Asusta v. Williams
2:20-cv-00048
D. Nev.Apr 20, 2020Background:
- Nevada Supreme Court issued remittitur on petitioner Isaac Asusta’s direct appeal on June 20, 2011, starting the state one-year tolling period and placing the federal AEDPA deadline after the certiorari period expired (Aug. 24, 2011).
- Asusta filed a counseled state post-conviction petition on June 27, 2012; the Nevada Supreme Court later affirmed denial as untimely under NRS 34.726(1) because Asusta did not plead good cause (decision noted Dec. 11, 2014).
- Because the state petition was untimely, it did not toll the federal one-year limitations period under 28 U.S.C. § 2244(d)(2); the federal period expired Aug. 24, 2012.
- Asusta was transferred from Nevada to Virginia on Mar. 19, 2012; he alleges counsel failed to inform him of the Nevada Supreme Court’s untimeliness ruling, his legal files were destroyed in transfer, and he had limited access to a law library lacking Nevada materials.
- Asusta learned by Summer 2016 (after a successful fee dispute with counsel) that no federal habeas had been filed; he was transferred back to Nevada on Oct. 30, 2019 and mailed his § 2254 petition on Jan. 6, 2020—over seven years after the AEDPA deadline.
- The district court rejected equitable tolling, dismissed the petition with prejudice as untimely, and denied a certificate of appealability.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Equitable tolling of AEDPA one-year period | Asusta sought tolling from Mar. 19, 2012 to Oct. 30, 2019 due to transfer, counsel’s conduct, destroyed files, and limited library access | State argued no extraordinary circumstance; untimely state petition did not toll; Asusta lacked diligence | Denied — petition untimely, AEDPA period expired and tolling not warranted |
| Effect of untimely state post-conviction petition and counsel error | Counsel litigated state petition; Asusta reasonably relied on counsel to pursue federal relief | State: untimely state petition did not toll federal clock; pleading requirement put Asusta on notice; counsel miscalculation is not extraordinary | Denied — counsel error and untimely state filing do not justify tolling; reliance ceased by Summer 2016 when Asusta knew no federal petition was filed |
| Incarceration in Virginia, destroyed files, law-library limitations | Asusta claimed imprisonment in Virginia and lack of Nevada materials made filing virtually impossible | State: incarceration and limited state-law materials not extraordinary; federal claims rely on federal law and other courts routinely receive out-of-state filings | Denied — these conditions do not amount to extraordinary circumstance preventing timely filing |
| Certificate of appealability (COA) | Implicitly argued appealable since merits exist | State argued procedural dismissal forecloses COA because Asusta was not reasonably diligent | Denied — reasonable jurists would not debate the procedural ruling or diligence failure |
Key Cases Cited
- Holland v. Florida, 560 U.S. 631 (2010) (equitable tolling available when petitioner shows diligence and extraordinary circumstance)
- Pace v. DiGuglielmo, 544 U.S. 408 (2005) (untimely state post-conviction petition does not toll AEDPA period)
- Lawrence v. Florida, 549 U.S. 327 (2007) (attorney miscalculation of filing deadline does not warrant equitable tolling)
- Smith v. Davis, 953 F.3d 582 (9th Cir. 2020) (equitable tolling requires continued diligence after extraordinary circumstance dissipates)
- Pulley v. Harris, 465 U.S. 37 (1984) (federal habeas relief does not lie for perceived state-law errors)
- Slack v. McDaniel, 529 U.S. 473 (2000) (standards for issuing a certificate of appealability on procedural dismissals)
- Wyatt v. State, 468 P.2d 338 (Nev. 1970) (appellate court may affirm for correct result even if based on different rationale)