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Harden v. Gage

United States District Court, D. Nebraska

September 2, 2014

ROBERT HARDEN, Petitioner,
v.
BRIAN GAGE, Warden, et al., Respondents.

AMENDED MEMORANDUM AND ORDER

LAURIE SMITH CAMP, Chief District Judge.

This matter is before the Court on Respondents' Motion for Summary Judgment (Filing No. 13). Respondents argue Petitioner Robert Harden's ("Harden") Petition for Writ of Habeas Corpus (Filing No. 1) must be dismissed because it is barred by the limitations period set forth in 28 U.S.C. ยง 2244(d). For the reasons discussed below, the Court agrees that Harden's habeas corpus petition is barred by the applicable limitations period.

I. BACKGROUND

A. Conviction and Direct Appeal

On December 5, 2006, a jury in the Douglas County District Court ("state district court") convicted Harden of criminal conspiracy to commit first degree murder. The state district court sentenced Harden to a period of 30 to 40 years' imprisonment. (Filing No. 12-5 at ECF 4.) Harden appealed.

The Nebraska Court of Appeals affirmed the state district court's judgment on February 5, 2008. The Nebraska Supreme Court denied Harden's petition for further review on March 12, 2008, and issued a mandate on March 25, 2008. (Filing No. 12-1 at ECF 2.)

B. Post-Conviction Motion and Appeal

On March 27, 2008, Harden filed a motion for post-conviction relief in the state district court. The state district court held a hearing on the motion, and later denied relief on October 28, 2009. (Filing No. 12-6 at ECF 36-38.) Harden appealed.

The Nebraska Court of Appeals affirmed the state district court's judgment on July 6, 2010. The Nebraska Supreme Court denied Harden's petition for further review on August 25, 2010, and issued a mandate on September 9, 2010. (Filing No. 12-2 at ECF 2.)

C. First Habeas Corpus Petition

Harden filed his first habeas corpus petition in this Court on June 6, 2011. (Case No. 4:11CV3084, Filing No. 1.) In response to the petition, Respondents filed their answer, brief, and the relevant state court records. (Case No. 4:11CV3084, Filing Nos. 19, 23, and 24.) Harden responded to these submissions by moving to dismiss his petition. ( See Case No. 4:11CV3084, Filing Nos. 26 and 27.) Respondents did not object. On November 7, 2011, this Court dismissed Harden's petition without prejudice. (Case No. 4:11CV3084, Filing No. 28.)

D. Second Post-Conviction Motion and Appeal

On March 28, 2012, Harden filed an "Application for Second Post-Conviction Relief" in the state district court. The state district court denied the application on April 2, 2012. (Filing No. 12-7 at CM/ECF pp. 1-21.) Harden appealed.

The Nebraska Court of Appeals affirmed the state district court's judgment on July 25, 2012. The Nebraska Supreme Court denied Harden's petition for further review on September 13, 2012, and issued a ...


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