Durand v. Drummond

2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 ROBERTO DURAND, Case No. 3:19-cv-00763-MMD-WGC

7 Petitioner, ORDER v. 8

9 DAVID DRUMMOND, et al.,

10 Respondents.

11

12 This action is a petition for a writ of habeas corpus under 28 U.S.C. § 2254 brought 13 by Roberto Durand, a Nevada prisoner. Durand initiated this action on December 26, 14 2019, by filing an application to proceed in forma pauperis (ECF No. 1), along with his 15 habeas corpus petition (attached to application to proceed in forma pauperis). 16 The financial information provided with Durand’s application to proceed in forma 17 pauperis indicates that he is unable to pay the filing fee for this action. Therefore, the in 18 forma pauperis application will be granted, and he will not be required to pay the filing fee. 19 Reviewing the petition under Rule 4 of the Rules Governing Section 2254 Cases, 20 the Court notes that it indicates December 19, 2011, as the date of Durand=s judgment of 21 conviction. The Court also takes judicial notice of the Nevada Supreme Court’s denial of 22 Durand’s direct appeal, which occurred on September 13, 2012. See Durand v. State, 381 23 P.3d 609 (Nev. 2012). Lastly, it does not appear that Durand properly filed a state post24 conviction proceeding after his conviction became final on December 12, 2012. See Eighth 25 Judicial District Court Portal, Case No. C-11-273021-1, 26 https://www.clarkcountycourts.us/portal (last visited Dec. 30, 2019). 27 Pursuant to Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001), the Court sua sponte 28 raises the question of whether the petition is time-barred for failure to file the petition within 2 the federal one-year limitation period, unless otherwise tolled or subject to delayed 3 accrual, begins running after “the date on which the judgment became final by the 4 conclusion of direct review or the expiration of the time for seeking such direct review.” 5 So, in the present case, the limitation period began running 90 days from the date the 6 Nevada Supreme Court decided Durand’s direct appeal, i.e., December 12, 2012. See 7 Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir.1999) (holding that, when no petition for 8 certiorari to the United States Supreme Court is filed, direct review is considered to be 9 final 90 days after the decision of the state's highest court). Absent tolling or delayed 10 accrual, the limitation period expired one year later on December 12, 2013. 11 Under 28 U.S.C. § 2244(d)(2), the federal limitation period is statutorily tolled during 12 the pendency of a properly filed application for state post-conviction relief or for other state 13 collateral review. However, if a state court determines the collateral challenge was not 14 timely filed under state law, the collateral challenge is not “properly filed” for purposes of 15 28 U.S.C. § 2244(d)(2). Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005). In other words, 16 “[w]hen a postconviction petition is untimely under state law, ‘that [is] the end of the matter’ 17 for purposes of § 2244(d)(2).” Id. at 414 (citation omitted). Also, once a state post18 conviction proceeding pursuant a properly filed application has concluded, the statutory 19 time period resumes running. 20 It appears that the federal limitation period for Durand expired more than six years 21 ago. Thus, before this action proceeds further, Durand must show cause in writing why 22 the petition should not be dismissed with prejudice as time-barred. 23 In this regard, Durand is informed that the one-year limitation period may be 24 equitably tolled. Equitable tolling is appropriate only if the petitioner can show: (1) that he 25 has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood 26 in his way and prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010). 27 Equitable tolling is “unavailable in most cases,” Miles v. Prunty, 187 F.3d 1104, 1107 (9th 28 Cir. 1999), and "the threshold necessary to trigger equitable tolling is very high, lest the 2 (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). The petitioner 3 ultimately has the burden of proof on this “extraordinary exclusion.” Miranda, 292 F.3d at 4 1065. He must demonstrate a causal relationship between the extraordinary circumstance 5 and the lateness of his filing. E.g., Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). 6 Accord Bryant v. Arizona Attorney General, 499 F.3d 1056, 1061 (9th Cir. 2007). 7 In addition, under certain circumstances, the one-year limitation period may begin 8 running on a later date or, as mentioned, may be statutorily tolled. See 28 U.S.C. § 9 2244(d)(1)(B-D) & (d)(2). Barring a preliminary demonstration by Durand that his petition 10 may be timely under the foregoing principals, this Court will dismiss the petition with 11 prejudice. McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) (“[D]ismissal of a first 12 habeas petition for untimeliness presents a ‘permanent and incurable’ bar to federal 13 review of the underlying claims.”). 14 It is therefore ordered that Petitioner’s application to proceed in forma pauperis 15 (ECF No. 1) is granted. Petitioner is granted leave to proceed in forma pauperis. Petitioner 16 will not be required to pay the filing fee for this action. 17 It is further ordered that the Clerk of the Court will separately file the petition for writ 18 of habeas corpus, which is currently attached to the in forma pauperis application at ECF 19 No. 1. 20 It is further ordered that the Clerk will add Aaron D. Ford, Attorney General of the 21 State of Nevada, as counsel for Respondents, and electronically serve a copy of the 22 petition and this order upon the Respondents. 23 It is further ordered that, within 30 days of entry of this order, Petitioner must show 24 cause in writing why the petition should not be dismissed with prejudice as time barred.1 25 If Petitioner does not timely respond to this order, the petition will be dismissed with 26 prejudice as time barred without further advance notice. If Petitioner responds but fails to 27

28 1This order does not explicitly or implicitly hold that the petition otherwise is free of deficiencies. 1 || show-with specific, detailed and competent evidence-that the petition is timely, the action 2 || will be dismissed with prejudice. 3 It is further ordered that all assertions of fact made by Petitioner in response to this 4 || show cause order must be detailed, must be specific as to time and place, and must be 5 || supported by competent evidence. The Court will not consider any assertions of fact that 6 || are not specific as to time and place, that are not made pursuant to a declaration under 7 || penalty of perjury based upon personal knowledge, and/or that are not supported by 8 || competent evidence filed by Petitioner in the federal record. Petitioner must attach copies 9 || of all materials upon which he bases his argument that the petition should not be dismissed 10 || as untimely. Unsupported assertions of fact will be disregarded. 11 It is further ordered that the Respondents’ counsel must enter a notice of 12 || appearance within 20 days of the entry of this order but need take no further action in the 13 || case unless and until the Court so orders. 14 DATED THIS 2" day of January 2020. 15 { ShL2Q_ 16 4 MIRANDA M. DU 17 CHIEF UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28

2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 ROBERTO DURAND, Case No. 3:19-cv-00763-MMD-WGC

7 Petitioner, ORDER v. 8

9 DAVID DRUMMOND, et al.,

10 Respondents.

11

12 On January 2, 2020, this Court entered an order directing Petitioner Roberto 13 Durand to show cause to why this federal habeas proceeding under 28 U.S.C. § 2254 14 should not be dismissed as untimely under 28 U.S.C. § 2244(d). (ECF No. 3.) The Court 15 noted that the Nevada Supreme Court denied Petitioner’s direct appeal in 2012 and that 16 it did not appear that Petitioner properly filed a state post-conviction proceeding after his 17 conviction became final on December 12, 2012. (Id.) In responding to the order to show 18 cause (ECF No. 7), Petitioner has failed to demonstrate that this proceeding was timely 19 filed. Accordingly, his habeas petition will be dismissed with prejudice. 20 With his response, Petitioner does not dispute that his one-year statutory period 21 commenced on December 12, 2012. He does not claim or provide any evidence that he 22 is entitled to statutory tolling under 28 U.S.C. § 2244(d)(2). Instead it appears as if he 23 claims he is entitled to statutory tolling due to circumstances that prevented his timely 24 filing. (ECF No. 7 at 2-3.) 25 Equitable tolling is appropriate only if the petitioner can show: (1) that he has been 26 pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his 27 way and prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010). Equitable 28 tolling is “unavailable in most cases,” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999), 2 swallow the rule,“ Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (quoting United 3 States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). The petitioner ultimately has the 4 burden of proof on this “extraordinary exclusion.” Miranda, 292 F.3d at 1065. He must 5 demonstrate a causal relationship between the extraordinary circumstance and the 6 lateness of his filing. E.g., Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003); accord 7 Bryant v. Arizona Attorney General, 499 F.3d 1056, 1061 (9th Cir. 2007). 8 Petitioner asserts that his efforts at properly seeking state court relief were thwarted 9 by his confinement in administrative segregation, his lack of legal knowledge, and his 10 inability to obtain legal assistance from an attorney or paralegals. As a Nevada prisoner 11 not sentenced to death, however, Petitioner has no constitutional or statutory right to 12 counsel for state post-conviction proceedings. See Brown v. McDaniel, 331 P.3d 867, 870 13 (Nev. 2014). Likewise, Petitioner’s ignorance of the law is not an “extraordinary 14 circumstance” that warrants equitable tolling. See Rasberry v. Garcia, 448 F.3d 1150, 15 1154 (9th Cir. 2006) (petitioner's ignorance of the law and inability to correctly calculate 16 the limitations period did not provide grounds for equitable tolling); Ford v. Pliler, 590 F.3d 17 782, 789 (9th Cir. 2009) (petitioner's confusion or ignorance of the law is not an 18 extraordinary circumstance for equitable tolling). Lastly, his alleged lack of access to legal 19 resources or assistance, while in lockdown or otherwise, does not qualify either. See 20 Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009) (holding that petitioner's stay in 21 administrative segregation with limited access to the law library and a copier did not justify 22 equitable tolling because it was neither “extraordinary” nor did it make it “impossible” for 23 him to file his petition in a timely manner); Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 24 2001) (rejecting argument that lack of access to library materials automatically qualifies 25 as grounds for equitable tolling); Jackson v. Del Papa, 91 F. App’x. 592, 593 (9th Cir. 26 2004) (citing Marsh v. Soares, 223 F.3d 1217, 1220-21 (10th Cir. 2000) (holding that 27 incompetence of an inmate law clerk did not create “extraordinary circumstances” 28 warranting equitable tolling)). 1 In the absence of a showing of statutory or equitable tolling, or the applicability of 2 || an alternative triggering date, the federal limitation period for Petitioner expired more than 3 || six years prior to the filing of this federal proceeding. 4 It is therefore ordered that the petition for writ of habeas corpus (ECF No. 4) is 5 || dismissed with prejudice as untimely. 6 It is further ordered that a certificate of appealability is denied, as jurists of reason 7 || would not find the Court’s dismissal to be debatable or incorrect. 8 It is further ordered that Petitioner's motion for appointment counsel (ECF No. 6) 9 || and motion for entry of default (ECF No. 8) are denied as moot. 10 The Clerk of the Court is directed to enter judgment accordingly and close this case. 11 DATED THIS 12” day of May 2020.

13 _ MIRANDA M. DU 14 CHIEF UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1

2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 ROBERTO DURAND, Case No. 3:19-cv-00763-MMD-WGC

7 Petitioner, ORDER v. 8 DAVID DRUMMOND, et al., 9 Respondents. 10 11 On May 12, 2020, this Court entered an order and judgment dismissing Petitioner 12 Roberto Durand’s habeas petition as untimely under 28 U.S.C. § 2244(d). (ECF Nos. 10, 13 11.) A year and a half later, Durand filed a notice of appeal. (ECF No. 14.) The Ninth 14 Circuit Court of Appeals dismissed the appeal for lack of jurisdiction because it “was not 15 filed or delivered to prison officials within 30 days after the district court’s judgment 16 entered on May 12, 2020.” (ECF No. 17 (citing U.S.C. § 2107(a)); United States v. Sadler, 17 480 F.3d 932, 937 (9th Cir. 2007).) 18 Notwithstanding the entry of judgment against him and the dismissal of his appeal, 19 Durand continues to file documents in this proceeding with the apparent misapprehension 20 that either this Court or the Court of Appeals is still entertaining briefs from the parties. 21 (ECF Nos. 20, 21, 22.) That is not the case. In addition, the time permitted to file a motion 22 to set aside the judgment has elapsed unless Durand can demonstrate extraordinary 23 circumstances warranting relief. See Fed R. Civ. P. 60; see also Gonzalez v. Crosby, 545 24 U.S. 524, 535 (2005) (“[O]ur cases have required a movant seeking relief under Rule 25 60(b)(6) to show “extraordinary circumstances” justifying the reopening of a final 26 judgment.”). 27 /// 28 /// 1 It is therefore ordered that Durand’s pending motions (ECF Nos. 20, 21, 22) are 2 || denied as moot. 3 DATED THIS 11* Day of March 2022. 4 {Gn 5 MIRANDA 6 CHIEF 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