2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 RODGER ORLIN EVANS, Case No. 3:19-cv-00373-MMD-CLB 7 Petitioner, 8 v. ORDER 9 GEORGE TOGLIATTI, et al., 10 Respondents. 11 I. SUMMARY 12 This habeas matter filed under

comes before the Court on 13 Respondents’ motion to dismiss Petitioner Rodger Orlin Evans’ pro se habeas petition as 14 untimely. (ECF No. 10.) Petitioner opposed (ECF No. 14), and Respondents replied. (ECF 15 No. 15.) Because it was filed after the statute of limitations had expired, this petition is 16 dismissed as untimely. 17 II. BACKGROUND 18 A jury found Petitioner guilty of exploitation of an elderly victim involving over 19 $5,000. (Exh. 51.)1 The state district court sentenced Petitioner to a term of 38 to 180 20 months, and to restitution in the amount of $56,000. (Exh. 59.) The court entered 21 judgment of conviction on November 3, 2015. (Id.) 22 The Nevada Court of Appeals affirmed Petitioner’s conviction on June 20, 2016. 23 (Exh. 80.) On October 25, 2018, the court affirmed the denial of his state postconviction 24 habeas corpus petition, and remittitur issued on November 19, 2018. (Exhs. 94, 96.) 25 /// 26

27 1Exhibits referenced in this order are exhibits accompanying Respondents’ motion to dismiss (ECF No. 10) and are found at ECF Nos. 11, 12. 28 1 Petitioner mailed his federal habeas petition on July 1, 2019. (ECF No. 4.) The 2 Court dismissed the petition with leave to amend because, while Petitioner used the 3 Court’s form petition, it was unclear what grounds he wished to raise. (ECF No. 3.) 4 Petitioner filed an amended petition on September 4, 2019. (ECF No. 5.) Respondents 5 have moved to dismiss the amended petition as time-barred. (ECF No. 10.) 6 III. DISCUSSION 7 A. Statute of Limitations 8 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) went into effect on 9 April 24, 1996 and imposes a one-year statute of limitations on the filing of federal habeas 10 corpus petitions. See

(d). The one-year time limitation can run from the 11 date on which a petitioner’s judgment became final by conclusion of direct review, or the 12 expiration of the time for seeking direct review. See

(d)(1)(A). Further, 13 a properly filed petition for state postconviction relief can toll the period of limitations. See 14

(d)(2). 15 Ignorance of the one-year statute of limitations does not constitute an extraordinary 16 circumstance that prevents a prisoner from making a timely filing. See Rasberry v. Garcia, 17

(9th Cir. 2006) (“a pro se petitioner’s lack of legal sophistication is 18 not, by itself, an extraordinary circumstance warranting equitable tolling”). 19 B. Timeliness 20 As mentioned, Petitioner’s judgment of conviction was filed on November 3, 2015. 21 (Exh. 59.) The Nevada Court of Appeals affirmed his conviction on June 20, 2016. (Exh. 22 80.) The 90-day period to file a petition with the United States Supreme Court expired on 23 September 18, 2016. Therefore, the AEDPA one-year period of limitations began to run 24 on September 19, 2016, and, absent tolling, would have expired on September 19, 2017. 25 See

(d)(1)(A). 26 /// 27 /// 28 /// 1 Petitioner filed his state habeas petition—247 days into the AEDPA one-year 2 period of limitations—on May 24, 2017.2 (Exh. 83.) The Nevada Court of Appeals affirmed 3 the denial of his petition, and remittitur issued on November 19, 2018. The AEDPA statute 4 of limitations resumed running on November 20, 2018 and ended 118 days later, on 5 March 18, 2019.3 See

(d)(2). Petitioner then filed his federal petition on 6 July 1, 2019, about three and a half months after the limitations period expired. (ECF No. 7 4.) The Court dismissed Petitioner’s first filing with leave to file an amended petition, which 8 Petitioner filed on September 4, 2019. (ECF No. 5)4 Petitioner’s federal habeas action is 9 therefore untimely. 10 Accordingly, Respondents’ motion to dismiss Petitioner’s federal habeas corpus 11 petition, with prejudice, as time-barred, is granted. 12 C. Certificate of Appealability 13 Because this is a final order adverse to Petitioner, Rule 11 of the Rules Governing 14 Section 2254 Cases requires the Court to issue or deny a certificate of appealability 15 (“Certificate”). Accordingly, the Court has sua sponte evaluated the claims within the 16 petition for suitability for the issuance of a Certificate. See

(c); Turner v. 17 Calderon,

(9th Cir. 2002). 18 Under

(c)(2), a Certificate may issue only when the petitioner 19 “has made a substantial showing of the denial of a constitutional right.” For claims rejected 20 on the merits, a petitioner “must demonstrate that reasonable jurists would find the district 21 court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 22

(2000) (citing Barefoot v. Estelle,

, 893 & n.4 (1983)). For 23 2Respondents incorrectly calculated that 337 days had passed before Petitioner 24 filed his state habeas petition. (ECF No. 10 at 5.)

25 3Again, continuing from the initial miscalculation, Respondents incorrectly state 26 that the federal statute of limitations expired on December 17, 2018. (ECF No. 10 at 6.)

27 4Because the Court dismissed Petitioner’s original petition because it was unclear what claims he wished to bring, he did not have a properly filed petition before the Court 28 as of July 1, 2019. Regardless, the statute of limitations had already expired at the time 1|| procedural rulings, a Certificate will issue only if reasonable jurists could debate: (1) 2|| whether the petition states a valid claim of the denial of a constitutional right; and (2) whether the court's procedural ruling was correct. See

4 After reviewing its determinations and rulings in dismissing Petitioner's petition, the Court finds that none of its rulings meets the S/ack standard. The Court therefore declines 6|| to issue a certificate of appealability. 7\| IV. CONCLUSION 8 It is therefore ordered that Respondents’ motion to dismiss the petition (ECF No. 10) is granted as set forth in this order. The petition is dismissed with prejudice. 10 It is further ordered that a certificate of appealability is denied. 11 The Clerk of Court is directed to enter judgment accordingly and close this case. 12 DATED THIS 5" Day of November 2020. ‘3 LLnr_ 14 Sf

15 CHIEF UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28