Toston v. State of Nevada
2:18-cv-02424
D. Nev.Jul 3, 2019Background
- Petitioner Marilyn Toston was convicted after jury trial of multiple theft, forgery, and embezzlement counts; direct appeal concluded with remittitur issued June 13, 2016.
- Petitioner filed two state post-conviction petitions: (1) a December 2016 petition seeking application of credits toward minimum term/parole eligibility (granted by the state district court but appeal dismissed for lack of standing), and (2) a June 2017 petition challenging the judgment of conviction (found untimely by the state district court and affirmed on appeal).
- Petitioner filed an amended federal habeas petition under 28 U.S.C. § 2254 in December 2018; the court ordered amendment to name the proper respondent and to verify the petition.
- The district court dismissed Ground 1 (challenge to the state court’s denial of the untimely post-conviction petition) as not cognizable in federal habeas and, alternatively, meritless under Nevada’s timeliness rule.
- The court found the federal petition appears untimely under AEDPA’s one-year limitation, calculated as 510 non-tolled days, but recognized petitioner’s actual-innocence claim might excuse untimeliness and therefore ordered respondents to answer the remaining claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a challenge to the state post-conviction court's timeliness dismissal is cognizable in federal habeas | Toston contends the state court erred in finding her state post-conviction petition untimely | Respondents contend federal habeas cannot review state post-conviction procedural rulings and that the state ruling was correct | Dismissed Ground 1: challenges to state post-conviction process are not cognizable in § 2254; alternatively, Nevada’s timeliness rule made the petition untimely |
| Whether Toston's federal petition is timely under 28 U.S.C. § 2244(d)(1) | Toston asserts tolling and dates that would make her federal filing timely; she also claims actual innocence | Respondents assert AEDPA’s one-year clock expired and state petitions did not toll enough time to make federal filing timely | Court found petition appears untimely (510 non-tolled days) but did not dismiss because actual-innocence claim might excuse untimeliness |
| Whether state post-conviction petitions tolled AEDPA clock | Toston argues the state proceedings should toll the AEDPA period | Respondents argue the credit-related state petition tolled but the June 2017 untimely challenge did not | Court held only the properly filed credit-related petition tolled; the untimely post-conviction petition did not toll under Pace |
| Whether actual innocence can excuse untimeliness and whether the record suffices to assess it | Toston asserts actual innocence sufficient to permit review on the merits | Respondents contend the record must be developed and actual-innocence merits are not established from existing filings | Court held actual-innocence could excuse the untimeliness and ordered respondents to answer so the record can be developed to assess that claim |
Key Cases Cited
- Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989) (errors in state post-conviction process are not cognizable in federal habeas)
- Gerlaugh v. Stewart, 129 F.3d 1027 (9th Cir. 1997) (same principle)
- Gonzales v. State, 53 P.3d 901 (Nev. 2002) (Nevada does not apply a prison mailbox rule to state post-conviction petitions)
- Jimenez v. Quarterman, 555 U.S. 113 (U.S. 2009) (finality for AEDPA limitations when certiorari period expires)
- Pace v. DiGuglielmo, 544 U.S. 408 (U.S. 2005) (untimely state petitions are not "properly filed" for tolling)
- McQuiggin v. Perkins, 569 U.S. 383 (U.S. 2013) (actual innocence can excuse AEDPA time bar)
- Cassett v. Stewart, 406 F.3d 614 (9th Cir. 2005) (standard for dismissing unexhausted claims under § 2254(b)(2))