Coleman v. Najera et al

Filing 8

ORDER DISMISSING CASE. IT IS THEREFORE ORDERED that the Petition is dismissed with prejudice as untimely. A certificate of appealability is denied, as jurists of reason would not find dismissal of the Petition for the reasons stated herein to be de batable or wrong. IT IS FURTHER ORDERED that the motion for appointment of counsel (ECF No. 1 -2) is denied. IT IS FURTHER ORDERED that the Clerk of Court (1) file the Petition (ECF No. 1 -1), (2) add Nevada Attorney General Aaron D. Ford as counsel for Respondents, (3) informally serve the Nevada Attorney General with the Petition (ECF No. 1 -1), this Order, and all other filings in this matter by sending notices of electronic filing to the Nevada Attorney General's office, (4) enter final judgment, and (5) close this case. Signed by Judge Richard F. Boulware, II on 3/11/2025. (For Distribution by law library.) (Copies have been distributed pursuant to the NEF - ALZ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

4 DEMARENE COLEMAN,

Case No. 2:24-cv-00078-RFB-MDC
Petitioner,

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DISMISSAL ORDER

6 v.
7 WARDEN NAJERA, et al.,
Respondents.

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Pro se Petitioner Demarene Coleman filed a Petition for Writ of Habeas Corpus pursuant

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10 to 28 U.S.C. § 2254 (“Petition”). ECF No. 1-1. After conducting an initial review of the Petition,
11 this Court instructed Coleman to show cause why his Petition should not be dismissed as untimely.
12 ECF No. 5. Coleman timely responded. ECF No. 6. For the reasons discussed below, this Court
13 dismisses the Petition and instructs the Clerk of Court to close this case.
14 I.

BACKGROUND1

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Coleman challenges a conviction and sentence imposed by the Eighth Judicial District

16 Court for Clark County (“state court”). State of Nevada v. Demarene Coleman, 05C215295-1. On
17 August 22, 2007, and September 6, 2007, the state court entered a judgment of conviction and
18 amended judgment of conviction, respectively, pursuant to a guilty plea, for first-degree murder
19 and battery with the use of a deadly weapon. Coleman was sentenced to 20 to 50 years for the first20 degree murder conviction and 4 to 10 years for the battery conviction. Coleman did not file a direct
21 appeal.
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This Court repeats this section of its Order to Show Cause (ECF No. 5) for clarity purposes.

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On August 19, 2008, Coleman filed his first state habeas petition. The state court denied

2 post-conviction relief on February 26, 2009. Coleman did not appeal. See ECF No. 1-1 at 78 n.2.
3 On August 14, 2019, Coleman filed his second state habeas petition. Demarene Coleman v. State
4 of Nevada, A-19-800228-W. The state court denied post-conviction relief on December 9, 2019.
5 Coleman appealed, and the Nevada Court of Appeals affirmed on May 26, 2020. Demarene
6 Coleman v. State of Nevada, 80055-COA. On September 21, 2020, Coleman filed a federal habeas
7 petition, explaining that prison officials had miscalculated his statutory credits for parole eligibility
8 under Nevada law. Coleman v. State of Nevada, 2:20-cv-01754-APG-EJY. This Court dismissed
9 Coleman’s federal petition without prejudice because his claims were not cognizable in federal
10 habeas. On January 7, 2022, Coleman filed a motion to modify his sentence and appealed the state
11 court’s denial of that motion. The Nevada Court of Appeals affirmed on July 8, 2022. Demarene
12 Coleman v. State of Nevada, 84292-COA. On April 5, 2023, Coleman filed his third state habeas
13 petition. Demarene Coleman v. Warden Najera, A-23-868466-W. The state court denied post14 conviction relief on July 25, 2023. Coleman appealed, and the Nevada Court of Appeals affirmed
15 on November 28, 2023. Demarene Coleman v. Gabriela Najera, 86923-COA. And on October 9,
16 2023, Coleman filed his fourth state habeas petition. Demarene Coleman v. State of Nevada, A17 23-879247-W. The state court denied post-conviction relief on January 2, 2024.
18 II.

TIMELINESS STANDARD

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The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes a 1-year period

20 of limitations for state prisoners to file a federal habeas petition pursuant to 28 U.S.C. § 2254. The
21 1-year limitation period begins to run from the latest of four possible triggering dates, with the
22 most common being the date on which the petitioner’s judgment of conviction became final by
23 either the conclusion of direct appellate review or the expiration of the time for seeking such

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1 review. 28 U.S.C. § 2244(d)(1)(A). For a Nevada prisoner pursuing a direct appeal, a conviction
2 becomes final when the 90-day period for filing a petition for certiorari in the Supreme Court of
3 the United States expires after a Nevada appellate court has entered judgment or the Supreme
4 Court of Nevada has denied discretionary review. Harris v. Carter, 515 F.3d 1051, 1053 n.1 (9th
5 Cir. 2008); Shannon v. Newland, 410 F.3d 1083, 1086 (9th Cir. 2005); Sup. Ct. R. 13.
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The federal limitations period is tolled while “a properly filed application for State post-

7 conviction or other collateral review with respect to the pertinent judgment or claim is pending.”
8 28 U.S.C. § 2244(d)(2). No statutory tolling is allowed for the period between finality of a direct
9 appeal and the filing of a petition for post-conviction relief in state court because no state court
10 proceeding is pending during that time. Nino v. Galaza, 183 F.3d 1003, 1006–07 (9th Cir. 1999);
11 Rasberry v. Garcia, 448 F.3d 1150, 1153 n.1 (9th Cir. 2006).
12 III.

DISCUSSION

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Coleman’s conviction became final when the time expired for filing a direct appeal to the

14 Nevada appellate courts on October 8, 2007. See Nev. R. App. P. 4(b)(1) (requiring a notice of
15 appeal to “be filed with the district court clerk within 30 days after the entry of the judgment or
16 order being appealed”); Gonzalez v. Thaler, 565 U.S. 134, 137 (2012) (when a state prisoner “does
17 not seek review in a State’s highest court, the judgment becomes ‘final’ on the date that the time
18 for seeking such review expires”). The federal statute of limitations thus began to run the following
19 day: October 9, 2007. Coleman filed his first state petition on August 19, 2008, tolling the AEDPA
20 clock. As a result, 315 days elapsed between the finality of the judgment and the filing of the state
21 petition. The remaining 50 days of the AEDPA limitation period was statutorily tolled during the
22 pendency of all proceedings related to his state petition. Tolling ended on February 26, 2009, when
23 the state court denied his first state habeas petition since Coleman did not seek appellate review of

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1 that decision. The AEDPA clock restarted the following day: February 27, 2009. Consequently,
2 the AEDPA clock expired 50 days later on April 20, 2009. Coleman’s instant Petition was received
3 by this Court on January 9, 2024. Absent another basis for tolling or delayed accrual, Coleman
4 filed his Petition over 14 years after the AEDPA limitation period expired.2
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This Court instructed Coleman to show cause why his Petition should not be dismissed as

6 untimely. ECF No. 5. Coleman was warned that if he “fail[ed] to show with specific, detailed, and
7 competent evidence why the Petition should not be dismissed as untimely, the action will be
8 dismissed with prejudice.” Id. at 6. On May 24, 2024, Coleman filed a response, explaining that
9 he can show cause and prejudice to overcome any procedurally defaulted claims. ECF No. 6.
10 However, this Court did not order Coleman to show cause why this action should not be dismissed
11 as procedurally defaulted, so Coleman’s response is nonresponsive. Accordingly, because
12 Coleman (1) did not appropriately respond to the Order to Show Cause, (2) has not shown that his
13 Petition is not untimely, (3) has not shown that he is entitled to any tolling, and (4) does not seek
14 to avoid application of the limitations period based upon a claim of actual innocence, this Court
15 dismisses the Petition with prejudice. In light of this dismissal, the motion for appointment of
16 counsel is denied.
17 IV.

CONCLUSION

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IT IS THEREFORE ORDERED that the Petition is dismissed with prejudice as

19 untimely. A certificate of appealability is denied, as jurists of reason would not find dismissal of
20 the Petition for the reasons stated herein to be debatable or wrong.
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Although Coleman filed second, third, and fourth state habeas petitions on August 14, 2019,
April 5, 2023, and October 9, 2023, respectively, they were filed after the AEDPA clock had
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already expired. As such, Coleman’s second, third, and fourth state petitions could not have tolled
an already expired limitations period. See Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001).
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IT IS FURTHER ORDERED that the motion for appointment of counsel (ECF No. 1-2)

2 is denied.
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IT IS FURTHER ORDERED that the Clerk of Court (1) file the Petition (ECF No. 1-1),

4 (2) add Nevada Attorney General Aaron D. Ford as counsel for Respondents,3 (3) informally serve
5 the Nevada Attorney General with the Petition (ECF No. 1-1), this Order, and all other filings in
6 this matter by sending notices of electronic filing to the Nevada Attorney General’s office, (4)
7 enter final judgment, and (5) close this case.
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DATED: March 11, 2025.

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________________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT COURT

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No response is required from Respondents other than to respond to any orders of a reviewing
court.
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