Argued and Submitted, March 12, 2014, San Francisco, California
Appeal from the United States District Court for the District of Nevada. D.C. No. 3:11-cv-00013RCJ-VPC. Robert Clive Jones, District Judge, Presiding.
Jonathan M. Kirshbaum (argued), Research and Writing Specialist; Rene L. Valladares, Federal Public Defender; John C. Lambrose, Assistant Federal Public Defender, Las Vegas, Nevada, for Petitioner-Appellant.
Jeffrey M. Conner (argued), Deputy Attorney General; Catherine Cortez Masto, Attorney General, Carson City, Nevada, for Respondents-Appellees.
Before: M. Margaret McKeown and Ronald M. Gould, Circuit Judges, and Gordon J. Quist, Senior District Judge.[*].
McKEOWN, Circuit Judge.
This case raises the familiar question of whether a prisoner timely filed a petition for a writ of habeas corpus in federal court. For Antonio Orpiada, an inmate in Nevada State prison, the answer hinges on whether the prison mailbox rule applies to the filing of his state habeas corpus petition for the purpose of triggering statutory tolling of the Antiterrorism and Effective Death Penalty Act (" AEDPA" ) limitations period. See 28 U.S.C. § 2244(d)(2) (1996). If the mailbox rule does apply, as Orpiada asserts, his state petition is deemed filed on the date he delivered the petition to prison officials for mailing. See Saffold v. Newland, 250 F.3d 1262, 1268 (2000), vacated on other grounds, 536 U.S. 214, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002). If, however, the rule does not apply, the tolling period began on the date the state court clerk received Orpiada's state petition, and the filing of the federal petition exceeds the one-year limitations period by three days. See Artuz v. Bennett, 531 U.S. 4, 8-9, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000).
The combination of Supreme Court and Nevada precedent offers no wiggle room on the answer. We are bound by the Supreme Court's directive to apply state procedural law to determine whether Orpiada's habeas petition was properly filed, including when it was deemed filed. See id . Nevada has squarely rejected the prison mailbox rule for the filing of its state habeas corpus petitions. Gonzales v. State, 118 Nev. 590, 53 P.3d 901, 904 (Nev. 2002). Unfortunately for Orpiada, so too must we in assessing his petition and AEDPA tolling. Consequently, we conclude
that Orpiada's federal petition is time barred.
FACTUAL AND PROCEDURAL BACKGROUND
Following trial in Nevada, a jury convicted Orpiada of two counts of attempted murder and other related offenses. The parties agree that Orpiada's conviction became final on June 2, 2005. On February 6, 2006, the state district court filed Orpiada's pro se state habeas corpus petition. Orpiada signed and dated the petition and certificate of service by mail on February 2, 2006. The state trial court denied the petition. The Supreme Court of Nevada affirmed the trial court's decision by order dated December 10, 2010, and then issued its remittitur on January 5, 2011.
On that same day, January 5, 2011, Orpiada mailed a pro se federal habeas corpus petition to the United States District Court in Nevada. After the district court granted Orpiada's motion for assignment of counsel, counsel filed an amended petition on May 4, 2011. The district court ruled that the amended petition did not relate back to his original pro se petition. The district court then held that the amended petition was untimely because a total of 368 nontolled days had elapsed after Orpiada's conviction became final, exceeding the one-year AEDPA limitations period. The district ...