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Cook v. Kenney

United States District Court, D. Nebraska

September 26, 2014

TODD L. COOK, Petitioner,
v.
MICHAEL KENNEY, Director, and DIANE SABATKA-RINE, Warden, Respondents.

MEMORANDUM AND ORDER

RICHARD G. KOPF, Senior District Judge.

This matter is before the court on Petitioner Todd L. Cook's ("Cook" or "Petitioner") Petition for Writ of Habeas Corpus (Filing No. 1) and Motion to Stay Proceedings (Filing No. 7). Cook argues in his petition that the mandatory life sentence he received in state court violates the Eighth Amendment's prohibition on cruel and unusual punishment. For the reasons explained below, the court finds that Cook's petition was not filed within the one-year limitations period set forth in 28 U.S.C. ยง 2244(d)(1) and must be dismissed, and also that Cook is not entitled to a stay of these proceedings.

I. BACKGROUND

A. Conviction and Direct Appeal

Cook pled guilty to first-degree murder and use of a firearm to commit a felony on November 2, 1995, in the District Court of Madison County, Nebraska ("state district court"). (Filing No. 10-12 at CM/ECF p. 143.) The Nebraska Supreme Court summarized the facts leading to Cook's conviction as follows:

On January 29, 1995, Cook and an accomplice entered a Gas N' Shop convenience store in Norfolk, Nebraska. Cook pointed a 9-mm semiautomatic pistol at Ellen Gill, a clerk in the store, and demanded that she open the cash register. After Cook's accomplice removed approximately $206 from the cash register, Cook demanded that Gill take him to retrieve the videotape used by the store's video surveillance machine. Gill took Cook to the video recorder, and Cook attempted to remove the videotape. When he could not remove the videotape from the recorder, Cook shot the recorder with his pistol. Thinking that he saw Gill move, Cook turned and shot Gill from approximately 2 feet away. The bullet struck Gill in her left hand and her throat, and she died from the gunshot wounds.

State v. Cook, 559 N.W.2d 471, 472 (Neb. 1997) (" Cook I" ). Cook stated in his habeas corpus petition that he was 18 years and 54 days old when he committed this murder. (Filing No. 1 at CM/ECF p. 16.)

The state district court sentenced Cook to life imprisonment for first-degree murder, and a period of not less than 20 nor more than 20 years' imprisonment for use of a firearm to commit a felony. (Filing No. 10-12 at CM/ECF p. 144.) The Nebraska Supreme Court affirmed the state district court's judgment on February 14, 1997, Cook I, 559 N.W.2d at 473, and overruled Cook's motion for rehearing on March 12, 1997 (Filing No. 10-1 at CM/ECF p. 2).

B. Motion for New Trial

Cook filed a motion for new trial and a motion to withdraw guilty pleas in the state district court in 2003. See State v. Cook, No. S-09-360 (Neb. Dec. 11, 2009) (" Cook II ") (discussing procedural history of Cook's state court actions) (opinion available at Filing No. 10-6). The state district court denied Cook's motions and Cook appealed. The State of Nebraska ("State") filed a motion for summary dismissal, arguing the state district court lacked jurisdiction to consider Cook's motions. The Nebraska Supreme Court sustained the State's motion and dismissed Cook's appeal. Id.

C. Post-Conviction Motion and Appeal

Cook filed a verified motion for post-conviction relief in the state district court on December 5, 2008.[1] ( See Filing No. 1 at CM/ECF p. 3.) The state district court denied post-conviction relief on March 20, 2009. The Nebraska Supreme Court affirmed the state district court's judgment on December 11, 2009. See Cook II, No. S-09-360 (opinion available at Filing No. 10-6).

D. Subsequent Post-Conviction Motion and Appeal

Cook filed another motion for post-conviction relief in the state district court on June 3, 2013, in which he raised the issue he now presents in this habeas corpus action (i.e., that his life sentence is unconstitutional). ( See Filing No. 10-12 at CM/ECF pp. 31-61.) The state district court denied relief on August 14, 2013. (Filing No. 10-12 at CM/ECF pp. 137-139.) The Nebraska Supreme ...


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