United States District Court, D. Nebraska
DANIEL R. MANGIAMELI, Petitioner,
MARIO PEART, Respondent.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
matter is before the court on Respondent’s Motion for
Summary Judgment. (Filing No. 5.) Respondent argues
that Petitioner’s Petition for Writ of Habeas Corpus
("petition") (Filing No. 1) should be
dismissed because it 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.
February 4, 2013, Petitioner was sentenced to 195 to 310
years imprisonment for multiple sexual assault charges.
(Filing Nos. 4-2, 4-3, 4-4, and
4-5.) Petitioner did not file a direct appeal.
(Filing No. 4-6 at CM/ECF pp. 1-2.)
filed a motion for post-conviction relief on March 4, 2014.
(Filing No. 4-1.) The post-conviction motion was
denied on September 23, 2014. (Filing No. 4-6 at CM/ECF
p. 7.) Petitioner did not appeal the order denying his
request for post-conviction relief. (Filing No. 4.)
filed his Petition for Writ of Habeas Corpus on July 27,
2015. (Filing No. 1.)
March 30, 2016, Petitioner filed a "Motion to Cancel
Proceedings, " essentially requesting that the court
dismiss his habeas petition without prejudice. (Filing No.
14.) Respondent objected, arguing that Respondent
was entitled to a dismissal with prejudice because
Petitioner’s claims are time-barred. (Filing No.
15.) On or about April 11, 2016, Petitioner
responded to Respondent’s objection, asserting that he
would "try" to respond to Respondent’s Motion
for Summary Judgment. (Filing No. 16.) On April 14,
2016, the court denied Petitioner’s Motion to Cancel
Proceedings and, in doing so, gave Petitioner until May 16,
2016 to respond to Respondent’s Motion for Summary
Judgment. (Filing No. 17.)
16, 2016, Petitioner filed a response to the summary judgment
motion. (Filing No. 18.) The response consisted of
two parts, which were sent in individual mailings. The
response stated, in part, that "[i]t will be in my Part
3 that I hope to express what you may want. I might be late,
but I will have something. I’m in the process of doing
so. But if [I] can’t then Part 1 and Part 2 is all I
have." (Filing No. 18 at CM/ECF p. 1.) The
response further stated that he would send Part 3 within ten
days. (Filing No. 18 at CM/ECF p. 12.) To date, the
court has not received any further correspondence from
19, 2016, Respondent notified the court that it would not
file a reply to Petitioner’s response to the summary
judgment motion. (Filing No. 19.)
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).
Petitioner apparently does not dispute, and there is
otherwise no doubt, that his petition for federal habeas
relief is untimely. Petitioner was sentenced on February 4,
2013, and Petitioner did not file a direct appeal. Thus,
Petitioner’s state court judgment became final
thirty-days after the sentencing order was entered. See
State v. Canaday, 263 Neb. 566, 579-80, 641 N.W.2d 13,
24 (2002) ("In a criminal case, the trial court must
pronounce sentence before a criminal conviction constitutes a
final, appealable order"). Petitioner did not file a
motion for post-conviction relief until March 4, 2014, at
which time the limitations period was tolled. However, by the
time the post-conviction motion was filed, almost the entire
habeas limitations period had elapsed. The post-conviction
motion was denied on September 23, 2014, and Petitioner did
not appeal. (Filing No. 4-6 at CM/ECF pp. 1, 9.)
Petitioner did not file his Petition for Writ of Habeas
Corpus until July 27, 2015. (Filing No. 1.)
has not explained why he should be excused from the
procedural bar of the statute of limitations, and the court
finds no basis for doing so. Petitioner is not entitled to
equitable tolling because he has not demonstrated that he
pursued his rights diligently or that some extraordinary
circumstance prevented him from seeking habeas relief.
Walker v. Norris, 436 F.3d 1026, 1032 (8th Cir.
2006). Moreover, Petitioner is not entitled to the protection
of the miscarriage of justice exception. In McQuiggin v.
Perkins, 133 S.Ct. 1924, 1928 (2013), the Supreme Court
held that a habeas petitioner who can show actual innocence
under the rigorous standard of Schlup v. Delo, 513
U.S. 298 (1995), is excused from the procedural bar of the
statute of limitations under the miscarriage of justice
exception. A habeas petitioner, who seeks to overcome the
one-year statute of limitations in § 2244(d)(1) upon a
showing of "actual innocence, " must support his
allegations with "new, reliable evidence" that was
not presented at trial and must show that it was more likely