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). The
court agrees and will dismiss the petition with prejudice.
2009, Petitioner was convicted in the District Court of
Lancaster County, Nebraska of two counts of terroristic
threats, two counts of use of a weapon to commit a felony,
one count of felon in possession of a deadly weapon, and one
count of burglary. (Filing No. 11-6.) Petitioner filed a
direct appeal, and his convictions were affirmed by the
Nebraska Court of Appeals on February 22, 2011. Petitioner
did not file a petition for further review. (Filing No.
filed a motion for postconviction relief on June 24, 2011.
(Filing No. 11-4.) The state district court denied
Petitioner's motion, and the denial was affirmed by the
Nebraska Court of Appeals. On April 9, 2014, the Nebraska
Supreme Court denied Petitioner's petition for further
review. (Filing No. 11-2.) The mandate issued on April 22,
filed his habeas petition in this court on April 20, 2016.
(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, there is no doubt
that Petitioner filed his petition for federal habeas relief
more than one year from any of these four dates.
statute of limitations relating to Petitioner's
convictions began running on March 24, 2011, which is 30 days
after the Nebraska Court of Appeals affirmed Petitioner's
conviction on direct appeal. Gonzalez v. Thaler, 132
S.Ct. 641 (2012) (holding that when a state prisoner does not
seek review in a State's highest court, the judgment
becomes final for purposes of 28 U.S.C. § 2244(d)(1)(A)
on the date that the time for seeking such review expires);
Neb. Ct. R. App. P. § 2-102(F)(1) (stating that a
petition for further review must be filed within 30 days
after the release of the opinion of the Court of Appeals).
filed a motion for postconviction relief on June 24, 2011,
which tolled the statute of limitations. Still, the time
between March 24, 2011 and the filing of the postconviction
motion on June 24, 2011, counts toward the habeas limitations
period. 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”). The denial of
Petitioner's postconviction motion was affirmed by the
Nebraska Court of Appeals, and the Nebraska Supreme Court
denied Petitioner's request for further review on April
9, 2014. (Filing No. 11-2.) The mandate issued on April 22,
2014. (Id.) Petitioner filed his habeas petition on
April 20, 2016. (Filing No. 1.) Thus, Petitioner did not file
his habeas petition until approximately two years after the
postconviction action concluded. Clearly, Petitioner's
claims are time-barred.
did not respond to Respondent's summary judgment motion.
Therefore, there has been no argument that Petitioner is
entitled to equitable tolling or the protections of the
miscarriage of justice exception. See Walker v.
Norris, 436 F.3d 1026, 1032 (8th Cir. 2006);
McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013).
The court sees no grounds for affording such relief.
Accordingly, Petitioner's habeas petition will be
dismissed with prejudice.
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 (2000). I have applied
the appropriate standard and determined Petitioner is not
entitled to a certificate of appealability.
ORDERED that Petitioner's petition is dismissed with
prejudice, and the court will not issue a certificate of
appealability in this matter. The court will enter ...