Mosby v. Baker et al

Filing 35

ORDERED that respondents' motion to dismiss (ECF No. 28 ) the petition is granted. The petition is dismissed as time-barred. Respondents' motion for leave to file exhibit under seal (ECF No. 30 ) is granted. Petitioner's motion for extension of time to file an opposition to the motion to dismiss (ECF No. 32 ) is granted nunc pro tunc. A certificate of appealability is denied. The Clerk enter judgment accordingly and close this case. Signed by Judge Miranda M. Du on 7/26/2017. (Copies have been distributed pursuant to the NEF - DRM)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 MARVIN MOSBY, 10 Case No. 3:14-cv-00251-MMD-WGC Petitioner, ORDER v. 11 RENEE BAKER, et al., 12 Respondents. 13 14 15 This habeas matter under 28 U.S.C. § 2254 comes before the Court on 16 respondents’ motion to dismiss petitioner Marvin Mosby’s counseled, first-amended 17 petition as untimely. (ECF No. 28.) Mosby opposed (ECF No. 33), and respondents 18 replied (ECF No. 34). As discussed below, respondent’s motion will be granted. 19 I. BACKGROUND 20 On May 26, 2011, a jury convicted Mosby of count 1: larceny from the person, and 21 count 2: grand larceny. (Exh. 50.)1 Noting that the state had introduced evidence of 12 22 prior felonies, including two convictions for ex-felon in possession of a firearm, the state 23 district court adjudicated him a large habitual criminal and sentenced him to life without 24 the possibility of parole. (Exh. 52.) Mosby filed a motion for reconsideration. (Exh. 53.) 25 The state district court conducted a hearing and denied the motion. (Exhs. 55, 56.) 26 Judgment of conviction was filed on November 15, 2011. (Exh. 3.) 27 referenced in this order are exhibits to petitioner’s motion to stay and abey (ECF No.14) and first-amended petition (ECF No. 24) and are found at ECF Nos. 15, 25-26. 28 1Exhibits 1 On November 15, 2012, the Nevada Supreme Court affirmed the conviction as to 2 count 1 and reversed and remanded as to count 2. (Exh. 5.) Remittitur issued on 3 December 12, 2012. (Exh. 5a.) The amended judgment of conviction was filed on January 4 30, 2013; count 2 was dismissed and the sentence on count 1 remained the same. (Exh. 5 6.) 6 On April 3, 2014, Mosby filed what he called a supplemental petition for writ of 7 habeas corpus. (Exh. 19.) He styled it as a supplement, but as no state postconviction 8 petition had been filed, the state district court dismissed it as time-barred. (Exh. 63.) 9 Petitioner represented in a motion for leave to file the supplement that he had in fact 10 submitted a state postconviction petition on September 3, 2013. (See Exh. 25.) Ultimately, 11 the Nevada Supreme Court reversed and remanded to the state district court for an 12 evidentiary hearing as to whether a timely state postconviction petition had been filed. 13 (Exh. 25.) The state district court conducted an evidentiary hearing, denied the petition, 14 and the Nevada Court of Appeals affirmed. (Exhs. 26, 27, 33.) Remittitur issued on May 15 18, 2016. (Exh. 64.) 16 Meanwhile, Mosby dispatched his federal habeas petition for mailing on May 12, 17 2014. (ECF No. 1.) This Court appointed counsel, and petitioner filed a counseled motion 18 for stay and abeyance. (ECF Nos. 14, 15.) This Court granted the motion. (ECF No. 17.) 19 On July 26, 2016, this Court granted Mosby’s motion to reopen the case, and he filed a 20 counseled, first-amended petition on December 15, 2016. (ECF No. 24.) Respondents 21 have moved to dismiss the petition as time-barred. (ECF No. 28.) 22 II. LEGAL STANDARDS & ANALYSIS 23 The Antiterrorism and Effective Death Penalty Act (AEDPA) went into effect on 24 April 24, 1996, and imposes a one-year statute of limitations on the filing of federal habeas 25 corpus petitions. 28 U.S.C. § 2244(d). The one-year time limitation can run from the date 26 on which a petitioner’s judgment became final by conclusion of direct review, or the 27 expiration of the time for seeking direct review. 28 U.S.C. § 2244(d)(1)(A). The time 28 limitation can also run from the date on which the factual predicate of the claim or claims 2 1 presented could have been discovered through the exercise of due diligence. 28 U.S.C. 2 § 2244(d)(1)(D). Further, a properly filed petition for state postconviction relief can toll the 3 period of limitations. 28 U.S.C. § 2244(d)(2). 4 Here, the state district court filed Mosby’s amended judgment of conviction on 5 January 30, 2013. (Exh. 6.) Mosby did not file an appeal, and therefore, his conviction 6 became final thirty days after the judgment of conviction was filed—March 1, 2013. 7 Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). Accordingly, the AEDPA one-year statute 8 of limitations began to run from that date. The parties do not dispute that the limitations 9 period had already expired when Mosby filed his state postconviction petition April 3, 10 2014, and had already expired when he filed his original federal petition in this action on 11 May 12, 2014. However, Mosby insists he is entitled to equitable tolling. 12 A petitioner may be entitled to equitable tolling if he can show “‘(1) that he has 13 been pursuing his right diligently, and that (2) some extraordinary circumstance stood in 14 his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2009) (quoting 15 prior authority). Equitable tolling is “unavailable in most cases,” Miles v. Prunty, 187 F.3d 16 1104, 1107 (9th Cir. 1999), and “the threshold necessary to trigger equitable tolling is very 17 high, lest the exceptions swallow the rule,” Miranda v. Castro, 292 F.3d 1063, 1066 (9th 18 Cir. 2002) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). The 19 petitioner ultimately has the burden of proof on this “extraordinary exclusion.” Castro, 20 292 F.3d at 1065. Petitioner accordingly must demonstrate a causal relationship between 21 the extraordinary circumstance and the lateness of petitioner’s filing. E.g., Spitsyn v. 22 Moore, 345 F.3d 796, 799 (9th Cir. 2003). Moreover, ignorance of the one-year statute of 23 limitations does not constitute an extraordinary circumstance that prevents a prisoner 24 from making a timely filing. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) 25 (“a pro se petitioner’s lack of legal sophistication is not, by itself, an extraordinary 26 circumstance warranting equitable tolling”). 27 Mosby contends that he is entitled to equitable tolling in this federal habeas 28 because he had previously attempted to initiate a federal habeas action in this Court. 3 1 (ECF No. 33.) On September 3, 2013, the Court received an application to proceed in 2 forma pauperis and a habeas petition. (See Mosby v. Baker, case no. 2:13-cv-01609- 3 APG-VCF (“Mosby I” (ECF No. 1).) On October 15, 2013, the Court issued an order 4 stating that the IFP application was incomplete and that the petition was on a state-court 5 form, not on the form required by this Court, and the petition did not substantially conform 6 to the form required by this Court. (Mosby I (ECF No. 2).) The Court denied the IFP 7 application without prejudice, directed the Clerk of Court to send Mosby two copies each 8 of the application form to proceed in forma pauperis for incarcerated persons and a 9 noncapital Section 2254 habeas petition form, one copy of the instructions for each form, 10 and a copy of the papers he submitted. (Id.) The Court ordered Mosby to submit an 11 amended IFP application and an amended petition within thirty days. (Id.) The Court 12 expressly advised that if Mosby did not file an amended petition the action would be 13 dismissed. (Id.) Mosby sought an extension of time to comply with the Court’s order, 14 which this Court granted on November 7, 2013. (Mosby I (ECF Nos. 3, 5).) Mosby filed 15 an inmate trust account statement in support of his IFP application. (Mosby I (ECF No. 16 6).) However, he failed to file an amended petition, in contravention to the Court’s orders 17 dated October 15, 2013, and November 7, 2013. (Mosby I (see ECF Nos. 6, 7).) 18 Accordingly, this Court dismissed that habeas action without prejudice on February 6, 19 2014, and judgment was entered. (2:13-cv-01609-APG-VCF (ECF Nos. 7,8).)2 20 Mosby now argues that he is entitled to equitable tolling of this current federal 21 habeas petition back to the date that he had attempted to initiate the first federal habeas 22 action. This argument is unavailing. Mosby has not demonstrated that the Mosby I was 23 improperly dismissed; Mosby failed to comply with the Court rules and failed to comply 24 with two separate Court orders to file an amended petition, and the Court dismissed the 25 first habeas action on those bases. See James v. Giles, 221 F.3d 1074, 1077 (9th Cir. 26 /// 27 28 2 Mosby also attempted to file a second federal habeas petition on March 28, 2014. (Mosby v. Baker, case no. 3:14-cv-00171-MMD-VPC (Mosby II.) On April 14, 2014, the Court dismissed the action without prejudice for failure to file an IFP application or pay the filing fee, and judgment was entered. (Mosby II (ECF Nos. 3, 4).) 4 1 2000) (pro se habeas litigants are entitled to a “statement of the grounds for dismissal 2 and an opportunity to amend the complaint to overcome the deficiency unless it clearly 3 appears from the complaint that the deficiency cannot be overcome”). The Court further 4 notes that in Mosby I, Mosby’s motion for extension of time indicated that he understood 5 that he needed to amend his IFP application and petition. (Mosby I (ECF Nos. 3).) Mosby 6 simply has not shown that extraordinary circumstances prevented him from timely filing 7 this current action. Accordingly, the petition will be dismissed with prejudice as time- 8 barred. 9 III. CERTIFICATE OF APPEALABILITY 10 This is a final order adverse to the petitioner. As such, Rule 11 of the Rules 11 Governing Section 2254 Cases requires this Court to issue or deny a certificate of 12 appealability (COA). Accordingly, the Court has sua sponte evaluated the claims within 13 the petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. 14 Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002). 15 Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner 16 “has made a substantial showing of the denial of a constitutional right.” With respect to 17 claims rejected on the merits, a petitioner “must demonstrate that reasonable jurists would 18 find the district court’s assessment of the constitutional claims debatable or wrong.” Slack 19 v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 20 (1983)). For procedural rulings, a COA will issue only if reasonable jurists could debate 21 (1) whether the petition states a valid claim of the denial of a constitutional right and (2) 22 whether the court's procedural ruling was correct. Id. 23 Having reviewed its determinations with respect to Mosby’s petition, the Court finds 24 that none of those rulings meets the Slack standard. The Court therefore declines to issue 25 a certificate of appealability for its dismissal of Mosby’s petition. 26 IV. 27 28 CONCLUSION It is therefore ordered that respondents’ motion to dismiss (ECF No. 28) the petition is granted. The petition is dismissed as time-barred. 5 1 2 3 4 It is further ordered that respondents’ motion for leave to file exhibit under seal (ECF No. 30) is granted. It is further ordered that petitioner’s motion for extension of time to file an opposition to the motion to dismiss (ECF No. 32) is granted nunc pro tunc. 5 It is further ordered that a certificate of appealability is denied. 6 It is further ordered that the Clerk enter judgment accordingly and close this case. 7 DATED THIS 26th day of July 2017. 8 9 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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