Omaima Nelson v. Molly Hill ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 22 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OMAIMA AREE NELSON, No. 19-73020
Applicant,
v. MEMORANDUM*
MOLLY HILL, Acting Warden,
Respondent.
Application to File Second or Successive
Petition Under 28 U.S.C. § 2254
Submitted October 19, 2020**
Honolulu, Hawaii
Before: WALLACE, BEA, and BENNETT, Circuit Judges.
Before the court is Omaima Nelson’s application for authorization to file a
second or successive petition for writ of habeas corpus. Nelson, convicted of
second-degree murder in California state court more than twenty-five years ago,
argues now that a constitutional right newly recognized by the Supreme Court in
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
McCoy v. Louisiana, 138 S. Ct. 1500 (2018), was denied to her at trial and is grounds
to afford her habeas relief. Ultimately, however, Nelson’s application is untimely.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a
petitioner may not file a second or successive habeas petition with the district court
unless the court of appeals grants authorization. 28 U.S.C. § 2244(b)(3)(A).
Nelson was found guilty of second-degree murder in California state court in
1993. She has already petitioned for federal habeas relief once. In 2002, Nelson
filed a federal petition for habeas arguing, inter alia, ineffective assistance of counsel
for failing to plead her not guilty by reason of insanity. In 2003, the U.S. District
Court for the Central District of California dismissed the petition because it was
time-barred by the statute of limitations.
Now, seventeen years later, Nelson is applying to the Ninth Circuit for
authorization to file a second habeas petition on the basis of a new constitutional
right recognized by the Supreme Court in 2018. She argues that her Sixth
Amendment rights under McCoy were violated when her trial counsel refused to
plead her not guilty by reason of insanity. In McCoy, the Supreme Court held that a
defendant’s Sixth Amendment right to determine the objective of the defense is
violated if counsel concedes guilt at trial after the defendant unambiguously directs
counsel to maintain innocence. 138 S. Ct. at 1505. But we need not address the
merits of the application.
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Nelson’s petition is time-barred by AEDPA’s statute of limitations. Congress
placed a one-year statute of limitations on the filing of habeas petitions. 28 U.S.C.
§ 2244(d). As is relevant here, a petitioner must file an application for authorization
to file a second or successive petition for writ of habeas corpus within one year of
“the date on which the constitutional right asserted was initially recognized by the
Supreme Court.” 28 U.S.C. § 2244(d)(1)(C). The limitations period may be tolled
if the applicant properly files for post-conviction relief from state court before the
period has expired. 28 U.S.C. § 2244(d)(2); Jiminez v. Rice, 276 F.3d 478, 481–82
(9th Cir. 2001).
The Supreme Court decided McCoy on May 14, 2018. Thus, the deadline for
Nelson to have applied to this court for authorization to file a second or successive
petition for habeas based on the right recognized in McCoy was May 14, 2019.
Nelson did not file her federal application until November 26, 2019, many
months after the limitations period expired. Nelson argues the period should be
tolled because she filed a successive habeas petition with the California Supreme
Court. But Nelson did not file her successive habeas petition with the state until July
31, 2019.1 Nelson may not take advantage of AEDPA’s tolling provisions because
1
Nelson appears to have errantly believed that the one-year limitations period under
Section 2244(d)(1)(C) is augmented by ninety days, confusing the rule that a
judgment is not final under the statute until the expiration of the ninety-day deadline
to seek certiorari from the U.S. Supreme Court. See Whalem/Hunt v. Early, 233
F.3d 1146, 1147 (9th Cir. 2000). However, that rule is not applicable to Section
3
the limitations period had already expired by the time she filed her petition with the
state. Having failed to apply for authorization by the May 14, 2019 deadline or toll
the period of limitations, the statute bars Nelson’s application from consideration.
DENIED.
2244(d)(1)(C), which, under the statute, runs simply from the date the Supreme
Court first recognized the new constitutional right.
4