Opinion
2:09-cv-1784-KJD-GWF.
June 15, 2010
ORDER
Reginald Stewart, a Nevada prisoner, has filed a petition for a writ of habeas corpus (docket #1), pursuant to 28 U.S.C. § 2254. Respondents now move to dismiss the petition (docket #8), petitioner has opposed the motion (docket #10), and respondents have replied (docket #11). As discussed below, the motion to dismiss shall be granted.
I. Background
Following a jury trial in March of 2003, petitioner was convicted on charges of Conspiracy to Commit Robbery, Robbery with the Use of a Deadly Weapon, Burglary While in Possession of a Firearm, Possession of a Firearm by an Ex-felon, and Robbery with the Use of a Deadly Weapon. He filed a direct appeal challenging the length of his sentence. The conviction and sentence were affirmed. Thereafter, petitioner filed a state post-conviction petition claiming he was denied the effective assistance of counsel at trial and on appeal. The petition was dismissed by the state district court on a finding that no specific facts were provided to support the issuance of a writ. This decision was affirmed by the Nevada Supreme Court on April 19, 2005.
Sometime later, in July of 2009, petitioner filed a state petition for writ of habeas corpus seeking relief for disciplinary matters. An evidentiary hearing was held and the petition was denied on November 6, 2009. No appeal was taken.
This matter was commenced by petitioner in September of 2009, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 raising a claim of cruel and unusual punishment in violation of the Eighth Amendment; a claim of denied equal protection in violation of the Fourteenth Amendment, and a second claim of cruel and unusual punishment arising from alleged retaliation during incarceration.
Respondents now move to dismiss the petition contending grounds one and two are untimely filed and ground three fails to state a claim which can be redressed in this action on a petition for writ of habeas corpus.
II. Analysis
A. Statute of Limitations
Under the AEDPA statute of limitations, a petition for writ of habeas corpus generally must be filed within one year from "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). The Ninth Circuit Court of Appeals has held that the "time for seeking direct review" under 28 U.S.C. § 2244(d)(1)(A) includes the ninety-day period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court under Supreme Court Rule 13, whether or not the petitioner actually files such a petition. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).
This petition was brought more than four years after petitioner completed litigating his state post-conviction petition in April of 2005. See Exhibit 10. Thus, it is clearly outside the one-year limitations period. Petitioner appears to argue that the limitation period should be tolled because the one-year period begins "when the facts became discoverable through due diligence." Opposition (docket #10). He suggests that because he "did not argue these facts" he should be allowed to do so now.
The exhibits referenced in this order were filed by respondents in support of their motion to dismiss the petition and are found with that document in the court's docket at number 8.
"When external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling [of the statute of limitations] may be appropriate." Lott v. Meuller, 304 F.3d 918, 922 (9th Cir. 2002) citing Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). Equitable tolling is only appropriate "if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Miranda, 292 F.3d at 1066 ( quoting Calderon v. United Stated Dist. Court (Beeler), 1289 F.3d 1283, 1288 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530 (9th Cir. 1998) ( en banc)) (emphasis in original). Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way. Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005). However, petitioner offers no excuse for his failure to raise the instant claims in a timely manner, except for the inadequacy of the prison law library. Because the facts and basic principals of the claims raised were known to petitioner in his state court proceedings, his proffered excuse carries no persuasive value.
Because the petition was filed more than four years after petitioner completed his state post-conviction review, it is untimely and must be dismissed.
B. Conditions of Confinement
In ground three, petitioner complains of retaliation while incarcerated. While this claim is similar to the one raised in his second post-conviction petition, it is not a valid claim in this action. Challenges to conditions of confinement are not properly raised in federal habeas proceedings. See Heck v. Humphrey, 512 U.S. 477, 481 (1994); Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991).
C. Exhaustion
Finally, respondents note that none of the grounds for relief presented in this petition have previously been presented to the Nevada Supreme Court. This contention is supported by a review of the claims presented in petitioner's direct appeal and in his appeal on the original post-conviction petition. The claims herein are unexhausted and this court cannot grant relief. Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b).
The motion to dismiss shall be granted.
III. Certificate of Appealability
In order to proceed with his appeal, petitioner must receive a certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed.R.App.P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951 (9th Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). Generally, a petitioner must make "a substantial showing of the denial of a constitutional right" to warrant a certificate of appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). "The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. ( quoting Slack, 529 U.S. at 484). In order to meet this threshold inquiry, the petitioner has the burden of demonstrating that the issues are debatable among jurists of reason; that a court could resolve the issues differently; or that the questions are adequate to deserve encouragement to proceed further. Id.
Pursuant to the December 1, 2009 amendment to Rule 11 of the Rules Governing Section 2254 and 2255 Cases, district courts are required to rule on the certificate of appealability in the order disposing of a proceeding adversely to the petitioner or movant, rather than waiting for a notice of appeal and request for certificate of appealability to be filed. Rule 11(a). This Court has considered the issues raised by petitioner, with respect to whether they satisfy the standard for issuance of a certificate of appealability, and determines that none meet that standard. The Court will therefore deny petitioner a certificate of appealability. IT IS THEREFORE ORDERED that the Motion to Dismiss (docket #8) is GRANTED. The petition is DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that no certificate of appealability shall be granted. The clerk shall enter judgment accordingly.