2 3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 DARREN L. McCOY, Case No. 3:20-cv-00018-MMD-WGC

7 Petitioner, ORDER v. 8 WILLIAM A. GITRE, et al., 9 Respondents. 10 11 I. SUMMARY 12 Petitioner Darren L. McCoy, a Nevada state prisoner, has submitted a pro se 13 Petition for Writ of Habeas Corpus (ECF No. 1-1) under

. This habeas 14 matter is before the Court for consideration of McCoy’s Application to Proceed In Forma 15 Pauperis (“IFP”) (ECF No. 3) as well as initial review under the Rules Governing Section 16 2254 Cases.1 For the reasons discussed below, the Court orders McCoy to show cause 17 why the petition should not be dismissed as untimely and to resolve the filing fee. 18 II. BACKGROUND 19 McCoy challenges a conviction and sentence imposed by the Eighth Judicial 20 District Court for County, Nevada (“state court”). State of Nevada v. McCoy, Case No. C- 21 12-278986-1.2 In April 2013, McCoy entered a guilty plea to one count of robbery with use 22 of a deadly weapon. On May 7, 2013, the state district court entered a judgment of 23 conviction sentencing McCoy to life with the possibility of parole after 10 years. McCoy 24

25 1All references to a “Habeas Rule” or the “Habeas Rules” in this order identify the 26 Rules Governing Section 2254 Cases in the United States District Courts. 2The Court takes judicial notice of the online docket records of the Eighth Judicial 27 District Court and Nevada appellate courts, which may be accessed by the public at: https://www.clarkcountycourts.us/Anonymous/default.aspx and http://caseinfo.nvsuprem 28 ecourt.us/public/caseSearch.do. 2 remittitur issued on August 20, 2015. There is no indication that McCoy filed a petition for 3 writ of certiorari with the United States Supreme Court. 4 On August 31, 2015, McCoy filed a state petition for writ of habeas corpus (“state 5 petition”) seeking post-conviction relief. The state petition was denied as time-barred. 6 McCoy appealed. The Nevada Court of Appeals affirmed the state court’s denial of relief, 7 and a remittitur issued on April 9, 2018. 8 On or about January 7, 2020, McCoy mailed, or handed to a prison official for the 9 purpose of mailing, the pro se federal petition initiating this case. (ECF No. 1-1.) 10 III. DISCUSSION 11 Pursuant to Habeas Rule 4, the assigned judge must examine the habeas petition 12 and order a response unless it “plainly appears” that the petitioner is not entitled to relief. 13 See also Valdez v. Montgomery,

(9th Cir. 2019). This rule allows courts 14 to screen and dismiss petitions that are patently frivolous, vague, conclusory, palpably 15 incredible, or false. Hendricks v. Vasquez,

(9th Cir. 1990) (collecting 16 cases). The court may also dismiss claims at screening for procedural defects. See Boyd 17 v. Thompson,

(9th Cir. 1998). 18 A. Resolving the Filing Fee 19 McCoy has requested permission to proceed IFP, meaning without paying the 20 standard five dollar ($5.00) filing fee. (ECF No. 3.) Pursuant to

and LSR 21 1-1 of the Local Rules of Practice, any person who is unable to prepay the fees in a civil 22 case may request IFP status. Indigent prisoners who do not have the money to pay the 23 $5.00 filing fee for a habeas petition may apply for IFP status. A prisoner’s IFP application 24 must be submitted on the form provided by the court and include specific financial 25 documents.

; LSR 1-1, LSR 1-2. 26 Here, McCoy has requested permission to proceed IFP, but his IFP application is 27 incomplete. He submitted a federal IFP application as well as the required affidavit and 28 acknowledgement, but he did not include a copy of his inmate trust account statement or 2 used by the state court. (ECF No. 1-2.) The prisoner IFP application required in this federal 3 district court differs from the application used in Nevada state courts. The federal financial 4 certificate addresses the financial information required under § 1915, such as an inmate’s 5 average account balance and average monthly deposits. The state court form does not 6 request this information. Although he may qualify for IFP status, the Court is unable to 7 make such determination without all of the correct documents. McCoy’s IFP application 8 lacks the appropriate financial information and documentation required by § 1915(a) and 9 the Local Rules and is therefore denied without prejudice. He will have approximately 45 10 days from the date of this order to either pay the $5.00 filing fee or submit a complete IFP 11 application with all required attachments. 12 B. Timeliness 13 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes a one- 14 year period of limitations for state prisoners to file a federal habeas petition pursuant to 28

. Under § 2244(d)(1)(A), the federal one-year limitation period, unless 16 otherwise tolled or subject to delayed accrual, begins running after “the date on which the 17 judgment became final by the conclusion of direct review or the expiration of the time for 18 seeking such direct review.” The federal limitations period is tolled while “a properly filed 19 application for State post-conviction or other collateral review with respect to the pertinent 20 judgment or claim is pending.” Id. § 2244(d)(2). However, an untimely state petition is not 21 “properly filed” and thus does not toll the federal statute of limitations. Pace v. DiGuglielmo, 22

(2005). 23 McCoy’s conviction became final when the time expired for filing a petition for writ 24 of certiorari with the United States Supreme Court on October 20, 2014. The federal 25 statute of limitations began running the following day. Although McCoy filed a state petition 26 on August 31, 2015, it was filed 11 days after the expiration of the state statute of 27 limitations. See McCoy v. State of Nevada, Nev. Ct. of Appeals Case No. 72513, Mar. 14, 28 2018 Order of Affirmance. Because the state petition was not timely under Nevada law, it 2

. Therefore, absent another basis for tolling or delayed accrual, the AEDPA 3 statute of limitations expired on October 21, 2015, and McCoy’s federal petition, filed over 4 four years later, is untimely on its face. McCoy must show cause in writing why his petition 5 should not be dismissed with prejudice as time-barred under § 2244(d). 6 In this regard, McCoy is informed that the one-year limitation period may be 7 equitably tolled. Equitable tolling is appropriate only if the petitioner can show that: (1) he 8 has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in 9 his way and prevented timely filing. Holland v. Florida,

, 649 (2010). Equitable 10 tolling is “unavailable in most cases,” Miles v. Prunty,

(9th Cir. 1999), 11 and “the threshold necessary to trigger equitable tolling is very high, lest the exceptions 12 swallow the rule,” Miranda v. Castro,

(9th Cir. 2002) (quotation 13 omitted)). The petitioner ultimately has the burden of proof on this “extraordinary 14 exclusion.”

. He accordingly must demonstrate a causal relationship between 15 the extraordinary circumstance and the lateness of his filing. E.g., Spitsyn v. Moore, 345

, 799 (9th Cir. 2003); accord Bryant v. Ariz. Attorney Gen.,

, 1061 17 (9th Cir. 2007). 18 McCoy further is informed that, under certain circumstances, the one-year limitation 19 period may begin running on a later date or may be statutorily tolled. See 28 U.S.C. 20 § 2244(d)(1)(B), (C), (D) & (d)(2). 21 Additionally, McCoy is informed that if he seeks to avoid application of the limitation 22 period based upon a claim of actual innocence, he must come forward with new reliable 23 evidence tending to establish actual factual innocence, i.e., tending to establish that no 24 juror acting reasonably would have found him guilty beyond a reasonable doubt. See 25 McQuiggin v. Perkins,

(2013); House v. Bell,

(2006); Lee v. 26 Lampert,

(9th Cir. 2011) (en banc). In this regard, “ ‘actual innocence’ means 27 factual innocence, not mere legal insufficiency.” Bousley v. United States,

, 28 623 (1998). 2 It is therefore ordered that: 3 1. Petitioner Darren L. McCoy’s application to proceed IFP (ECF No. 3) is denied 4 without prejudice. 5 2. The Clerk of Court is instructed to mail McCoy a blank IFP application for 6 incarcerated litigants with instructions for completing the form. 7 3. McCoy must file a complete IFP application by March 9, 2020, and must include: 8 (i) a financial certificate signed by an authorized prison official and McCoy; (ii) a 9 financial affidavit and acknowledgement signed by McCoy; and (iii) a statement 10 of his inmate trust account for the six-month period prior to filing. 11 4. Alternatively, McCoy must pay the $5.00 filing fee by March 9, 2020. 12 5. McCoy’s failure to comply with this order by (a) submitting an IFP application, 13 or (b) paying the $5.00 filing fee before the March 9, 2020 deadline will result in 14 the dismissal of this action without prejudice and without further advance notice. 15 It is further ordered that: 16 1. McCoy must also show cause in writing by March 9, 2020, why this action 17 should not be dismissed as untimely. If McCoy does not timely respond to this 18 order, the petition will be dismissed with prejudice without further advance 19 notice. If McCoy responds but fails to show with specific, detailed and competent 20 evidence why the petition should not be dismissed as untimely, the action will 21 be dismissed with prejudice. 22 2. Any assertions of fact McCoy makes in response to this show cause order must 23 be detailed, must be specific as to time and place, and must be supported by 24 competent evidence. The Court will not consider any assertions of fact that are 25 not specific as to time and place, that are not made pursuant to a declaration 26 under penalty of perjury based upon personal knowledge, and/or that are not 27 supported by competent evidence McCoy filed in the federal record. McCoy 28 must attach copies of all materials upon which he bases his argument that the 1 petition should not be dismissed as untimely. Unsupported assertions of fact 2 will be disregarded. 3 DATED THIS 24" day of January 2020.

MIRANDA M. DU 6 CHIEF UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28