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Neal v. Frakes

United States District Court, D. Nebraska

October 21, 2015

ALONZO NEAL, Petitioner,
v.
SCOTT R. FRAKES, Respondent.

MEMORANDUM AND ORDER

RICHARD G. KOPF, Senior District Judge.

This matter is before the court on Respondent's Motion for Summary Judgment (Filing No. 13). Respondent argues Petitioner Alonzo Neal's 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. § 2244(d). For the reasons discussed below, the court agrees.

I. BACKGROUND

A. Conviction and Direct Appeal

Neal was convicted of second degree murder and use of a deadly weapon to commit a felony on November 3, 2003, following a bench trial in the Douglas County District Court ("state district court"). (Filing No. 14-3 at CM/ECF p. 1.) The state district court sentenced Neal to 25 to 35 years' imprisonment on the murder charge and 20 to 20 years' imprisonment on the weapon charge. (Filing No. 14-3 at CM/ECF p. 2.) Neal appealed to the Nebraska Supreme Court, which denied relief on September 22, 2004. (Filing No. 14-1 at CM/ECF p. 2.)

B. Postconviction Motion and Appeal

Neal filed a verified motion for postconviction relief on June 9, 2009. (Filing No. 14-4 at CM/ECF pp. 1-20.) The state district court denied the motion on February 9, 2010. (Filing No. 14-4 at CM/ECF pp. 21-27.)

Neal appealed the denial of postconviction relief to Nebraska's appellate courts. The Nebraska Court of Appeals denied relief on September 23, 2010. (Filing No. 14-2 at CM/ECF p. 2.) The Nebraska Supreme Court denied Neal's petition for further review on January 19, 2011, and issued its mandate on February 2, 2011. (Filing No. 14-2 at CM/ECF p. 2.)

C. Petition

Neal filed his habeas corpus petition (Filing No. 1) in this court on November 13, 2014. Thereafter, Respondent moved for summary judgment (Filing No. 13), arguing the petition is barred by the statute of limitations. Neal filed a brief (Filing No. 19) in opposition to Respondent's motion, and Respondent filed a reply brief (Filing No. 20). This matter is fully submitted for disposition.

II. ANALYSIS

A. One-Year Limitations Period

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 110 Stat. 1214, establishes a one-year limitations period for state prisoners to file for federal habeas relief that runs from the latest of four specified dates. 28 U.S.C. § 2244(d)(1). This case concerns only the first date listed in § 2244(d)(1): "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review[.]" 28 U.S.C. § 2244(d)(1)(A). "The statute of limitations is tolled while state post-conviction or other collateral review is pending." King v. Hobbs, 666 F.3d 1132, 1135 (8th Cir. 2012) (citing 28 U.S.C. § 2244(d)(2)).

Here, Neal's state court judgment became final on December 21, 2004, which is 90 days after the Nebraska Supreme Court affirmed his convictions and sentences. Curtiss v. Mount Pleasant Corr. Facility, 338 F.3d 851, 853 (8th Cir. 2003) (holding that a judgment is final, under 28 U.S.C. § 2244(d)(1)(A), at the conclusion of all direct criminal appeals in the state system followed by the expiration of the 90 days for filing a petition for a writ of certiorari with the United States Supreme Court). ...


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