Cedeno v. Filson et al

Filing 6

ORDER that the Clerk is directed to file the Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254; petitioner shall have until 09/13/2017 to show cause why the Court should not dismiss this action as untimely; the Clerk is d irected to add AG as counsel for respondents and serve respondents with order and the Petition for a Writ of Habeas Corpus (e-served on 08/14/2017); respondents counsel shall enter a notice of appearance by 09/03/2017, but no further response shall be required from respondents until further order of the Court. (copy of Petition sent to P). Signed by Judge Larry R. Hicks on 08/14/2017. (Copies have been distributed pursuant to the NEF - KW)

1
2
3
4
5

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

6
7
8
9

DEVIN CEDENO,

10

Petitioner,

11

vs.

12

WARDEN FILSON, et al.,

13

Case No. 3:17-cv-00036-LRH-VPC

Respondents.

ORDER

14
15

Petitioner has paid the filing fee. The court has reviewed the petition for a writ of habeas

16

corpus under Rule 4 of the Rules Governing Section 2254 Cases in the United States District

17

Courts. Petitioner needs to show cause why the court should not dismiss the action as untimely.

18

Congress has limited the time in which a person can petition for a writ of habeas corpus

19
20
21
22
23
24
25
26

pursuant to 28 U.S.C. § 2254:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court. The limitation period shall run
from the latest of—
(A) the date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in
violation of the Constitution or laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the
Supreme Court, if the right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been
discovered through the exercise of due diligence.

27

28 U.S.C. § 2244(d)(1). If the judgment of conviction is not appealed, then it becomes final thirty

28

days after entry, when the time to appeal to the Nevada Supreme Court has expired. See Gonzalez

1

v. Thaler, 132 S. Ct. 641, 653-54 (2012). See also Nev. R. App. P. 4(b), 26(a). Any time spent

2

pursuing a properly filed application for state post-conviction review or other collateral review does

3

not count toward this one-year limitation period. 28 U.S.C. § 2244(d)(2). The period of limitation

4

resumes when the post-conviction judgment becomes final upon issuance of the remittitur.

5

Jefferson v. Budge, 419 F.3d 1013, 1015 n.2 (9th Cir. 2005). An untimely state post-conviction

6

petition is not “properly filed” and does not toll the period of limitation. Pace v. DiGuglielmo, 544

7

U.S. 408, 417 (2005).

8
9

Section 2244(d) is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645
(2010). “[A] ‘petitioner’ is ‘entitled to equitable tolling’ only if he shows ‘(1) that he has been

10

pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and

11

prevented timely filing.” Id. at 649 (quoting Pace, 544 U.S. at 418).

12

The petitioner effectively files a federal petition when he delivers it to prison officials to be

13

forwarded to the clerk of the court. Rule 3(d), Rules Governing Section 2254 Cases in the United

14

States District Courts.

15
16

The court can raise the issue of timeliness on its own motion. Day v. McDonough, 547 U.S.
198, 209 (2006); Herbst v. Cook, 260 F.3d 1039, 1043 (9th Cir. 2001).

17

In state district court, petitioner pleaded guilty to burglary while in possession of a deadly

18

weapon, robbery with the use of a deadly weapon, and burglary. The state district court entered its

19

judgment on January 5, 2015. State v. Cedeno, No. C-14-301814-1.1 Petitioner did not appeal. The

20

judgment of conviction became final at the end of February 4, 2015, when the time to appeal

21

expired. Petitioner filed a post-conviction habeas corpus petition in the state district court on March

22

10, 2016. The state district court denied the petition because petitioner filed it more than a year

23

///

24

///

25
26
27
28

1

https://www.clarkcountycourts.us/Portal/Home/Dashboard/29 (report generated August 11,
2017). The on-line docket report indicates that petitioner was convicted of nine counts of burglary
while in possession of a deadly weapon and one count of robbery with the use of a deadly weapon.
The difference between petitioner’s allegations and the on-line docket report is not material to the
issue of timeliness.
-2-

1

after entry of the judgment of conviction. See Nev. Rev. Stat. § 34.726(1). Petitioner appealed, and

2

the Nevada Court of Appeals affirmed. Cedeno v. State, No. 70482.2

3

Petitioner then commenced this action. He does not state when he delivered the petition to

4

prison officials for mailing to this court. He dated the petition January 4, 2016, but he must have

5

intended the year to be 2017, because he refers to matters that occurred after January 4, 2016. He

6

signed and dated the declaration under penalty of perjury on January 6, 2017. The court received

7

the petition on January 20, 2017. Ultimately, it does not matter when he mailed the petition.

8
9

On its face, the petition is untimely. Petitioner had nothing pending in state court for the
year after the judgment of conviction became final. The federal one-year period expired at the end

10

of February 4, 2016. The state post-conviction habeas corpus petition, filed on March 10, 2016,

11

does not toll the federal one-year period for two reasons. First, the federal one-year period already

12

had expired, and no time remained to be tolled. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.

13

2003). Second, the state petition was untimely and thus ineligible for tolling. Pace, 544 U.S. at

14

417. Petitioner will need to show cause why the court should not dismiss this action as untimely.

15
16

IT IS THEREFORE ORDERED that the clerk of the court shall file the petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254.

17

IT IS FURTHER ORDERED that petitioner shall have thirty (30) days from the date of entry

18

of this order to show cause why the court should not dismiss this action as untimely. Failure to

19

comply with this order will result in the dismissal of this action.

20

IT IS FURTHER ORDERED that the clerk shall add Adam Paul Laxalt, Attorney General

21

for the State of Nevada, as counsel for respondents.

22

///

23

///

24

///

25

///

26
27
2

28

http://nvcourts.gov/COAPortal/caseView.aspx?csiid=38698 (report generated August 11,

2017).
-3-

1

IT IS FURTHER ORDERED that the clerk shall electronically serve upon respondents a

2

copy of the petition and this order. Respondents’ counsel shall enter a notice of appearance herein

3

within twenty (20) days of entry of this order, but no further response shall be required from

4

respondents until further order of the court.

5

DATED this 14th day of August, 2017.

6
7

_________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-4-