preparation of the report. The Ninth Circuit has

16

recognized that there is “a potential incongruity between the purpose of the actual innocence gateway

17

announced in Schlup and its application to cases involving guilty (or no contest) pleas.” Smith v.

18

Baldwin, 510 F.3d 1127, 1140 n.9 (9th Cir. 2007) (en banc). But even assuming that Schlup applies

19

in such situations, the letter from Nash’s former attorney states little more than his opinion or belief

20

that his former client did not act with wrongful intent in relation to the crime for which she was

21

convicted. It hardly constitutes new exculpatory evidence.

22

Because petitioner has failed to establish that she may be entitled to equitable tolling and has

23

not disputed the time calculations set forth in the court’s order to show cause (ECF No. 5), her

24

petition shall be dismissed as untimely under 28 U.S.C. § 2244(d).

25
26

IT IS THEREFORE ORDERED that this action is DISMISSED with prejudice as untimely.
2

1

IT IS FURTHER ORDERED that petitioner is denied a certificate of appealability.

2

IT IS FURTHER ORDERED that the clerk of the court shall enter judgment accordingly.

3

Dated this ______ day of October, 2016.
October 12, 2016.

4
5
UNITED STATES DISTRICT JUDGE
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

3