Garcia-Gaona v. Wickham et al

Filing 15

ORDER granting Respondents' ECF No. 10 Motion to Dismiss the Petition as set forth in this order, dismissing with prejudice the petition; denying a certificate of appealability; directing Clerk to enter judgment accordingly and close case. Signed by Judge Miranda M. Du on 12/18/2018. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JOSE MANUEL GARCIA-GAONA,

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Petitioner,

ORDER

v.

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Case No. 3:17-cv-00360-MMD-WGC

HAROLD WICKHAM, et al.,
Respondents.

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This habeas matter under 28 U.S.C. § 2254 comes before the Court on

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Respondents’ motion to dismiss Petitioner Jose Manuel Garcia-Gaona’s pro se petition

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as untimely (ECF No. 10). Petitioner did not file an opposition or otherwise respond to the

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motion to dismiss. As discussed below, the Court will dismiss the petition as untimely.

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I.

BACKGROUND

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A jury convicted Garcia-Gaona of three counts of trafficking in a schedule 1

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controlled substance. (ECF Nos. 13-6, 13-7, 13-8 (Exhs. 77-79).) The state district court

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sentenced him to 10 to 25 years on count 1; 12 to 34 months on count 2; and 12 to 34

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months on count 3, all to run concurrently. (ECF No. 13-11 (Exh. 82).) Judgment of

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conviction was entered on May 7, 2013. (Id.)

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The Nevada Supreme Court affirmed the convictions on direct review, and the

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Nevada Court of Appeals affirmed the denial of Garcia-Gaona’s state postconviction

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habeas corpus petition. (ECF Nos. 13-33, 14-35 (Exhs. 104, 140).)

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Garcia-Gaona dispatched his federal habeas petition for mailing on or about May

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23, 2017. (ECF No. 7.) Respondents have moved to dismiss the petition as time-barred.

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(ECF No. 10.)

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II.

LEGAL STANDARD

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The Antiterrorism and Effective Death Penalty Act (“AEDPA”) went into effect on

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April 24, 1996 and imposes a one-year statute of limitations on the filing of federal habeas

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corpus petitions. See 28 U.S.C. § 2244(d). The one-year time limitation can run from the

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date on which a petitioner’s judgment became final by conclusion of direct review, or the

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expiration of the time for seeking direct review. See 28 U.S.C. § 2244(d)(1)(A). Further,

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a properly filed petition for state postconviction relief can toll the period of limitations. See

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28 U.S.C. § 2244(d)(2).

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A petitioner may be entitled to equitable tolling if he can show “‘(1) that he has

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been pursuing his right diligently, and that (2) some extraordinary circumstance stood in

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his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2009) (quoting

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prior authority). Equitable tolling is “unavailable in most cases,” Miles v. Prunty, 187 F.3d

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1104, 1107 (9th Cir. 1999), and “the threshold necessary to trigger equitable tolling is very

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high, lest the exceptions swallow the rule” Miranda v. Castro, 292 F.3d 1063, 1066 (9th

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Cir. 2002) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). The

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petitioner ultimately has the burden of proof on this “extraordinary exclusion.” 292 F.3d at

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1065. He accordingly must demonstrate a causal relationship between the extraordinary

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circumstance and the lateness of his filing. See, e.g., Spitsyn v. Moore, 345 F.3d 796,

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799 (9th Cir. 2003).

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Ignorance of the one-year statute of limitations does not constitute an extraordinary

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circumstance that prevents a prisoner from making a timely filing. See Rasberry v. Garcia,

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448 F.3d 1150, 1154 (9th Cir. 2006) (“a pro se petitioner’s lack of legal sophistication is

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not, by itself, an extraordinary circumstance warranting equitable tolling”).

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III.

DISCUSSION

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Here, Petitioner timely appealed his convictions. (ECF No. 13-12 (Exh. 83).) The

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Nevada Supreme Court affirmed the convictions on March 12, 2014, and remittitur issued

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on April 9, 2014. (ECF Nos. 13-33, 13-34 (Exhs. 104, 105).) He filed a state postconviction

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petition on April 18, 2014. (ECF No. 14-4 (Exh. 110).) The state district court denied the

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postconviction petition on the merits on April 17, 2015. (ECF No. 14-22 (Exh. 127).) On

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March 16, 2016, the Nevada Court of Appeals affirmed the denial of the postconviction

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petition, and remittitur issued on April 11, 2016. (ECF No. 14-36 (Exh. 141).)

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The one-year AEDPA limitation period began to run on April 12, 2016, and it

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expired on April 12, 2017. See 28 U.S.C. § 2244(d)(2); Carey v. Saffold, 536 U.S. 214,

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220 (2002). Petitioner dispatched his federal habeas petition for filing on or about May

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23, 2017. (ECF No. 7 at 1.) Thus, about 406 days of untolled time passed between the

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conclusion of Petitioner’s state-court proceedings and the date that he filed his federal

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habeas petition. The federal petition, therefore, is untimely. Petitioner has not opposed

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the motion to dismiss the petition as untimely or responded to the motion in any way.

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Accordingly, Respondents’ motion to dismiss the petition as time-barred is granted. This

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petition is dismissed with prejudice.

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IV.

CERTIFICATE OF APPEALABILITY

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This is a final order adverse to the Petitioner. As such, Rule 11 of the Rules

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Governing Section 2254 Cases requires this Court to issue or deny a certificate of

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appealability (“COA”). Accordingly, the court has sua sponte evaluated the claims within

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the petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v.

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Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002).

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Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner

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“has made a substantial showing of the denial of a constitutional right.” With respect to

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claims rejected on the merits, a Petitioner “must demonstrate that reasonable jurists

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would find the district court’s assessment of the constitutional claims debatable or wrong.”

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Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citation omitted). For procedural rulings, a

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COA will issue only if reasonable jurists could debate: (1) whether the petition states a

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valid claim of the denial of a constitutional right; and (2) whether the court’s procedural

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ruling was correct. See id.

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The Court finds that Petitioner cannot satisfy the Slack standard. The Court
therefore declines to issue a certificate of appealability.
V.

It is therefore ordered that Respondents’ motion to dismiss the petition (ECF No.

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CONCLUSION

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It is further ordered that a certificate of appealability is denied.

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It is further ordered that the Clerk shall enter judgment accordingly and close this

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case.

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DATED THIS 18th day of December 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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