1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 DAIMON MONROE, Case No. 2:18-cv-01491-GMN-BNW 12 Petitioner, ORDER 13 v. 14 WARDEN WILLIAMS, et al., 15 Respondents. 16 17 I. Introduction 18 This is a pro se habeas corpus action under

. Currently before the court 19 are Daimon Monroe's petition for a writ of habeas corpus (ECF No. 19), respondents' motion to 20 dismiss (ECF No. 27), Monroe's motion for stay (ECF No. 55), respondents' opposition to the 21 motion for stay (ECF No. 56), and Monroe's response to opposition of stay (ECF No. 57). The 22 court finds that the action is untimely, even with a delayed accrual of the statute of limitations. 23 The court thus grants respondents' motion to dismiss. A stay would not cure the defect of 24 untimeliness, and the court thus denies Monroe's motion for a stay. 25 II. Procedural History 26 After a jury trial, Monroe was convicted of one count of conspiracy to possess stolen 27 property and/or to commit burglary and twenty-six counts of possession of stolen property. Ex. 28 110 (ECF No. 43-11). Monroe appealed. On July 30, 2010, the Nevada Supreme Court reversed 1 the conviction of one count of possession of stolen property and affirmed in all other respects. 2 Ex. 136 (ECF No. 45-4). On September 17, 2010, the state district court entered an amended 3 judgment of conviction. Ex. 139 (ECF No. 45-7). Monroe did not appeal the amended judgment 4 of conviction. 5 On July 7, 2011, Monroe filed his first post-conviction habeas corpus petition in the state 6 district court. Ex. 141 (ECF No. 45-9). The state district court denied the petition on May 20, 7 2014. Ex. 193 (ECF No. 48-11). Monroe appealed. The Nevada Supreme Court affirmed on 8 October 16, 2015. Ex. 202 (ECF No. 50-2). Remittitur issued on November 10, 2015. Ex. 203 9 (ECF No. 50-3). 10 On December 16, 2016, Monroe filed his second post-conviction habeas corpus petition in 11 the state district court. Ex. 215 (ECF No. 50-15). The state district court denied the petition on 12 May 5, 2017. Ex. 225 (ECF No. 51-10). The state district court determined that the second state 13 petition was untimely under

(1) and successive under Nev. Rev. Stat. 14 § 34.810. Id. The state district court also determined that Monroe had not shown good cause and 15 prejudice to overcome those state-law procedural bars. Id. Monroe appealed. The Nevada 16 Supreme Court transferred the case to the Nevada Court of Appeals. Ex. 232 (ECF No. 51-17). 17 On February 13, 2018, the Nevada Court of Appeals affirmed the state district court's decision. 18 Ex. 235 (ECF No. 52-1). Monroe asked the Nevada Supreme Court to review the decision. The 19 Nevada Supreme Court granted the petition for review. Ex. 244 (ECF No. 52-10). On July 20, 20 2018, the Nevada Supreme Court affirmed the state district court's decision. Ex. 247 (ECF No. 21 52-13). Remittitur issued on August 16, 2018. Ex. 249 (ECF No. 52-15). 22 On August 8, 2018, Monroe dispatched his federal habeas corpus petition under 28 U.S.C. 23 § 2254 to the court. The court received the petition on August 10, 2018. 24 Subsequent to commencing this action, Monroe filed more motions in state court. They 25 are not relevant to the question of timeliness. 26 III. Legal Standard 27 Congress has limited the time in which a person can petition for a writ of habeas corpus 28 pursuant to

: 1 A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. 2 The limitation period shall run from the latest of— 3 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; . . . or 4 (D) the date on which the factual predicate of the claim or claims presented 5 could have been discovered through the exercise of due diligence. 6

(d)(1). If the judgment is not appealed, then it becomes final thirty days after 7 entry, when the time to appeal to the Nevada Supreme Court has expired. See Gonzalez v. 8 Thaler,

(2012). See also Nev. R. App. P. 4(b), 26(a). Any time spent pursuing 9 a properly filed application for state post-conviction review or other collateral review does not 10 count toward this one-year limitation period.

(d)(2). The period of limitation 11 resumes when the post-conviction judgment becomes final upon issuance of the remittitur. 12 Jefferson v. Budge,

, 1015 n.2 (9th Cir. 2005). An untimely state post-conviction 13 petition is not “properly filed” and does not toll the period of limitation. Pace v. DiGuglielmo, 14

(2005). 15 Section 2244(d) is subject to equitable tolling. Holland v. Florida,

, 645 16 (2010). “[A] ‘petitioner’ is ‘entitled to equitable tolling’ only if he shows ‘(1) that he has been 17 pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and 18 prevented timely filing.”

at 649 (quoting Pace,

). 19 Actual innocence can excuse operation of the statute of limitations. McQuiggin v. 20 Perkins,

(2013). “‘[A] petitioner does not meet the threshold requirement 21 unless he persuades the district court that, in light of the new evidence, no juror, acting 22 reasonably, would have voted to find him guilty beyond a reasonable doubt.’”

at 386 (quoting 23 Schlup v. Delo,

(1995)). “‘[A]ctual innocence’ means factual innocence, not 24 mere legal insufficiency.” Bousley v. United States,

(1998). 25 The petitioner effectively files a federal petition when he delivers it to prison officials to 26 be forwarded to the clerk of the court. Rule 3(d), Rules Governing Section 2254 Cases in the 27 United States District Courts. 28 1 IV. Discussion 2 A. The petition is untimely 3 1. Accrual by finality of judgment 4 If the one-year period started running on the date that Monroe's judgment of conviction 5 became final, then the action is untimely. The judgment of conviction became final on October 6 28, 2010, when the time to appeal the amended judgment of conviction expired. When Monroe 7 filed his first state post-conviction petition on July 7, 2011, 251 days had passed. The one-year 8 period then stopped while that post-conviction petition was pending in state court. The one-year 9 period resumed the day after remittitur issued on November 10, 2015. Monroe had nothing else 10 pending in state court for the remainder of the period, and the period expired at the end of March 11 4, 2016. The federal petition, mailed on August 8, 2018, was more than two years late. 12 2. Accrual by learning of factual predicate 13 Monroe argues that nine and a half years after a search of his residence, or in March 2016, 14 he saw a photograph that showed an irregularity of a search warrant. ECF No. 19 at 3, ECF No. 15 55 at 1. Assuming that Monroe's argument is true, and his seeing of the photograph in March 16 2016 qualifies as learning of the factual predicate of his claims for a delayed accrual of the statute 17 of limitations under

(d)(1)(D), the action still is untimely. If Monroe saw the 18 photograph on March 31, 2016, then the one-year period would have started the next day, on 19 April 1, 2016. Monroe filed his second state post-conviction petition on December 16, 2016. 20 However, that petition was untimely under

(1). It did not qualify for 21 tolling of the one-year period under

(d)(2). Pace,

. The one-year 22 period would have expired at the end of March 31, 2017. The federal petition, mailed on August 23 8, 2018, was more than one year late. 24 B. Equitable tolling is not warranted 25 Monroe does not argue that the court should grant him equitable tolling, but nonetheless 26 the court has considered it in combination with the delayed accrual of the one-year period under 27 § 2244(d)(1)(D). Equitable tolling does not stop the limitation clock; once the extraordinary 28 circumstance that prevented timely filing goes away, Monroe needed to be diligent in filing his 1 federal habeas corpus petition. Smith v. Davis,

(9th Cir. 2020). Perhaps Monroe 2 thought that he had one year from learning about the photograph to file his state post-conviction 3 habeas corpus petition. However, once Monroe completed the state post-conviction petition 4 form, he would have learned otherwise. Nevada's one-year statute of limitations, Nev. Rev. Stat. 5 § 34.726(1), is a pleading requirement. Question 19 on the petition form asked Monroe to explain 6 why he was filing the petition more than a year late, and Monroe wrote, "Yes. New evidence." 7 Ex. 215 at 5 (ECF No. 50-15 at 6). At that point, Monroe knew or should have known that there 8 was no guarantee that the state courts would determine his second state petition to be timely, and 9 thus eligible for tolling under § 2244(d)(2). If the state courts ultimately found that the second 10 state petition was untimely, then all that time would not have been tolled under § 2244(d)(2). 11 Pace,

. He also could not rely upon this court later determining that equitable 12 tolling was warranted for the time that he spent on the untimely second state petition. Whatever 13 extraordinary circumstance that prevented Monroe from timely filing a federal habeas corpus 14 petition had gone away. He was able to file a federal petition because he was filing a state 15 petition, and from the state petition form he knew that he had a timeliness problem. The Supreme 16 Court has explained what a petitioner can do when the timeliness of a state petition, and thus its 17 eligibility for tolling under § 2244(d)(2), is in doubt. The petitioner can file a "protective" federal 18 habeas corpus petition and ask the federal district court to stay the proceedings until the state 19 proceedings have concluded. Pace,

-17 (citing Rhines v. Weber,

, 20 278 (2005)). Monroe did nothing, and doing nothing in the face of a potentially untimely second 21 state petition was not diligence. Consequently, equitable tolling is not warranted. 22 C. Monroe has not demonstrated actual innocence 23 To the extent that Monroe argues that the irregularity in the search warrant shows that he 24 is actually innocent, the court disagrees. An irregularity in the search warrant is not factual 25 innocence, but a legal insufficiency. Bousley,

. Monroe has not demonstrated 26 actual innocence. 27 28 1 D. The court will not address respondents' other arguments 2 Respondents present other arguments in their motion to dismiss. They argue that ground 1 3 is a Fourth Amendment claim that is not addressable in federal habeas corpus because Monroe 4 had a full and fair opportunity to litigate the claim in state court. ECF No. 27 at 8 (citing Stone v. 5 Powell,

(1976)). They argue that ground 3 is unexhausted, ECF No. 27 at 5-7, 6 procedurally defaulted, id. at 7-8, and conclusory, id. at 8. The court will not address these 7 arguments because the court is dismissing the action as a whole as untimely. 8 E. The court denies Monroe's motion for stay 9 Monroe asks the court to stay this action while he returns to state court to obtain copies of 10 the search warrants. ECF No. 55. However, a stay to obtain the warrants would not solve the 11 untimeliness of this action. Consequently, the court denies Monroe's motion for stay. 12 F. The court will not issue a certificate of appealability 13 Reasonable jurists would not find debatable or wrong the court's conclusion that the action 14 is untimely, regardless of the accrual date. Reasonable jurists also would not find debatable or 15 wrong the court's conclusion that Monroe did not demonstrate the diligence needed for equitable 16 tolling. Finally, reasonable jurists would not find debatable or wrong the court's conclusion that 17 Monroe has not demonstrated actual innocence. For these reasons, the court will not issue a 18 certificate of appealability. 19 V. Conclusion 20 IT THEREFORE IS ORDERED that petitioner's motion for stay (ECF No. 55) is 21 DENIED. 22 IT FURTHER IS ORDERED that respondents motion to dismiss (ECF No. 27) is 23 GRANTED. This action is DISMISSED with prejudice as untimely. The clerk of the court will 24 enter judgment accordingly and close this action. 25 IT FURTHER IS ORDERED that a certificate of appealability will not issue.

26 DATED: May 14, 2020

27 ______________________________ GLORIA M. NAVARRO 28 United States District Judge