Appeal from the District Court for Douglas County: GREGORY M. SCHATZ, Judge.
Keith M. Huggins, Pro se.
Jon Bruning, Attorney General, and Stacy M. Foust for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, and MILLER-LERMAN, JJ. CASSEL, J., not participating.
NATURE OF CASE
Keith M. Huggins appeals the order of the district court for Douglas County which dismissed his motion for postconviction relief without an evidentiary hearing on the basis that the motion was untimely under the 1-year limitation period set [291 Neb. 444] forth in Neb. Rev. Stat. § 29-3001(4) (Cum. Supp. 2014) of the postconviction act. The court determined that the limitation period began to run upon the issuance of the mandate from Huggins' direct appeal in the Nebraska appellate courts and that Huggins did not file his motion within 1 year after such date. Huggins argues that the limitation period did not begin to run until the time for him to file a petition for a writ of certiorari to the U.S. Supreme Court had expired and that therefore his postconviction motion was timely filed. He alternatively argues that the limitation period should have been tolled during a period when he was in federal custody and not in the custody of the State of Nebraska. We reject Huggins' arguments and agree with the court that Huggins' motion was not timely. We therefore affirm the district court's dismissal of the postconviction motion.
STATEMENT OF FACTS
In 2011, Huggins entered a plea of no contest to second degree murder. He filed two separate motions to withdraw his plea, and the district court denied both motions. The court sentenced Huggins to imprisonment for 40 to 40 years.
The Nebraska Court of Appeals affirmed Huggins' conviction and sentence in a memorandum opinion, State v. Huggins, No. A-11-570, 2012 WL 3030780 (Neb.App. July 24, 2012) (selected for posting to court Web site). Huggins petitioned this court for further review, and we denied further review on August 30. Huggins did not file a petition for a writ of certiorari. The Court of Appeals issued the mandate on September 17.
On November 27, 2013, Huggins filed a pro se motion for postconviction relief in which he raised various claims of ineffective assistance of counsel. In the State's response filed January 30, 2014, it requested that Huggins' motion be dismissed without an evidentiary hearing, because the motion was untimely under § 29-3001(4). Section 29-3001(4) of the Nebraska Postconviction Act provides as follows:
[291 Neb. 445] A one-year period of limitation shall apply to the filing of a verified motion for postconviction relief. The one-year limitation period shall run from the later of:
(a) The date the judgment of conviction became final by the conclusion of a direct appeal or the expiration of the time for filing a direct appeal;
(b) The date on which the factual predicate of the constitutional claim or claims alleged could have been discovered through the exercise of due diligence;
(c) The date on which an impediment created by state action, in violation of the Constitution of the United States or the Constitution of Nebraska or any law of this state, is removed, if the prisoner was prevented from filing a verified motion by such state action;
(d) The date on which a constitutional claim asserted was initially recognized by the Supreme Court of the United States or the Nebraska Supreme Court, if the newly recognized right has been made applicable ...