Brown v. Baker et al

Filing 38

ORDER granting 28 Motion to Dismiss with prejudice; Certificate of appealability is denied. Signed by Chief Judge Gloria M. Navarro on 7/9/2019. (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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***

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TONY ONTIA BROWN,

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Case No. 2:17-cv-00387-GMN-CWH
Petitioner,

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ORDER

v.

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TIMOTHY FILSON, et al.,

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Respondents.

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Before the court is respondents’ motion to dismiss (ECF No. 28) in response to

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petitioner Brown’s first amended petition for writ of habeas corpus under 28 U.S.C. §

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2254 (ECF No 18). With their motion, respondents contend that Brown’s original petition

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is untimely, and that his amended petition contains claims that were not fairly presented

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in state court and are conclusory. For reasons that follow, the court will grant the motion

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and dismiss this case with prejudice.
BACKGROUND 1

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I.

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On December 22, 2011, a judgment of conviction was entered against Brown in

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the Eighth Judicial District Court for Nevada that imposed multiple concurrent sentences

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of life without possibility of parole under Nevada’s large habitual criminal statute. Brown

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timely appealed the conviction. He also filed a pro se post-conviction petition in the state

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district court that was denied for lack of jurisdiction due to his pending direct appeal.

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The following background information is based on exhibits filed at ECF Nos. 19-23, 29, and 30.

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On September 26, 2013, the Nevada Supreme Court entered an order affirming

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Brown’s judgment of conviction. The court subsequently denied Brown’s petition for en

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banc reconsideration on January 24, 2014.
On December 4, 2014, Brown filed a counseled petition for post-conviction relief

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in the state district court. After a change in counsel, he filed a supplemental petition that

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was denied. On appeal, the case was transferred to the Nevada Court of Appeals,

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which affirmed the lower court. A remittitur concluding that proceeding was issued on

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June 13, 2016.
Brown initiated this federal habeas proceeding on February 4, 2017.

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II.

DISCUSSION

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The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a

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one-year filing period for § 2254 habeas petitions in federal court. 28 U.S.C. §

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2244(d)(1). The one-year period begins to run from the latest of four possible triggering

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dates, with the most common being the date on which the petitioner’s state court

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conviction became final (by either the conclusion of direct appellate review or the

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expiration of time for seeking such review). Id. Statutory tolling of the one-year time

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limitation occurs while a “properly filed” state post-conviction proceeding or other

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collateral review is pending. 28 U.S.C. § 2244(d)(2).
Here, Brown concedes that he filed this habeas action 95 days after the

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expiration of AEDPA’s one-year filing period. 2 He argues, however, that he is entitled to

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equitable tolling of the statute of limitations due to attorney misconduct. Specifically, he

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alleges that the attorney representing him on direct appeal in the state court failed to

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timely notify him that his appeal had concluded. According to Brown, the statutory

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period should be equitably tolled from the date his conviction became final (April 24,

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2014) until the date he alleges counsel first notified him his direct appeal had been

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denied (December 4, 2014).

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Based on its calculation, this court finds the petition herein was filed 97 days late. For purposes of the
following analysis, however, the distinction matters not.

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Equitable tolling is appropriate only if the petitioner can show: (1) that he has

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

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in his way and prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010).

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Equitable tolling is "unavailable in most cases," Miles v. Prunty, 187 F.3d 1104, 1107

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(9th Cir. 1999), and "the threshold necessary to trigger equitable tolling is very high, lest

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the exceptions swallow the rule," Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)

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(quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). The petitioner

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ultimately has the burden of proof on this “extraordinary exclusion.” Miranda, 292 F.3d

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at 1065. He must demonstrate a causal relationship between the extraordinary

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circumstance and the lateness of his filing. E.g., Spitsyn v. Moore, 345 F.3d 796, 799

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(9th Cir. 2003). Accord Bryant v. Arizona Attorney General, 499 F.3d 1056, 1061 (9th Cir.

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2007).

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Brown fails to meet the standard for equitable tolling. Despite his allegations to

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the contrary, his proffered evidence does not conclusively show that counsel failed to

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notify him of the status of his appeal. He offers no declaration of his own, and his direct

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appeal attorney’s declaration merely states as follows:

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On 12/04/14 I received a telephone call from Mr. Brown asking the
status of his appeal. I was surprised because his appeal was denied on
01/24/14 and I thought he had received our paperwork regarding this
matter. Because of the limited time period for the filing, I agreed to refile
his previously filed Writ of Habeas in June and September 2013.

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ECF No. 33-1, p. 3. In the absence of any other probative evidence on the issue, it is

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not clear that counsel was at fault for Brown not being timely notified that his direct

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appeal was no longer pending. 3
Even if counsel, through oversight or negligence, failed to notify Brown of the

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appeal denial until December 4, 2014, that alone is not “unprofessional attorney

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To support an allegation that he was “kept in the dark by his appellate attorney,” Brown points to a
statement in his supplemental habeas petition that he “had no information provided to him as to the
‘briefing’ in Nevada Supreme Court case number 60082.” ECF No. 32, p. 3-4. However, that petition was
signed by Brown on September 9, 2012, more than two weeks prior to counsel filing Brown’s opening
brief on direct appeal. ECF No. 21-8; ECF No. 21-9, p. 8.
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conduct” that may “prove ‘egregious’ and can be ‘extraordinary.’” Holland, 560 U.S. at

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651. There is no showing that counsel failed to respond to any prior inquiries from

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Brown regarding the status of his appeal. Cf. Holland, 560 U.S. at 652 (“[Counsel] failed

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to communicate with his client over a period of years, despite various pleas from

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Holland that [counsel] respond to his letters.”); Gibbs v. Legrand, 767 F.3d 879, 887 (9th

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Cir. 2014). (“[Counsel] failed to communicate with Gibbs ‘over a period of years,’ despite

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repeated efforts by Gibbs to engage him.”). And, the fact that counsel filed Brown’s

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state post-conviction petition the same day as Brown’s inquiry demonstrates that she

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did not “abandon” him. ECF No. 33-1; see Maples v. Thomas, 565 U.S. 266, 282 (2012)

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(adopting Justice Alito’s concurring opinion in Holland, which “homed in on the essential

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difference between a claim of attorney error, however egregious, and a claim that an

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attorney had essentially abandoned his client”); Rudin v. Myles, 781 F.3d 1043, 1055

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(9th Cir. 2015) (applying Alito’s distinction to equitable tolling claim). Indeed, counsel’s

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swift response to the inquiry tolled the statute of limitations with 140 days of the one-

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year federal filing period still remaining.

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In sum, the evidence before the court falls well short of establishing that this is

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“an ‘extraordinary’ instance in which petitioner's attorney's conduct constituted far more

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than ‘garden variety’ or ‘excusable neglect.’” Holland, 560 U.S. at 652. Equitable tolling

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has been denied in cases of attorney error significantly more egregious than any

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demonstrated here. See, e.g., Miranda, 292 F.3d at 1067–68 (attorney's erroneous

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advice to client regarding the date his limitations period ended held not to constitute an

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extraordinary circumstance); Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001)

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(attorney's miscalculation of the limitations period and negligence in general held not to

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warrant equitable tolling, because a lawyer's mistake is not an extraordinary

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circumstance). Having concluded there was no extraordinary circumstance that

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prevented Brown from timely filing his federal petition, the court declines to address the

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other prong of the equitable tolling test – i.e., whether Brown pursued his rights

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diligently.
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III.

CONCLUSION

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Brown’s petition is time-barred and shall be dismissed with prejudice on that

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basis. Accordingly, the court will not address the respondents’ contentions regarding

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exhaustion and inadequate pleading.

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IT IS THEREFORE ORDERED that respondents’ motion to dismiss (ECF No. 28)

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is GRANTED. The amended petition for writ of habeas corpus (ECF No. 18) is

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DISMISSED with prejudice. The Clerk of Court shall enter judgment accordingly and

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close this case.

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IT IS FURTHER ORDERED that a certificate of appealability is denied, as
reasonable jurists would not find the court's dismissal of this case debatable or wrong.
July
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DATED THIS ___ day of _____________, 2019.

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UNITED STATES DISTRICT JUDGE

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