Filed: Mar. 25, 2018
Latest Update: Mar. 25, 2018
Summary: ORDER RICHARD F. BOULWARE, II , District Judge . This is a habeas corpus proceeding pursuant to 28 U.S.C. 2254 brought by Gaston Danjou, a Nevada prisoner. On August 10, 2017, respondents filed a motion to dismiss arguing that Danjou's habeas petition is untimely under 28 U.S.C. 2244(d), that all the claims in the petition are procedurally defaulted, and that one of the claims is not cognizable in this proceeding. ECF No. 14. Danjou has not responded to the motion. 1 Under 28 U.S.C.
Summary: ORDER RICHARD F. BOULWARE, II , District Judge . This is a habeas corpus proceeding pursuant to 28 U.S.C. 2254 brought by Gaston Danjou, a Nevada prisoner. On August 10, 2017, respondents filed a motion to dismiss arguing that Danjou's habeas petition is untimely under 28 U.S.C. 2244(d), that all the claims in the petition are procedurally defaulted, and that one of the claims is not cognizable in this proceeding. ECF No. 14. Danjou has not responded to the motion. 1 Under 28 U.S.C. ..
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ORDER
RICHARD F. BOULWARE, II, District Judge.
This is a habeas corpus proceeding pursuant to 28 U.S.C. § 2254 brought by Gaston Danjou, a Nevada prisoner. On August 10, 2017, respondents filed a motion to dismiss arguing that Danjou's habeas petition is untimely under 28 U.S.C. § 2244(d), that all the claims in the petition are procedurally defaulted, and that one of the claims is not cognizable in this proceeding. ECF No. 14. Danjou has not responded to the motion.1
Under 28 U.S.C. § 2244(d)(1)(A), the federal one-year limitation period for filing a § 2254 petition, unless otherwise tolled or subject to delayed accrual, begins running after "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such direct review." State court records provided by the respondents show that Danjou had 30 days to file a direct appeal with the Nevada Supreme Court which expired on April 12, 2012. See Nev. R. App. P. 4. He did not file a direct appeal. He did, however, file a state habeas petition on August 18, 2014, which the district court denied as untimely on May 5, 2015. The Nevada Court of Appeals affirmed.
Danjou filed another state habeas petition on August 21, 2015, which the district court denied as untimely on November 23, 2015. The Nevada Court of Appeals affirmed.
Because they were untimely filed, neither of the state habeas proceedings tolled the statutory period. See Pace v. Diguglielmo, 544 U.S. 408, 412-13 (2005). The instant action was not filed until February 1, 2016, well beyond the one-year statutory period. ECF No. 6. See Houston v. Lack, 487 U.S. 266, 276 (1988) (under the "mailbox rule" a pro se petition is deemed filed when it is given to prison authorities for forwarding to the court clerk).
Based on the foregoing, and in the absence of any opposition from Danjou, this court concludes that this proceeding is untimely under 28 U.S.C. § 2244(d). Accordingly, the case shall be dismissed with prejudice on that basis. The court need not reach respondents' additional arguments for dismissal.
IT IS THEREFORE ORDERED that respondents' motion to dismiss (ECF No. 14) is GRANTED. The amended petition for writ of habeas corpus (ECF No. 7) is DISMISSED with prejudice as untimely. The Clerk shall enter judgment accordingly.
IT IS FURTHER ORDERED that the court declines to issue certificate of appealability.
IT IS FURTHER ORDERED that petitioner's motion for appointment of counsel (ECF No. 12) is DENIED.
IT IS FURTHER ORDERED that respondents' motion for extension of time (ECF No. 13) is GRANTED nunc pro tunc as of July 20, 2017.
