Hill v. Palmer et al

Filing 62

ORDERED that P's # 61 Motion for an extension of time is GRANTED to the extent, and only to the extent, that P shall have until 2/26/2013, to respond to the prior order and show cause why the petition should not be dismissed as untimely. FURTH ER ORD Rs shall have 30 days from service of the show-cause response to file a reply. FURTHER ORD the hard copy of the exhibits shall be forwarded to the staff attorneys in Las Vegas rather than Reno after the date of this order. Signed by Judge Larry R. Hicks on 11/29/2012. (Copies have been distributed pursuant to the NEF - DRM)

1
2
3
4
5

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

6
7
8

CHARLES H. HILL,

9
Petitioner,
10

3:11-cv-00048-LRH-VPC

vs.

11
12

JACK PALMER, et al.,

ORDER

Respondents.

13
14
15

This represented habeas matter comes before the Court on petitioner’s motion (#61) for an

16

extension of time to respond to the Court’s show-cause order directed to the untimeliness of the federal

17

petition.

18
19
20
21

The Court will grant the requested extension to respond to the show-cause order, subject to the
caveats below.
First, the additional state court record materials referenced in the extension motion do not
appear to necessarily bear directly on the likely issues on the timeliness inquiry.

22

The record reflects that petitioner Charles Hill was convicted, pursuant to a guilty plea, of first

23

degree murder on June 19, 1985, and petitioner did not file a direct appeal. Absent tolling or delayed

24

accrual, the federal one-year limitation began running after the AEDPA became effective on April 24,

25

1996. Accordingly, absent a timely state collateral challenge having been pending within the following

26

year or some basis for equitable tolling or delayed accrual having existed within that year, the federal

27

limitation period expired on April 24, 1997. Absent such tolling or delayed accrual, the action therefore

28

became untimely more than thirteen years before the constructive filing of the federal petition.

1

To the extent that petitioner relies on an alleged mental health condition as a basis for equitable

2

tolling, he must show that the mental health condition stood in the way of and prevented a timely filing

3

within that one year period from April 24, 1996, through April 24, 1997, and substantially continuously

4

thereafter for the following thirteen plus years. In this regard, he must make the particularized showing

5

outlined in Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010).

6

State court records from time periods a decade or more before and a decade or more after the

7

key period in question, perhaps, may shed some indirect light on petitioner’s mental health condition

8

during and after the key period. However, it would appear that the resolution of a claim of equitable

9

tolling based on an alleged mental health condition instead would turn more directly upon competent

10

medical evidence directed to petitioner’s mental health status in and after the key period.

11

In this regard, petitioner must present competent evidence of specific facts supporting the claim

12

of equitable tolling with the show-cause response. While the Court potentially may hold an evidentiary

13

hearing to resolve factual issues raised by the show-cause response, the response must present in the

14

first instance competent evidence of specific facts that would establish a viable basis for equitable

15

tolling. In other words, argument in the show-cause response based upon an alleged mental health

16

condition that is made without specific supporting medical evidence submitted with the response will

17

not avoid dismissal of the petition for untimeliness.

18

State court records also will have only tangential relevance if petitioner seeks to avoid the

19

federal time bar based upon a claim of actual innocence. In this regard, petitioner will need to present

20

new and reliable evidence – as to a conviction entered on a guilty plea – that shows that it is more likely

21

than not that no reasonable juror would have convicted him in the light of the new evidence. See,e.g.,

22

Lee v. Lampert, 653 F.3d 929, 937-39 (9th Cir. 2011)(en banc).1

23

Any such alleged evidence of actual innocence, similarly, must be presented via competent

24

evidence of specific facts submitted with the show-cause response. The Court will not schedule an

25

evidentiary hearing or decline to enter a dismissal for untimeliness based upon unsupported argument.

26
27
28

1

The United States Supreme Court recently granted a petition for a writ of certiorari rais ing the ques tion of
whether the one-year time bar may be avoided on a s howing of actual innocence. See McQuiggen v. Perk ins, ___ S.Ct.
___, 2012 W L 3061886 (Oct. 29, 2012).

-2-

1

The Court emphasizes these points in order to put petitioner’s counsel on notice that it will look

2

with disfavor on any following motion for an extension of time based upon a need to pursue a more

3

pointed and particularized factual inquiry along these lines after counsel has reviewed what in truth

4

likely are tangential state court record materials.

5

relevant to those inquiries are and have been clear in this case. By the end of the extension allowed by

6

this order, counsel will have had six months to investigate the issues and prepare a show-cause

7

response, which should be an adequate interval.

The operative factual inquiries and the materials

8

Second, the Court will not grant petitioner what in effect would be a surreply to respondents’

9

reply to his response to the show-cause order. In this context, petitioner’s response to the show- cause

10

order is analogous to an opposition to a motion to dismiss. Petitioner must present all argument, and

11

submit all supporting evidence, with the response to the show-cause order.

12

IT THEREFORE IS ORDERED that petitioner’s motion (#61) for an extension of time is

13

GRANTED to the extent, and only to the extent, that petitioner shall have until February 26, 2013, to

14

respond to the prior order and show cause why the petition should not be dismissed as untimely. All

15

assertions of fact made by petitioner in response to the show cause order must be detailed, must be

16

specific as to time and place, and must be supported by competent evidence. The Court will not

17

consider any assertions of fact that are not specific as to time and place, that are not made pursuant to

18

an affidavit or declaration under penalty of perjury based upon personal knowledge, and/or that are not

19

supported by competent evidence filed by petitioner in the federal record.

20

IT FURTHER IS ORDERED that respondents shall have thirty (30) days from service of the

21

show-cause response to file a reply to the response. No further filings will be considered on the show-

22

cause inquiry without leave of court first obtained.

23

IT FURTHER IS ORDERED, following upon recent staffing changes, that, for any exhibits filed

24

after the date of this order, the hard copy of the e xhibits shall be forwarded to the staff attorneys

25

in Las Vegas rather than Reno.

26

DATED this 29th day of November, 2012.

27
___________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

28

-3-