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6 UNITED STATES DISTRICT COURT

7 DISTRICT OF NEVADA

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9 ARRION DONTA WRIGHT, Case No. 3:19-cv-00408-LRH-CBC

10 Petitioner, ORDER v. 11 RENEE BAKER, et al., 12 Respondents. 13 14 Arrion Donta Wright submitted a pro se

habeas corpus petition 15 and has now paid the filing fee (ECF Nos. 1-1, 5). The petition shall be dismissed as 16 untimely. 17 The Antiterrorism and Effective Death Penalty Act (AEDPA) went into effect on 18 April 24, 1996, and imposes a one-year statute of limitations on the filing of federal 19 habeas corpus petitions.

(d). The one-year time limitation can run 20 from the date on which a petitioner’s judgment became final by conclusion of direct 21 review, or the expiration of the time for seeking direct review. 28 U.S.C. 22 § 2244(d)(1)(A). Further, a properly filed petition for state postconviction relief can toll 23 the period of limitations.

(d)(2). 24 A petitioner may be entitled to equitable tolling if he can show “‘(1) that he has 25 been pursuing his right diligently, and that (2) some extraordinary circumstance stood in 26 his way’ and prevented timely filing.” Holland v. Florida,

, 649 (2009) 27 (quoting prior authority). Equitable tolling is “unavailable in most cases,” Miles v. 28 Prunty,

(9th Cir. 1999) and “the threshold necessary to trigger 1 2 equitable tolling is very high, lest the exceptions swallow the rule,” Miranda v. Castro, 3

(9th Cir. 2002) (quoting United States v. Marcello,

, 4 1010 (7th Cir. 2000)). The petitioner ultimately has the burden of proof on this 5 “extraordinary exclusion.”

. He accordingly must demonstrate a 6 causal relationship between the extraordinary circumstance and the lateness of his 7 filing. E.g., Spitsyn v. Moore,

(9th Cir. 2003). Ignorance of the one- 8 year statute of limitations does not constitute an extraordinary circumstance that 9 prevents a prisoner from making a timely filing. See Rasberry v. Garcia,

, 10 1154 (9th Cir. 2006) (“a pro se petitioner’s lack of legal sophistication is not, by itself, an 11 extraordinary circumstance warranting equitable tolling”). 12 In his federal petition, Wright states that the judgment of conviction he seeks to 13 challenge–Case No. 278988-2–was entered in February 2013 (ECF No. 1-1, pp. 4, 9). 14 He did not file a direct appeal, and therefore, his conviction became final 30 days later. 15 The docket of the Nevada Court of Appeals reflects that Wright filed a state 16 postconviction habeas corpus petition more than 5 years after the judgment of 17 conviction was entered. Nevada Court of Appeals Case No. 76104. Wright claimed in 18 his state petition that his sentence enhancement for robbery with use of a deadly 19 weapon violates his federal constitutional rights to a fair trial, equal protection, and to be 20 free from double jeopardy. The Nevada Court of Appeals affirmed the denial of the 21 petition as untimely and therefore procedurally barred.

22 Here, Wright acknowledges that his federal petition is untimely. He states, with 23 no elaboration whatsoever, that he can demonstrate cause and prejudice to overcome 24 the procedural default.

25 In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural 26 rule, federal habeas review of the claims is barred unless the prisoner can 27 demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the 28 claims will result in a fundamental miscarriage of justice. 2 Coleman v. Thompson,

(1991); see also Murray v. Carrier, 477 3|| U.S. 478, 485 (1986). 4 To demonstrate cause for a procedural default, the petitioner must be able to “show 5|| that some objective factor external to the defense impeded” his efforts to comply with 6|| the state procedural rule. Murray, 477 U.S. at 488 (emphasis added). For cause to 7\| exist, the external impediment must have prevented the petitioner from raising the g|| claim. See McCleskey v. Zant,

(1991). 9 In federal habeas cases arising out of Nevada, the state courts, generally, apply 10|| substantially the same standards as the federal courts in determining whether a 41|| petitioner can demonstrate either cause or actual innocence in order to overcome a 42|| Claimed procedural default. Thus, if the petitioner had no viable cause-and-prejudice or 43|| actual-innocence argument under the generally substantially similar federal and state 44|| standards, then the federal habeas claim is also subject to immediate dismissal with 45|| Prejudice as procedurally defaulted. And again, while Wright included the cause and 16|| Prejudice standards in his petition, he set forth no specific arguments as to how he 47|| could demonstrate cause and prejudice. He merely invokes the terms cause and 48|| Prejudice and then argues his double jeopardy claim. Accordingly, the petition is 49|| dismissed. 20 IT IS THEREFORE ORDERED that the petition is DISMISSED with prejudice as untimely. 22 IT IS FURTHER ORDERED that a certificate of appealability is denied. 23 IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and 24|| Close this case. 25 DATED this 28th day of October, 2019. 26 □□ LAR . HICKS 28 UNITED STATES DISTRICT JUDGE