Orpiada v. McDaniel

In states expressly rejecting the prison mailbox rule, tolling of a state habeas corpus petition under the Antiterrorism and Effective Death Penalty will not be allowed if filed in an untimely manner.

On June 2, 2005, Antonio Orpiada’s conviction for two counts of attempted murder and related charges was finalized. On February 2, 2006, Orpiada signed a pro se state habeas corpus petition and mailed it from Nevada State prison. On February 6, 2006, his petition was filed in state court. The trial court denied Orpiada’s petition, the Nevada Supreme Court affirmed the trial court’s ruling and issued its remittitur on January 5, 2010. On January 5, 2011, Orpiada filed a pro se federal habeas corpus petition with the district court in Nevada, then filed an amended petition on May 4, 2011. The district court determined that Orpiada’s petition was untimely because after the conviction finalized, 368 "nontolled days" had passed to the filing in state court. This exceeds the one-year limitations period under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). The district court further held that the prison mailbox rule was not applicable because Nevada bars this rule for state habeas corpus petitions. On appeal, the Ninth Circuit Court found that in order to determine whether Orpiada’s petition was filed in a timely manner, Nevada filing requirements should be applied. The panel held that tolling is not applicable for untimely petitions because the Ninth Circuit Court has never applied tolling pursuant to AEDPA where the petition is filed within a state explicitly rejecting the prison mailbox rule. Accordingly, under Nevada procedural law, Orpiada’s post-conviction habeas petition was not qualified for tolling and therefore not properly filed. AFFIRMED.