Harris v. Williams et al

Filing 27

ORDER. IT IS HEREBY ORDERED, ADJUDGED, and DECREED that 22 respondents' Motion to Dismiss First Amended Petition for Writ of Habeas Corpus is GRANTED. IT IS FURTHER ORDERED that Harris is DENIED a certificate of appealability. The Clerk of Court is ordered to ENTER JUDGMENT accordingly and CLOSE THIS CASE. Signed by Judge Jennifer A. Dorsey on 10/27/17. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Brandon Kale Harris,

2:16-cv-01305-JAD-CWH

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Petitioner

Order Granting Motion to Dismiss and
Dismissing Case

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v.

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Brian E. Williams, et al.,

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Respondents

[ECF No. 22]

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Nevada-state prisoner Brandon Kale Harris was sentenced on October 25,

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2010,1 to serve 5–15 years in prison with lifelong post-release supervision

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(suspended), and he was placed on a five-year probation after he pled guilty to one

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count of attempted lewdness with a minor under the age of 14. The judgment of

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conviction was entered on November 8, 2010,2 and Harris never appealed it.

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Harris’s probation was revoked in April 2011 after he was arrested and charged

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with drinking in a public place, resisting a public officer, and failure of a convicted

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person to register,3 so his jail-time-and-supervised-release sentence was reinstated.4

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Harris appealed the reinstatement, and the Nevada Supreme Court affirmed it on

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May 9, 2012.5

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More than a year later, Harris filed a state-court habeas petition that was
denied; the Nevada Supreme Court affirmed the denial on May 13, 2014, because

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ECF No. 4 at 1.

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ECF No. 13-7.

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ECF Nos. 13-15, 13-16, 13-17.

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ECF No. 13-19.

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ECF No. 14-2.

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the state-court petition was untimely.6 After two more years of failed attempts to

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modify his sentence, Harris filed a pro se petition for a writ of habeas corpus on

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June 13, 2016.7 He was appointed counsel, and Harris’s counseled, first-amended

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petition was filed on February 24, 2017.8 The respondents move to dismiss it,

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arguing that the petition is barred by the statute of limitations.9 I agree that

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Harris’s claim is too late, so I grant the motion and dismiss this case.

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Discussion
A.

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Statute of limitations
The Antiterrorism and Effective Death Penalty Act (AEDPA), enacted in

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1996, included a one-year statute of limitations for federal habeas petitions

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challenging state convictions or sentences.10 On these facts, the statute begins to

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run from “the date on which the judgment became final by the conclusion of direct

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review or the expiration of the time for seeking such review”—whichever is later.11

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The Nevada Supreme Court affirmed Harris’s amended judgment of conviction on

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May 9, 2012, and Harris had 90 days to file a petition for a writ of certiorari with

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the United States Supreme Court,12 making August 7, 2012, the date on which the

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statute of limitations began to run. The statute of limitations therefore

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expired—absent any tolling—on August 7, 2013.

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Harris filed a petition for writ of habeas corpus in the state district court on

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ECF No. 14-14.

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ECF No. 1.

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ECF No. 12.

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ECF No. 22.

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28 U.S.C. § 2244(d)(1) (2012).

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28 U.S.C. § 2244(d)(1)(A) (2012).

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See Supreme Court Rule 13.

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June 26, 2013.13 The AEDPA statute of limitations is tolled while “a properly filed

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application for state post-conviction or other collateral relief is pending.”14 Harris’s

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state-court habeas petition was not a “properly filed application,” however, because

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it was barred by the state-law statute of limitations.15 So his state-court petition

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did not toll his federal statute of limitations, and his period to file expired on

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August 7, 2013—nearly three years before he filed this petition.

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Harris argues that he is entitled to statutory tolling from November 8, 2010,

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the date on which his original judgment of conviction was filed, to May 20, 2016, the

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date on which the state district court denied a motion to withdraw guilty plea that

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Harris had filed on March 2, 2016.16 This argument is specious. Even if Harris’s

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March 2, 2016, motion to withdraw guilty plea is considered properly filed—which

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is a generous assumption17—any conceivable statutory tolling attributable to that

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motion would not have begun until it was filed,18 which was already two and a half

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years after the AEDPA limitations period expired.
Harris also makes a somewhat pro forma argument that he is entitled to

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equitable tolling because he “is a lay person and unskilled in the law,” “was

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unaware that there is a one-year statute of limitations for the filing of federal

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See ECF No. 14-4.

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28 U.S.C. § 2244(d)(2) (2012).

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See Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005).

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ECF Nos. 23 at 2–3; ECF No. 16-2; ECF No. 16-16.

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See ECF No. 16-16 at 3 (“[T]he Court finds this motion is inappropriate after

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Deft. has been sentenced . . . .”)
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See Raspberry v. Garcia, 448 F.3d 1150, 1153 n.1 (9th Cir. 2006); Ferguson v.

Palmateer
Nino v. Galaza

Jimenez v. White

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habeas corpus petitions,” and was diligent in pursuing his rights.19 A habeas corpus

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petitioner is entitled to equitable tolling if the petitioner shows: “‘(1) that he has

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been pursuing his rights diligently, and (2) that some extraordinary circumstance

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stood in his way’ and prevented timely filing.”20 Harris’s argument for equitable

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tolling is meritless. A pro se petitioner’s “lack of legal sophistication” or “ignorance

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of the law” is not an extraordinary circumstance warranting equitable tolling.21

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Harris’s action comes three years too late, so it is barred by the statute of

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limitations. Because I grant the motion to dismiss on statute-of-limitations

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grounds, I do not reach respondents’ failure-to-exhaust argument. I also deny

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Harris a certificate of appealability because no reasonable jurist could find my

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decision to dismiss this three-years-expired case to be debatable or wrong.22

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Conclusion

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Accordingly, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that

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respondents’ Motion to Dismiss First Amended Petition for Writ of Habeas Corpus

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[ECF No. 22] is GRANTED.

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

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The Clerk of Court is ordered to ENTER JUDGMENT accordingly and
CLOSE THIS CASE.

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DATED: October 27, 2017.

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_______________________________
____ ________________
____
__ ________
_
_
Jennifer A. Dorsey
Jennifer A. Dorsey
n
nn f r
r
United States District Judge
District
United States Di tr
ited
t

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ECF No. 23 at 4.

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Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace, 544 U.S. at 418).

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Rasberry, 448 F.3d at 1154.

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See Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d
1074, 1077–79 (9th Cir. 2000); 28 U.S.C. § 2253(c) (2012).

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