Smart v. Royal ( 2024 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 JONATHAN C. SMART, Case No. 3:24-cv-00355-MMD-CSD 7 Petitioner, ORDER v. 8 TERRY ROYAL, et al., 9 Respondents. 10 11 I. SUMMARY 12 Pro se Petitioner Jonathan C. Smart filed a Petition for Writ of Habeas Corpus 13 under 28 U.S.C. § 2254. (ECF No. 1-1 (“Petition”).) Following a review of the Petition, the 14 Court directed Smart to show cause why his Petition should not be dismissed as untimely 15 and/or wholly unexhausted. (ECF No. 10.) Smart timely responded. (ECF No. 11.) For 16 the reasons discussed below, the Court dismisses the Petition with prejudice. 17 II. DISCUSSION 18 The Court previously determined that Smart filed his Petition one year and three 19 months after his limitations period expired. (ECF No. 10 at 3.) Smart does not dispute this 20 finding. Rather, in response to the order to show cause, Smart states the following: “The 21 untimely question does not excuse the courts ‘backing’ to a wrongful conviction, of the 22 ‘due process clause’ as a pre-trial detainee.” (ECF No. 11 at 1.) Instead of attempting to 23 demonstrate that he is entitled to equitable tolling, statutory tolling, or delayed accrual1, 24 Smart argues that the Court should review his Petition regardless of its untimeliness. This 25 is nonresponsive to the order to show cause. The Court finds the Petition is untimely. 26 1It appears that Smart may be arguing that he is actually innocent. (ECF No. 11 at 27 1.) In this regard, Smart questions how the victim’s testimony could be considered under oath if he was taking medication at the time. (Id.) This fails to meet the standard for 28 showing actual innocence. See Bousley v. United States, 523 U.S. 614, 623 (1998) 1 The Court also previously determined that Smart’s sole asserted ground for relief— 2 that his due process rights were violated because he should have been charged with a 3 misdemeanor, not a felony—was not raised in his direct appeal before the Nevada 4 appellate courts,2 meaning that his Petition is unexhausted. (ECF No. 10 at 5.) In 5 response, Smart argues the facts of his case and explains, “[a]ll appeal process are still 6 available, if this court does not grant [him] habeas relief.” (ECF No. 11 at 1.) This is also 7 nonresponsive to the order to show cause, so this Court also finds that the Petition is 8 unexhausted. 9 Accordingly, the Court dismisses the Petition. The Court previously deferred ruling 10 on Smart’s motion for appointment of counsel (ECF No. 5), and now denies that motion 11 as moot given the dismissal. 12 III. CONCLUSION 13 It is therefore ordered that Smart’s Petition (ECF No. 1-1) is dismissed as untimely 14 and wholly unexhausted. 15 It is further ordered that Petitioner’s motion for appointment of counsel (ECF No. 16 5) is denied as moot. 17 It is further ordered that a certificate of appealability is denied, as jurists of reason 18 would not find dismissal of the Petition for the reasons stated herein to be debatable or 19 wrong. 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 27 28 2Notably, Smart did not file a state habeas petition. 1 The Clerk of Court is directed to (1) file the Petition (ECF No. 1-1); (2) add Nevada 2 || Attorney General Aaron D. Ford as counsel for Respondents; (3) informally serve the 3 || Nevada Attorney General with the Petition (ECF No. 1-1), this Order, and all other filings 4 || in this matter by sending notices of electronic filing to the Nevada Attorney General’s 5 || office; (4) enter final judgment; and (5) close this case. 6 DATED THIS 14! Day of November 2024. 8 ee MIRANDA M. DU 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3No response is required from Respondents other than to respond to any orders of a reviewing court.