Opinion
2:16-cv-02477-JAD-NJK
12-23-2016
Lester Selander, Petitioner v. Acting Warden, Respondents
Order Granting Application to Proceed in forma pauperis and Ordering Petitioner to Show Cause [ECF No. 1]
Pro se § 2254 petitioner Lester Selander has filed a petition for a writ of habeas corpus and has also submitted an application to proceed in forma pauperis. It appears that Selander's petition may be time-barred, so I order him to show cause by January 23, 2017, why his petition should not be dismissed as untimely.
Discussion
The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a one-year statute of limitations for federal habeas corpus petitions. The one-year time limitation begins to run on the date the judgment of conviction becomes final either by the conclusion of direct review or the expiration of the time for seeking direct review. Additionally, the time during which a properly filed state habeas petition is pending is excluded from the limitations period.
Though Selander failed to complete many portions of the § 2254 form petition, it appears from the state-court docket (which I take judicial notice of) that the state court entered Selander's judgment of conviction on July 22, 2013, which means that the deadline to file his direct appeal expired August 22, 2013. Thus, the deadline to file a federal habeas petition expired one year later on August 22, 2014, unless there was tolling.
See Nevada Supreme Court Case No. 66053.
NEV. R. APP. PROC. (b)(1)(A).
The state-court record reflects that no properly filed state appeal or post-conviction petition tolled any part of the AEDPA one-year limitations period because both Selander's notice of direct appeal and state habeas petition were denied as untimely. In that event, this federal petition was filed well beyond the one-year limitations period unless Selander can show that he is entitled to equitable tolling. A petitioner may be entitled to equitable tolling if he can show: "'(1) that he has been pursuing his right diligently, and that (2) some extraordinary circumstance stood in his way' and prevented timely filing."
The Nevada Supreme Court rejected Selander's untimely notice of direct appeal for lack of jurisdiction on July 25, 2014. Id. The Nevada Court of Appeals affirmed the denial of his state post-conviction petition as untimely on June 22, 2016. Case No. 69259.
Holland v. Florida, 560 U.S. 631, 649 (2009); see also Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). --------
Because it appears from the face of Selander's petition and the state-court record that the instant petition is untimely, I give Selander until January 23, 2017, to show that his petition was filed within the applicable limitations period or, if it was not, that he is entitled to equitable tolling.
Conclusion
Accordingly, IT IS HEREBY ORDERED that Selander's application to proceed in forma pauperis [ECF No. 1] is GRANTED.
IT IS FURTHER ORDERED that Selander must show cause by January 23, 2017, why this petition should not be dismissed as untimely. Selander must demonstrate that this petition was timely filed within the one-year limitations period or that he is entitled to equitable tolling. To satisfy his obligations under this order, Selander must set forth a complete and accurate history, including dates, of any post-conviction proceedings in the state district court and the Nevada Supreme Court, including direct appeal and state habeas petitions. If Selander does not respond to this order by January 23, 2017, or seek other appropriate relief, his petition will be dismissed
without prejudice and without further notice.
Dated this December 23, 2016.
/s/_________
Jennifer A. Dorsey
United States District Judge