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Sing v. Frakes

United States District Court, D. Nebraska

June 13, 2016

DANNY SING, Petitioner,
v.
SCOTT FRAKES, Director of the Nebraska Department of Corrections, Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         This 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) and Petitioner’s claims have been procedurally defaulted. The court agrees and will dismiss the petition with prejudice.

         I. BACKGROUND

         On January 25, 2007, Petitioner was convicted by a jury in the District Court of Douglas County, Nebraska, of first degree murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a felon. (Filing No. 9-15 at CM/ECF pp. 59-62, 98.) Petitioner was sentenced to life in prison for first-degree murder, a consecutive term of 5 to 10 years in prison for use of a deadly weapon to commit a felony, and a concurrent term of 5 to 10 years in prison for possession of a deadly weapon by a felon. (Filing No. 9-15 at CM/ECF p. 100.)

         Petitioner filed a direct appeal of his convictions and sentences to the Nebraska Supreme Court. (Filing No. 9-5); State v. Sing, 275 Neb. 391, 746 N.W.2d 690 (2008). Petitioner alleged that the evidence was insufficient to support the conviction for first degree murder and that the district court erred in sustaining the State’s motion in limine regarding the victim’s alleged gang affiliation. (Filing No. 9-5 at CM/ECF pp. 5-7.) In a written opinion, the supreme court rejected Petitioner’s claims, but modified his sentences regarding credit for time served. (Id. at CM/ECF pp. 5-8.) The opinion issued on April 4, 2008. (Id. at CM/ECF p. 1.)

         Petitioner filed a motion for post-conviction relief in the state district court on February 10, 2009, alleging prosecutorial misconduct, error in sustaining the motion in limine discussed on direct appeal, insufficient evidence to support the first degree murder conviction, and various claims of ineffective assistance of trial counsel. (Filing No. 9-16 at CM/ECF pp. 17-33.) Post-conviction counsel later filed an amended post-conviction motion, alleging that Petitioner’s trial counsel was ineffective for failing to obtain a mental health evaluation and failing to retain a firearms expert. (Filing No. 9-16 at CM/ECF pp. 8-11.) The state district court denied Petitioner’s post-conviction claims without an evidentiary hearing. (Filing No. 9-16 at CM/ECF pp. 47-52.)

         Petitioner appealed, and alleged that the state district court abused its discretion when it dismissed the post-conviction motion without holding an evidentiary hearing on his ineffective assistance of counsel claims. (Filing No. 9-6 at CM/ECF pp. 4-5.) The Nebraska Supreme Court entered a written opinion on January 27, 2011, rejecting Petitioner’s argument and affirming the district court opinion. The supreme court determined that Petitioner’s “motion for postconviction relief did not contain factual allegations which, if proved, would constitute an infringement of [Petitioner’s] rights under the Nebraska or federal Constitution.” (Filing No. 9-6 at CM/ECF p. 2.)

         On October 22, 2010, while his appeal was pending in the supreme court, Petitioner filed a “verified petition to vacate or modify” in the state district court, requesting that the district court vacate or modify its order denying him post-conviction relief. (Filing No. 9-17 at CM/ECF pp. 15-27.) Petitioner asserted that newly discovered evidence in the form of a firearms expert report demonstrated that Petitioner’s gun accidently discharged. The state district court denied the verified petition to vacate or modify on November 1, 2010, finding that the court did not have jurisdiction to consider the merits because the matter was on appeal before the supreme court. (Filing No. 9-17 at CM/ECF p. 43.)

         On February 15, 2011, Petitioner filed a “verified complaint to vacate or modify judgment for newly discovered material evidence.” (Filing No. 9-17 at CM/ECF pp. 44-51, 152.) Again, Petitioner argued that the firearms expert report showed that the trajectory of a gunshot fired by Petitioner was at an upward angle and that the shooting was accidental. (Id.) The district court dismissed Petitioner’s motion on March 1, 2011, finding that (1) the court did not have authority to modify the final order denying post-conviction relief because it had been affirmed on appeal; (2) Petitioner’s claims were not newly discovered in that they could have been presented previously; and (3) the motion was procedurally barred as a successive post-conviction motion. (Filing No. 9-17 at CM/ECF pp. 163-64.) The Nebraska Supreme Court summarily affirmed the district court’s decision on September 14, 2011. (Filing No. 9-3 at CM/ECF p. 2.) Petitioner filed a petition for writ of certiorari in the United States Supreme Court, which was denied on February 24, 2012. (Id.)

         On October 4, 2013, Petitioner filed a “verified motion for 2nd postconviction relief.” (Filing No. 10-1 at CM/ECF pp. 12-22.) Petitioner argued that the jury was wrongfully instructed on second degree murder and manslaughter pursuant to State v. Smith, 282 Neb. 720, 806 N.W.2d 383 (2011) and State v. Trice, 286 Neb. 183, 835 N.W.2d 667 (2013). The district court denied Petitioner’s motion without an evidentiary hearing on April 23, 2014, finding the motion barred by the limitation period set forth in Neb. Rev. Stat. § 29-3001(4). (Filing No. 10-1 at CM/ECF pp. 25-27.) The Nebraska Supreme Court summarily affirmed the state district court’s judgment on January 7, 2015. (Filing No. 9-4 at CM/ECF p. 2.)

         Petitioner filed his Petition for Writ of Habeas Corpus on April 22, 2015. (Filing No. 1.)

         II. ANALYSIS

         1.Statute of Limitations

         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). Here, it does not appear that Petitioner disputes that he filed his petition for federal habeas relief more than one year from any of these four dates. Instead, Petitioner maintains that the limitations period is subject to ...


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