Edwards v. Wolfson et al

Filing 21

ORDER that petitioner's objections (ECF No. 12 ) are DENIED; petitioner's request for docket sheet and for subpoenas (ECF No. 13 ) is GRANTED in part; Clerk directed to send petitioner a copy of the docket sheet (mailed to P at ESP on 9/25/2018); In all other respects, the request (ECF No. 13 ) is DENIED; petitioner's request for federal subpoenas (ECF No. 14 ) is DENIED; petitioner's request for appointment of counsel (ECF No. 15 ) is DENIED; this action is DISMISSED with prejudice because it is untimely; Clerk directed to enter judgment and close this action; a certificate of appealability will not issue. Signed by Judge Larry R. Hicks on 9/24/2018. (Copies have been distributed pursuant to the NEF - LH)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8
9

CARL DEAN EDWARDS,

10

Petitioner,

11
12

Case No. 3:17-cv-00148-LRH-WGC
ORDER

v.
WARDEN FILSON, et al.,

13

Respondents.

14
Earlier, the court told petitioner that it would consider only one of the two petitions for

15
16

writs of habeas corpus that he filed, because petitioner was trying to challenge two judgments of

17

convictions from two different state courts. ECF No. 11, at 1. The court also directed petitioner

18

to show cause why the court should not dismiss the action as untimely. Id. at 2-4. Petitioner has

19

responded with objections (ECF No. 12). Petitioner does not persuade the court, and the court

20

dismisses the action.
The court takes petitioner’s arguments out of the order in which he presented them. First,

21
22

petitioner objects to the court’s severing his challenges to the two judgments of convictions of

23

two different state courts. As the court explained in its order of August 25, 2017, Rule 2(e) of the

24

Rules Governing Section 2254 Cases in the United States District Courts requires this. ECF No.

25

6, at 1.

26

Second, petitioner argues that he never received transcripts of his trial because of

27

ineffective assistance of counsel. This appears to be an argument for equitable tolling. “[A]

28

‘petitioner’ is ‘entitled to equitable tolling’ only if he shows ‘(1) that he has been pursuing his
1

1

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

2

timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544

3

U.S. 408, 418 (2005)). The lack of transcripts was not an extraordinary circumstance that

4

prevented timely filing. Petitioner was litigating his issues in state court, and nothing appears to

5

have stopped him from filing a petition based upon his recollection in federal court before the

6

date of actual filing. Instead, he waited almost a year after the end of the last state-court petition

7

before filing his federal petition.1 Petitioner has not shown the diligence necessary for equitable

8

tolling.

9

Third, petitioner argues that he is actually innocent. More accurately, he has titled a

10

section of his objections as a claim of actual innocence. The section itself contains only

11

arguments of procedural irregularities in the various post-conviction motions that petitioner filed

12

in state court. His arguments are not new evidence that, along with the other evidence, would

13

lead no juror to find him guilty beyond a reasonable doubt. See McQuiggin v. Perkins, 569 U.S.

14

383, 386 (2013).

15

Fourth, petitioner argues that the prosecution sought an enhancement for a first-time

16

offense of stalking, Nev. Rev. Stat. § 200.575. Fifth, petitioner argues that the trial court erred by

17

not ordering petitioner’s trial counsel to provide mitigating evidence at sentencing. Sixth,

18

petitioner argues that the prosecution committed misconduct in charging him. Seventh, petitioner

19

argues that he is not receiving credits toward an earlier parole date. These are questions of the

20

merits, and they have no bearing on the timeliness of the action.
Reasonable jurists would not find the court’s conclusion to be debatable or wrong, and the

21
22

court will not issue a certificate of appealability.

23

Petitioner has filed a request for docket sheet and for subpoenas (ECF No. 13), another,

24

separate request for federal subpoenas (ECF No. 14), and a request for appointment of counsel

25

(ECF No. 15). The court will send petitioner a copy of the docket sheet. The court denies

26

petitioner’s other requests because the court is dismissing this action.

27
1

28

That time, the time between the finality of his judgment of conviction and the filing of a motion to modify his
sentence, and the time between two state-court motions, make the current action untimely. ECF No. 11, at 3-4.

2

1

IT THEREFORE IS ORDERED that petitioner’s objections (ECF No. 12) are DENIED.

2

IT FURTHER IS ORDERED that petitioner’s request for docket sheet and for subpoenas

3

(ECF No. 13) is GRANTED in part. The clerk of the court shall send petitioner a copy of the

4

docket sheet. In all other respects, the request (ECF No. 13) is DENIED.

5
6
7
8
9
10

IT FURTHER IS ORDERED that petitioner’s request for federal subpoenas (ECF No. 14)
is DENIED.
IT FURTHER IS ORDERED that petitioner’s request for appointment of counsel is
DENIED.
IT FURTHER IS ORDERED that this action is DISMISSED with prejudice because it is
untimely. The clerk of the court shall enter judgment accordingly and close this action.

11

IT FURTHER IS ORDERED that a certificate of appealability will not issue.

12

DATED this 24th day of September, 2018.

13
______________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3