Opinion
Case No. 2:19-cv-00441-APG-BNW
09-09-2019
Ubaldo Saldana-Garcia, Petitioner, v. Brian Williams, et al., Respondents
Rene L. Valladares Federal Public Defender Nevada State Bar No. 11479 *S. Alex Spelman Assistant Federal Public Defender Nevada Bar No. 14278 411 E. Bonneville Ave., Ste. 250 Las Vegas, Nevada 89101 (702) 388-6577 Alex_Spelman@fd.org *Attorney for Petitioner Ubaldo Saldana-Garcia
Rene L. Valladares
Federal Public Defender
Nevada State Bar No. 11479
*S. Alex Spelman
Assistant Federal Public Defender
Nevada Bar No. 14278
411 E. Bonneville Ave., Ste. 250
Las Vegas, Nevada 89101
(702) 388-6577
Alex_Spelman@fd.org *Attorney for Petitioner Ubaldo Saldana-Garcia
Unopposed motion to extend deadline to file amended petition
Saldana-Garcia respectfully requests an extension of 52 days, up to and including October 31, 2019, to file his amended petition. This is his first request for an extension. This deadline reflects the statute-of-limitations deadline in this case, and thus, this extension would allow Saldana-Garcia to enjoy the full year Congress has afforded him to prepare and file a habeas corpus petition for federal relief. Respondents do not oppose, though the parties agree that their waiver does not constitute tacit agreement with any of the foregoing, nor should it be construed as a waiver of any procedural defenses.
POINTS AND AUTHORITIES
Saldana-Garcia seeks federal habeas relief from this Court. This Court appointed counsel and set a deadline of September 9, 2019 for counsel to file an amended petition on Saldana-Garcia's behalf. This is his first request for an extension and respondents do not oppose.
ECF No. 4.
ECF No. 6.
ECF No. 9.
Saldana-Garcia is moving for an extension because he has calculated a statute-of-limitations deadline of October 31, 2019, to seek federal habeas relief, and he would like to take advantage of the full time Congress has afforded him to prepare and file his petition. Briefly, Saldana-Garcia has calculated this deadline because the time for him to seek certiorari from the United States Supreme Court expired on Sunday, May 31, 2015, rendering a true deadline of Monday, June 1, 2015. Saldana-Garcia then used 63 days from that point to prepare and properly file a timely state petition for writ of habeas corpus on August 3, 2015.
Union Nat. Bank of Wichita, Kan. v. Lamb, 337 U.S. 38, 40-41 (1949) (holding that if the deadline to seek cert falls on a Sunday, the deadline extends to Monday).
The state courts did not finally resolve these post-conviction proceedings until the Nevada Supreme Court's issuance of remittitur on January 2, 2019. From this point, with 302 days remaining for his federal period of limitations, Saldana-Garcia's statute-of-limitations deadline to seek federal habeas relief became October 31, 2019. As of the date of this filing, then, he still has 52 days remaining to seek federal habeas relief. Here, it is to his advantage to utilize all of it.
See generally 28 U.S.C. § 2244(d).
Further, the demands of other cases have Saldana-Garcia from meeting the current September 9, 2019 deadline. See, e.g., Vincent v. McDaniel, No. 17-16992, ECF No. 48 (9th Cir. June 14, 2019); Cardenas v. Baker, No. PC-5364 (Nev. 5th J. Dist. Ct. June 19, 2019); Holmes v. Gentry, No. 2:17-cv-01980-RFB-GWF (D. Nev. Aug. 2, 2019); Flores v. Williams, No. A-19-794716-W (Nev. 8th J. Dist. Ct. Aug. 2, 2019); Morales v. Baker, No. A-19-794622-W (Nev. 8th J. Dist. Ct. Aug. 2, 2019); Berry v. Baker, No. 3:16-cv-00470-MMD-WGC (D. Nev. Aug. 8, 2019); Nicholson v. Baker, No. 3:16-cv-00486 (D. Nev. Aug. 23, 2019). Further, counsel has been working diligently to meet an upcoming amended-petition deadline in the case of McNair v. Baca, No. 3:18-cv-00308-HDM-CBC (D. Nev.).
Furthermore, counsel was on leave from June 21-23, and then again from June 29 through July 8. After that, counsel attended in an out-of-town, three-day seminar on August 12-14, 2019.
Finally, during this time, counsel was preparing for a September 4, 2019, evidentiary hearing before this Court in the case of Davis v. Neven, No. 2:15-cv-01574-RFB-NJK (D. Nev.).
The above demands prevented counsel from meeting the current deadline. Further, it is to Saldana-Garcia's deadline to utilize the remainder of his statutory federal period of limitations to prepare and file his amended petition in this case. Accordingly, he seeks a 52-day extension to utilize the remainder of this time, up to and including October 31, 2019. This is his first request.
On September 6, 2019, counsel for Respondents, Deputy Attorney General Charles L. Finlayson, indicated by email that Respondents do not oppose the instant request for a 52-day extension. However, the parties agree that Respondents' non-opposition does not constitute tacit agreement with any of the representations in this motion, including Saldana-Garcia's statute-of-limitations-deadline calculation, nor does it constitute a waiver of any procedural defenses, such as a claim of untimeliness under the statute of limitations.
CONCLUSION
Saldana-Garcia does not request this extension for the purposes of undue delay but solely in the interests of justice, to utilize his remaining statutory period of limitations to seek federal relief and to allow his counsel to prepare and file a comprehensive amended petition on his behalf during this time.
Accordingly, for all of the above reasons, Saldana-Garcia respectfully requests an extension of the deadline to file an amended petition of 52 days, up to and including October 31, 2019.
Dated September 9, 2019.
Respectfully submitted,
Rene L. Valladares
Federal Public Defender
/s/S . Alex Spelman
S. Alex Spelman
Assistant Federal Public Defender
IT IS SO ORDERED:
/s/_________
United States District Judge
Dated: 9/9/2019