United States District Court, D. Nebraska
SAMUEL L. HILL, Petitioner,
SCOTT R. FRAKES, Dir. N.D.C.S., Respondent.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
matter is before the court on Respondent's Motion for
Summary Judgment (Filing No. 17). Respondent argues
Petitioner's Petition for Writ of Habeas Corpus
(“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.
was convicted of second degree murder and use of a deadly
weapon to commit a felony in the District Court of Douglas
County, Nebraska. (Filing No. 18-3 at CM/ECF p. 2.)
Petitioner was sentenced to thirty to forty-five years'
imprisonment for second degree murder and five to ten
years' imprisonment for use of a deadly weapon.
Nebraska Court of Appeals affirmed Petitioner's
convictions and sentences on June 10, 2003. (Filing No.
18-1; Filing No. 18-3.) Petitioner's
request for further review was denied by the Nebraska Supreme
Court on August 27, 2003. (Filing No. 18-1.)
August 20, 2004, Petitioner filed a motion for postconviction
relief. (Filing No. 18-5.) Petitioner ultimately
filed a third amended motion for postconviction relief on May
27, 2009, which was denied by the state court on October 23,
2009. (Filing No. 18-6 at CM/ECF pp. 3-11; Filing No. 9 at
CM/ECF p. 3.) Petitioner did not appeal from that order.
(Filing No. 18-8.)
filed another motion for postconviction relief on November 8,
2013. (Filing No. 18-7 at CM/ECF pp. 4-7.) The state court
denied Petitioner's motion on February 19, 2014.
(Id. at CM/ECF pp. 20-21.)
January 13, 2015, on postconviction appeal, the Nebraska
Court of Appeals affirmed the state court judgment. (Filing
No. 18-2; Filing No. 18-4.) The Nebraska
Supreme Court denied Petitioner's petition for further
review on May 6, 2015. (Filing No. 18-2.) The
mandate issued on May 26, 2015. (Id.)
filed his habeas petition in this court on May 25, 2016.
(Filing No. 9.)
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
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review; (B) the date on which the impediment to
filing an application created by State action in violation of
the Constitution or laws of the United States is removed, if
the applicant was prevented from filing such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2244(d)(1). Petitioner has not responded to
Respondent's summary judgment motion. However, there is
no doubt that the habeas petition is time-barred.
petition for further review on direct appeal was denied on
August 27, 2003. Thus, the state court judgment became final,
and the statute of limitations began to run, on November 25,
2003. 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 ...