United States District Court, D. Nebraska
CORDELL A. CUTLER, Petitioner,
BRIAN GAGE, Respondent.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
matter is before the court on Petitioner’s Petition for
Writ of Habeas Corpus (“petition”). (Filing No.
1.) Respondent argues that the 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
January 13, 2004, Petitioner was sentenced to prison after
being convicted of sexual assault, kidnapping, and false
imprisonment. (Filing No. 9-5.) The Nebraska Court
of Appeals affirmed the conviction on January 20, 2005.
(Filing No. 9-1.) Petitioner filed a petition for
further review, which was denied by the Nebraska Supreme
Court on June 8, 2005. (Filing No. 9-1.) The mandate
issued on June 14, 2005. (Filing No. 9-1.)
filed a motion for post-conviction relief on April 9, 2012,
which was later denied by the state district court. (Filing
No. 9-4.) The district court’s decision was
affirmed by the Nebraska Court of Appeals on February 5,
2015, and Petitioner’s request for further review was
denied by the Nebraska Supreme Court on March 11, 2015.
(Filing No. 9-3 at CM/ECF p. 2.)
filed his Petition for Writ of Habeas Corpus on August 24,
2015. (Filing No. 1.)
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 petition for
further review on direct appeal was denied by the Nebraska
Supreme Court on June 8, 2005. (Filing No. 9-1.)
Thus, the statute of limitations began to run on September 6,
2005, which is 90 days after Petitioner’s conviction
became final. 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).
did not file a motion for post-conviction relief until April
9, 2012. Although the filing of a post-conviction motion
typically tolls the limitations period, it did not do so in
this case. By the time Petitioner filed his post-conviction
motion, the entire limitations period had already expired.
See Painter v. State of Iowa, 247 F.3d 1255, 1256
(8th Cir. 2001) (“[T]he 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”). Therefore,
Petitioner’s habeas petition is time-barred.
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 ...