Selander v. Acting Warden et al

Filing 10

ORDER denying 2 Motion to Appoint Counsel. ; denying 8 Motion to Appoint Counsel. ; denying 9 Motion to Extend Time. ; Case terminated. Certificate of Appealability is denied. Petition is dismissed with prejudice. Signed by Judge Jennifer A. Dorsey on 6/26/2017. (Copies have been distributed pursuant to the NEF, cc: Petition & Order to Respondents - JM)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3

***

4
5
6
7
8
9

LESTER SELANDER,
v.

Case No. 2:16-cv-02477-JAD-NJK
Petitioner,
ORDER

ACTING WARDEN,

[ECF Nos. 1-1, 2, 8, 9]

Respondents.

On December 23, 2016, I ordered pro se habeas petitioner Lester Selander to

10

show cause why his petition is not time barred. ECF No. 4. I noted that it appears from

11

the state-court record that the AEDPA deadline for Selander to file a federal habeas

12

petition expired on August 22, 2014. Id. (citing 28 U.S.C. § 2244(d)(1)(A)).

13

In response to that order, Selander filed a second motion for appointment of

14

counsel (ECF No. 8). In that motion, he does not dispute that this federal petition was

15

filed after the expiration of the AEDPA statute of limitations. He makes the bare

16

assertion that the alleged victim has recanted and that he is actually innocent. He

17

claims that this is newly discovered evidence and that he has “made a record” with this

18

court to support his contention. Apparently, Selander refers to documents that he

19

attached to the motion for appointment of counsel that appear to be one or more emails

20

perhaps sent in March 2014. Id. at 8 10. He offers no explanation whatsoever about

21

the attachments, nor does he identify their senders or recipients. In short, while

22

Selander has attempted to demonstrate that some extraordinary circumstance

23

prevented his timely filing, he provides no specific factual allegations whatsoever to

24

support his vague allegations of actual innocence. See Calderon v. United States

25

District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled in part on other

26

grounds, Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998);

27

Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

28
1

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Further, Selander sets forth no factual allegations whatsoever to demonstrate
that he diligently pursued his rights. See, e.g., Calderon, 128 F.3d at 1288. In fact, the
dates on the purported emails that Selander includes are from March 2014. But in his
subsequent post-sentence motion to withdraw guilty plea (which the state courts
construed as a postconviction habeas petition), he argues only that his plea counsel
was ineffective for failing to investigate the possibility of a statute of limitations defense.
See Nevada Court of Appeals Case No. 69259. Noticeably absent are any allegations
of newly discovered evidence that the victim recanted. Selander has thus failed to meet
his burden of demonstrating that he is entitled to equitable tolling of the one-year
limitation period.
In conclusion, petitioner’s federal petition is untimely. He has failed to
demonstrate a sufficient basis for equitable tolling or to excuse the statute of limitations.
Because the federal habeas petition was untimely filed, and because petitioner is not
entitled to statutory or equitable tolling, this action must be dismissed with prejudice as
untimely.
Accordingly,
IT IS THEREFORE ORDERED that the Clerk of Court shall detach and file the
petition (ECF No. 1-1).
IT IS FURTHER ORDERED that the petition is DISMISSED with prejudice as
untimely.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED because
jurists of reason would not find the court’s dismissal of this petition to be debatable or
incorrect.
IT IS FURTHER ORDERED that the Clerk shall add Adam Paul Laxalt, Nevada
Attorney General, as counsel for respondents.

26
27
28
2

1
2
3
4
5
6
7
8
9
10

IT IS FURTHER ORDERED that the Clerk shall electronically serve the petition,
along with a copy of this order, on respondents. No response by respondents is
necessary, however.
IT IS FURTHER ORDERED that petitioner’s first and second motions for
appointment of counsel (ECF Nos. 2 and 8) and petitioner’s motion to extend time for
discovery (ECF No. 9) are all DENIED as moot.
The Clerk of Court is directed to ENTER JUDGMENT accordingly and
CLOSE THIS CASE.
DATED: June 26, 2017.

11

JENNIFER A. DORSEY
A. DORSEY
DO EY
EY
UNITED STATES DISTRICT JUDGE
TATES DISTRIC
T

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