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Allen v. Frakes

United States District Court, D. Nebraska

March 31, 2015

LLOYD E. ALLEN, Petitioner,
v.
SCOTT FRAKES, Respondent.

MEMORANDUM AND ORDER

LAURIE SMITH CAMP, Chie District Judge.

This matter is before the court on Petitioner Lloyd Allen's ("Allen" or "Petitioner") Petition for Writ of Habeas Corpus. (Filing No. 1.) As set forth below, the court will dismiss the petition with prejudice because it is barred by the relevant statute of limitations.

I. BACKGROUND

A. Conviction and Direct Appeal

On June 21, 2010, the State of Nebraska ("State") filed an information in the Sarpy County District Court ("state district court") charging Allen with terroristic threats and with being a habitual criminal. (Filing No. 18-10 at CM/ECF p. 9.) A jury found Allen guilty of terroristic threats on October 27, 2010. ( Id. at CM/ECF p. 31.) The state district court sentenced Allen to a term of not less than 10 nor more than 20 years' imprisonment based on the conviction and the habitual-criminal enhancement. ( Id. at CM/ECF p. 32.)

Allen appealed. ( Id. at CM/ECF p. 1.) The Nebraska Court of Appeals affirmed Allen's conviction and sentence in a memorandum opinion on February 7, 2012. (Filing No. 18-3 at CM/ECF pp. 1-11.) Thereafter, the Nebraska Supreme Court denied a petition for further review on March 28, 2012. (Filing No. 18-1 at CM/ECF pp. 2-3.)

B. Post-Conviction Proceedings

Allen filed a motion for post-conviction relief in the state district court on July 23, 2012. (Filing No. 18-11 at CM/ECF pp. 20-106.) The state district court denied postconviction relief on August 16, 2012. ( Id. at CM/ECF pp. 126-130.)

On September 4, 2012, Allen filed a "Motion for Extension of Time to File Appeal on Post Conviction Denial" in the state district court. ( Id. at CM/ECF p. 131.) On September 6, 2012, the presiding judge in the state district court advised Allen that he had "no authority to continue [Allen's] appeal time" and that Allen "may have to file something with [the] court of appeals or supreme court." ( Id. at CM/ECF p. 133.)

Allen filed a notice of appeal in the state district court on April 18, 2013. ( Id. at CM/ECF p. 1.) The Nebraska Court of Appeals dismissed the appeal as untimely on May 22, 2013. (Filing No. 18-2 at CM/ECF p. 2.) The Nebraska Supreme Court denied a petition for further review on June 26, 2013, and issued its mandate on July 15, 2013. ( Id. )

C. Habeas Corpus Petition

Allen filed his habeas corpus petition in this court on March 6, 2014. (Filing No. 1.) In response to the petition, Respondent filed an answer, a brief in support of the answer, and the relevant state court records. (Filing Nos. 18, 21, and 22.) Thereafter, Allen filed a brief in support of his petition. (Filing No. 23.)

II. ANALYSIS

A. Date on Which Judgment ...


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