Bailey v. Gentry et al

Filing 7

ORDER that, within thirty (30) days of entry of this order, petitioner shall show cause in writing why the petition should not be dismissed with prejudice as time-barred. No extension of time will be granted to respond to this order except in the most compelling of circumstances. FURTHER ORDERED that 3 Motion to Appoint Counsel is DENIED. Signed by Judge James C. Mahan on 4/6/17. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
DISTRICT OF NEVADA
8
9
10
11
12
13
14

LARRY BAILEY,

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

2:17-cv-00866-JCM-PAL
ORDER

15
16
17
18

This is a habeas corpus proceeding under 28 U.S.C. § 2254 brought by Larry Bailey, a
Nevada prisoner.
In reviewing Bailey’s petition under Rule 4 of the Rules Governing Section 2254 Cases, the

19

court notes the conviction and sentence Bailey seeks to challenge was entered in August of 2008,

20

with his subsequent direct appeal decided on December 4, 2009. There is no indication Bailey

21

sought a writ of certiorari in the United States Supreme Court. Bailey waited until September 18,

22

2015, to file petition for post-conviction relief in the state court. Thus, it does not appear he initiated

23

this action within the one-year limitation period in 28 U.S.C.§2244(d)(1). Consequently, Bailey

24

must show cause in writing why the petition should not be dismissed with prejudice as time-barred.

25
26

Pursuant to Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001), the court sua sponte raises the
question of whether the petition is time-barred for failure to file the petition within the one-year

1

limitation period in 28 U.S.C. § 2244(d)(1). Under 28 U.S.C. § 2244(d)(1)(A), the federal one-year

2

limitation period, unless otherwise tolled or subject to delayed accrual, begins running after "the date

3

on which the judgment became final by the conclusion of direct review or the expiration of the time

4

for seeking such direct review." So, in the present case, the limitation period began running 90 days

5

from the date the Nevada Supreme Court decided Bailey’s direct appeal, i.e., on Thursday, March 4,

6

2010. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) (“[W]hen a petitioner fails to seek a

7

writ of certiorari from the United States Supreme Court, the AEDPA's one-year limitations period

8

begins to run on the date the ninety-day period defined by Supreme Court Rule 13 expires.”). Absent

9

tolling or delayed accrual, the limitation period expired one year later on Friday, March 4, 2011.

10

Under 28 U.S.C. § 2244(d)(2), the federal limitation period is statutorily tolled during the

11

pendency of a properly filed application for state post-conviction relief or for other state collateral

12

review. However, if a state court determines the collateral challenge was not timely filed under state

13

law, the collateral challenge is not “properly filed” for purposes of 28 U.S.C. § 2244(d)(2). Pace v.

14

DiGuglielmo, 544 U.S. 408, 417 (2005). In other words, “[w]hen a postconviction petition is

15

untimely under state law, ‘that [is] the end of the matter’ for purposes of § 2244(d)(2).” Id. at 414

16

(citation omitted). Also, once a state post-conviction proceeding pursuant a properly filed

17

application has concluded, the statutory time period resumes running.

18

Bailey is informed that the one-year limitation period may be equitably tolled. Equitable

19

tolling is appropriate only if the petitioner can show: (1) that he has been pursuing his rights

20

diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.

21

Holland v. Florida, 130 S.Ct. 2549, 1085 (2010). Equitable tolling is "unavailable in most cases,"

22

Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999), and "the threshold necessary to trigger

23

equitable tolling is very high, lest the exceptions swallow the rule," Miranda v. Castro, 292 F.3d

24

1063, 1066 (9th Cir. 2002) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)).

25

The petitioner ultimately has the burden of proof on this “extraordinary exclusion.” Miranda, 292

26

2

1

F.3d at 1065. He must demonstrate a causal relationship between the extraordinary circumstance and

2

the lateness of his filing. E.g., Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). Accord Bryant v.

3

Arizona Attorney General, 499 F.3d 1056, 1061 (9th Cir. 2007).

4

Bailey is advised that the equitable rule in Martinez v. Ryan, 132 S.Ct. 1309 (2012), “applies

5

only to the issue of cause to excuse the procedural default of an ineffective assistance of . . . counsel

6

claim that occurred in a state collateral proceeding” and “has no application to the operation or

7

tolling of the § 2244(d) statute of limitations” for filing federal habeas petitions. Chavez v. Sec'y,

8

Fla. Dep't of Corr., 742 F.3d 940, 943 (11th Cir. 2014) (citing Arthur v. Thomas, 739 F.3d 611,

9

629-631 (11th Cir. 2014)). See Manning v. Epps, 688 F.3d 177, 189 (5th Cir. 2012) (Martinez does

10
11
12

not extend to the statute of limitations period under 28 U.S.C. § 2244(d)(1)(B));.
Under certain circumstances, the one-year limitation period may begin running on a later date
or, as mentioned, may be statutorily tolled. See 28 U.S.C. § 2244(d)(1)(B-D) & (d)(2).

13

Finally, Bailey has also filed a motion for appointment of counsel. ECF No. 3. Pursuant to

14

18 U.S.C. §3006A(a)(2)(B), the district court has discretion to appoint counsel when it determines

15

the “interests of justice” require representation. There is no constitutional right to appointed counsel

16

for a federal habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555(1987); Bonin v.

17

Vasquez, 999 F.2d 425, 428 (9th Cir. 1993). The decision to appoint counsel is generally

18

discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Bashor v. Risley, 730 F.2d

19

1228, 1234 (9th Cir. 1984). However, counsel must be appointed if the complexities of the case are

20

such that denial of counsel would amount to a denial of due process, and where the petitioner is a

21

person of such limited education as to be incapable of fairly presenting his claims. See Chaney, 801

22

F.2d at1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir. 1970).

23

The initial threshold issue of timeliness is not complex. Based on the documents already

24

submitted, the court finds Bailey capable of addressing that issue without assistance of counsel.

25

Thus, appointment of counsel is not warranted at this point in the proceeding; and, Bailey’s motion

26

3

1

shall be denied. Should he demonstrate that his petition is timely, Bailey may move the court to

2

reconsider this issue.

3

IT IS THEREFORE ORDERED that, within thirty (30) days of entry of this order,

4

petitioner shall show cause in writing why the petition should not be dismissed with prejudice as

5

time-barred. If petitioner does not timely respond to this order, the petition will be dismissed with

6

prejudice as time-barred without further advance notice. If petitioner responds but fails to show –

7

with specific, detailed and competent evidence – that the petition is timely, the action will be

8

dismissed with prejudice.1

9

IT FURTHER IS ORDERED that all assertions of fact made by petitioner in response to

10

this show-cause order must be detailed, must be specific as to time and place, and must be supported

11

by competent evidence. The court will not consider any assertions of fact that are not specific as to

12

time and place, that are not made pursuant to a declaration under penalty of perjury based upon

13

personal knowledge, and/or that are not supported by competent evidence filed by petitioner in the

14

federal record. Petitioner must attach copies of all materials upon which he bases his argument that

15

the petition should not be dismissed as untimely. Unsupported assertions of fact will be disregarded.

16
17
18
19
20

No extension of time will be granted to respond to this order except in the most
compelling of circumstances.
IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel (ECF No.
3) is DENIED.
Dated this ______ day of April, 2017.
April 6, 2017.

21
22

UNITED STATES DISTRICT JUDGE

23
24
25

1

This order does not explicitly or implicitly hold that the petition otherwise is free of
deficiencies.

26
4