Voss v. Baca et al

Filing 31

ORDER denying ECF No 28 Petitioner's Motion for Reconsideration of ECF No. 26 Order. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Signed by Judge Howard D. McKibben on 10/28/2016. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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STEVEN FLOYD VOSS,

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Petitioner,

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vs.

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Case No. 3:15-cv-00183-HDM-VPC

ISIDRO BACA, et al.,

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ORDER

Respondents.

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The court dismissed this action because it was untimely. Order (ECF No. 26). Before the

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court are petitioner’s motion for reconsideration (ECF No. 28), respondents’ opposition (ECF No.

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29), and petitioner’s reply (ECF No. 30). The court is not persuaded, and the court denies

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petitioner’s motion.

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Petitioner first argues that the court failed to toll the period of limitations pursuant to 28

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U.S.C. § 2244(d)(2) during the time that a post-conviction habeas corpus petition was pending in

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state court, from May 1, 2013, through September 11, 2015. Petitioner is wrong. The state district

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court unequivocally held that that petition was untimely under Nev. Rev. Stat. § 34.726(1).

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Petitioner’s Ex. 32 (ECF No. 28, at 44). The Nevada Court of Appeals affirmed for the same

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reason. Petitioner’s Ex. 68 (ECF No. 28, at 107). “When a postconviction petition is untimely

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

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DiGuglielmo, 544 U.S. 408, 414 (2005) (quoting Carey v. Saffold, 536 U.S. 214, 226 (2002)).

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Second, with regard to the court’s note on ground 2, petitioner argues that he has not

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received the relief that was ordered in state court case CR96-1581. Petitioner is not challenging the

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validity of that judgment of conviction in this case. He is challenging the validity of the judgment

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of conviction in state court case 97-2077. If he did not receive the relief ordered in CR96-1581,

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then he needs to file the appropriate motion in that action.

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Petitioner does not address the court’s primary ruling that equitable tolling was not

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warranted with respect to ground 2 because petitioner had not demonstrated any extraordinary

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circumstances that kept him from filing a timely petition.

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Third, petitioner argues that the court should have considered whether actual innocence

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allows him to bypass the time bar of § 2244(d). Petitioner made no such argument in opposition to

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the motion to dismiss, and he cannot now raise a new argument in a motion for reconsideration.

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The court is not petitioner’s attorney. It was petitioner’s obligation, not the court’s obligation, to

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demonstrate actual innocence.

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Fourth, Petitioner argues that the court failed to rule upon his motion for a stay and abeyance

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in Voss v. Cox, case number 3:11-cv-00223-LRH-WGC (“Voss I”). Petitioner did not file a motion

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for stay and abeyance in Voss I. Petitioner filed a motion for relief from judgment, and he attached

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to that motion a proposed motion for stay and abeyance. In Voss I’s motion for relief from

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judgment, he argued that the court failed to advise him about his choices regarding the unexhausted

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grounds, which the court rejected because the court is under no obligation to so advise petitioner.

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To the extent that petitioner repeats the arguments that the court rejected in Voss I, the court rejects

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them now for the same reason. The motion for stay and abeyance never was filed because the court

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denied petitioner relief from the judgment in Voss I.

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Reasonable jurists would not find the court’s conclusions to be debatable or wrong, and the
court will not issue a certificate of appealability.

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IT IS THEREFORE ORDERED that petitioner’s motion for reconsideration (ECF No. 28) is

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DENIED.

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IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

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DATED: October 28, 2016.

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_________________________________
HOWARD D. MCKIBBEN
United States District Judge

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