United States District Court, D. Nebraska
MEMORANDUM AND ORDER
LAURIE SMITH CAMP, Chief District Judge.
This matter is before the court on Respondents Brian Gage and Mike Kenney's ("Respondents") Motion for Summary Judgment (Filing No. 9). Respondents argue Petitioner Jason Davis's ("Davis") Petition for Writ of Habeas Corpus ("petition") is barred by the limitations period set forth in 28 U.S.C. § 2244(d). The court agrees and will dismiss the petition with prejudice.
A. Conviction and Direct Appeal
Davis pled no contest to assault on an officer in the third degree on April 19, 2012, in the Douglas County District Court ("state district court"). The state district court determined Davis was a habitual criminal and sentenced him to a term of imprisonment of 10 to 10 years. (Filing No. 8-2 at CM/ECF pp. 31-32.)
Davis filed a notice of appeal on April 25, 2012. (Id. at CM/ECF 36.) Through counsel, Davis filed a motion in the Nebraska Court of Appeals seeking leave to dismiss the appeal. (Id. at CM/ECF p. 46.) The Nebraska Court of Appeals dismissed Davis's appeal on July 27, 2012, and the Nebraska Supreme Court issued its mandate on September 11, 2012. (Filing No. 8-1 at CM/ECF p. 2.)
B. Postconviction Motion and Appeal
Davis filed a motion for postconviction relief in the state district court on January 22, 2014. (Filing No. 1 at CM/ECF p. 3.) The state district court dismissed the motion for postconviction relief because it was time barred, and Davis did not appeal. (Id. at CM/ECF pp. 3-4.)
Davis filed his petition (Filing No. 1) in this court on September 10, 2014. Respondents filed their Motion for Summary Judgment (Filing No. 9) on January 23, 2015. Davis filed his brief in response (Filing No. 11) on February 27, 2015. Respondents filed their brief in reply (Filing No. 12) on March 3, 2015.
It is undisputed in this case that Davis filed his petition in this court more than one year from the date on which his conviction became final. See 28 U.S.C. § 2244(d)(1) (establishing a one-year limitations period for state prisoners to file for federal habeas relief). The questions the court must consider are whether (1) the limitations period may be subject to equitable tolling; or (2) Davis may be excused from the procedural bar of the statute of limitations under the miscarriage of justice exception.
A. Equitable Tolling
Generally, a litigant seeking equitable tolling must establish two elements: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." ...