NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

MICHAEL PATTERSON, 

Petitioner-Appellant,

 v.

WILLIAM HUTCHINGS; ATTORNEY

GENERAL FOR THE STATE OF

NEVADA, 

Respondents-Appellees.

No. 20-15635

D.C. No. 

2:17-cv-02131-JCM-EJY

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted September 3, 2021

San Francisco, California

Before: SCHROEDER, RAWLINSON, and BYBEE, Circuit Judges.

Appellant Michael Patterson appeals from a ruling by the district court

dismissing his federal habeas petition as untimely. 

FILED

SEP 22 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.
We have appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 & 2253. We

review de novo the district court’s denial of a petition for writ of habeas corpus,

Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003), including denial of the writ

on statute of limitations grounds, Noble v. Adams, 676 F.3d 1180, 1181 (9th Cir.

2012). A district court’s decision to raise sua sponte the issue of timeliness in a

habeas case is reviewed for an abuse of discretion. See Day v. McDonough, 547

U.S. 198, 211 (2006). 

Patterson makes two arguments. First, Patterson contends that the district

court abused its discretion by raising sua sponte the issue of timeliness regarding

his federal petition for habeas corpus after the State miscalculated the statute of

limitations by a single day in its motion to dismiss. Second, he asserts that,

irrespective of the first issue, his direct appeal counsel’s motion for appointment of

counsel for post-conviction habeas proceedings should have qualified as a

“properly filed application for post-conviction or other collateral review” and

tolled the statute of limitations under 28 U.S.C. § 2244. We affirm.

A district court has discretion to raise timeliness issues in habeas cases sua

sponte as long as it (1) “accord[s] the parties fair notice and an opportunity to

present their positions,” (2) “assure[s] itself that the petitioner is not significantly

prejudiced by the delayed focus on the limitation issue,” and (3) “‘determine[s]

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whether the interests of justice would be better served’ by addressing the merits or

by dismissing the petition as time barred.” Day, 547 U.S. at 210–11 (quoting

Granberry v. Greer, 481 U.S. 129, 136 (1987)). Here, the district court provided

Patterson notice and an opportunity to respond, found that the State’s error

amounted to a simple miscalculation that did not prejudice Patterson, and identified

the state and federal interests associated with hearing timely filed petitions. See

Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Accordingly, the

district court did not abuse its discretion when it raised the issue of timeliness.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

provides for tolling of the federal statute of limitations from the moment at which a

petitioner “properly” files an application for post-conviction or other collateral

review until the state post-conviction judgment becomes final upon issuance of the

remittitur. 28 U.S.C. § 2244(d); see Jefferson v. Budge, 419 F.3d 1013, 1015 n.2

(9th Cir. 2005). Determining whether an application is “properly filed” is a matter

of state law. See Zepeda v. Walker, 581 F.3d 1013, 1016 (9th Cir. 2009) (citing

Artuz v. Bennett, 531 U.S. 4, 8 (2000)). As a general matter, the local laws and

rules that determine proper filing often identify such specifics as “the form of the

document.” Artuz, 531 U.S. at 8. And, “motion[s] for appointment of

counsel . . . generally are not direct requests for judicial review of a judgment and

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do not provide a state court with authority to order relief from a judgment.” Wall

v. Kholi, 562 U.S. 545, 556 n.4 (2011). 

Nevada does not provide habeas counsel as a matter of right and requesting

counsel does not start the process of collateral review. Nev. Rev. Stat. § 34.750. 

Rather, any petition for the writ of habeas corpus “must be titled ‘Petition for Writ

of Habeas Corpus (Postconviction)’ and be in substantially the form set forth in

[statute].” Nev. Rev. Stat. § 34.730. Appellant’s motion for appointment of

counsel did neither. Appellant’s motion simply does not qualify as a petition for

the writ of habeas corpus under Nevada law, and nothing in the record or case law

suggests that any Nevada judge would recognize it as such a petition, let alone a

“properly filed” petition. The motion for appointment of counsel, therefore, did

not toll the statute of limitations under AEDPA, and we affirm the district court’s

determination that Appellant’s petition was untimely. 

AFFIRMED.

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