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Hill v. Frakes

United States District Court, D. Nebraska

November 8, 2016

SAMUEL L. HILL, Petitioner,
v.
SCOTT R. FRAKES, Dir. N.D.C.S., Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         This 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.

         I. BACKGROUND

         Petitioner 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. (Id.)

         The 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.)

         On 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.)

         Petitioner 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.)

         On 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.)

         Petitioner filed his habeas petition in this court on May 25, 2016. (Filing No. 9.)

         II. ANALYSIS

         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:

(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.

         Petitioner's 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. ยง 2244(d)(1)(A) at the conclusion of all direct criminal appeals in the state system ...


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