Olivas
Olivas v. Neven
Opinion
Lead Opinion
*72 MEMORANDUM **
In April of 2002, Marlon Olivas was convicted, pursuant to a plea agreement, of battery with use of a deadly weapon on a police officer, assault on a police officer with the use of a deadly weapon, and mistreatment of a police animal. On November 29, 2004, Olivas petitioned for writ of habeas corpus in United States District Court for the District of Nevada. The district court denied the petition as untimely pursuant to a motion to dismiss filed by the state. On appeal, Olivas argues that the period of limitation should have been tolled under the relevant statutory provisions.
Excluding the time Olivas spent in state court, the present action was filed 466 days after Olivas’ conviction became final. This is 101 days over the one-year period prescribed by the Antiterrorism and Effective Death Penalty Act. On appeal, Olivas argues that the district court should have tolled the period of limitations until Olivas was able to gain physical access to the swim trunks he was wearing at the time of the incident that led to his arrest. He relies on 28 U.S.C. § 2244 (d)(1)(B) and 28 U.S.C. § 2244 (d)(1)(D). Each provision is discussed in turn.