United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on Respondents’ Motion for
Summary Judgment. (Filing No. 11.) Respondents argue 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.
was convicted of two counts of sexual assault of a child.
(Filing No. 6 at CM/ECF p. 1.) The Nebraska Court of Appeals
affirmed the conviction, and Petitioner’s request for
further review was denied on December 22, 2004. (Filing No.
10-1 at CM/ECF p. 2.) The mandate issued on January 10, 2005.
(Filing No. 10-1 at CM/ECF p. 2.)
filed a motion for DNA testing in the District Court of
Douglas County, Nebraska on May 2, 2014. (Filing No. 6 at
CM/ECF p. 68.) The state court denied Petitioner’s
motion on September 9, 2014. (Filing No. 6 at CM/ECF p. 80.)
Petitioner appealed, and the state court judgment was
affirmed on March 2, 2015. (Filing No. 10-1 at CM/ECF p. 4.)
The mandate issued on April 9, 2015. (Filing No. 10-1 at
CM/ECF p. 4.)
filed his habeas petition on August 13, 2015. (Filing No. 1.)
Petitioner filed an amended petition on February 1, 2016.
(Filing No. 6.) Respondents filed a Motion for Summary
Judgment on February 25, 2016. (Filing No. 11.) To date,
Petitioner has not responded to Respondents’ summary
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).
habeas petition is untimely. Petitioner’s request for
further review was denied on December 22, 2004, and the
mandate issued on January 10, 2005. (Filing No. 10-1 at
CM/ECF p. 2.) See Curtiss v. Mount Pleasant Correctional
Facility, 338 F.3d 851, 853 (8th Cir. 2003) (holding
that a judgment becomes 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 writ of certiorari with the
United States Supreme Court). However, Petitioner did not
file his motion for DNA testing until May 2, 2014. It is
well-established that "the time between the date that
direct review of a conviction is completed and the date that
an application for state post-conviction relief is filed
counts against the one-year period." Painter v.
State of Iowa, 247 F.3d 1255, 1256 (8th Cir. 2001).
Therefore, the one-year limitations period expired long
before Petitioner’s habeas petition was filed.
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
than not that, in light of the new evidence, no juror, acting
reasonably, would have voted to find the petitioner guilty
beyond a reasonable doubt. Schlup, 513 U.S. at 324-27.
Petitioner has not pointed to any new evidence indicating
that he is actually innocent.
foregoing reasons, the court will dismiss Petitioner’s
petition with prejudice.
CERTIFICATE OF APPEALABILITY
petitioner cannot appeal an adverse ruling on his petition
for writ of habeas corpus under § 2254 unless he is
granted a certificate of appealability. 28 U.S.C. §
2253(c)(1); 28 U.S.C. § 2253(c)(2); Fed. R. App. P.
22(b)(1). The standards for certificates (1) where the
district court reaches the merits or (2) where the district
court rules on procedural grounds are set for in Slack v.
McDaniel,529 U.S. 473, 484-485 ...