United States District Court, D. Nebraska
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) and Petitioner’s claims have been
procedurally defaulted. The court agrees and will dismiss the
petition with prejudice.
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.)
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.)
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.
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.)
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.)
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.)
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.)
filed his Petition for Writ of Habeas Corpus on April 22,
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). 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 ...