United States District Court, D. Nebraska
JAIME L. HIGEL, Petitioner,
SCOTT R. FRAKES, and DENISE SCROBECKI, Respondents.
MEMORANDUM AND ORDER [*]
Richard G. Kopf Senior United States District Judge
matter is before the court on Petitioner Jaime L. Higel's
Petition for Writ of Habeas Corpus (“habeas
petition”). (Filing No. 1.) Respondents argue
that the habeas petition is barred by the limitations period
set forth in 28 U.S.C. § 2244(d). (Filing
No. 9; Filing No. 13.) The court agrees and
will dismiss the petition with prejudice.
was convicted of two counts of identity theft. (Filing
No. 12-3 at CM/ECF p. 2.) The state district court
sentenced Petitioner to five to six years' imprisonment
for each count and ordered her to pay $2500 in restitution.
(Id. at CM/ECF p. 4.)
August 13, 2014, the Nebraska Court of Appeals affirmed
Petitioner's sentences of imprisonment but vacated her
sentence of restitution and remanded the cause to the state
district court with directions. (Id. at CM/ECF pp.
2, 11.) In an order entered November 10, 2014, the state
district court spread the mandate of the Nebraska Court of
Appeals and determined that Petitioner was unable to pay
restitution. (Filing No. 12-4.) Petitioner did not
appeal from that judgment. (See Filing No. 12-1 at CM/ECF
February 2, 2015, Petitioner filed a motion for
postconviction relief in the state district court.
(Id.) The state district court denied Petitioner
postconviction relief without an evidentiary hearing on June
16, 2015. (Filing No. 12-5 at CM/ECF pp. 1-4.)
17, 2015, Petitioner appealed the state district court's
order denying postconviction relief. (Filing No.
12-6; Filing No. 12-7.) The Nebraska Court of
Appeals dismissed Petitioner's appeal for lack of
jurisdiction on August 13, 2015, because the affidavit filed
in support of her motion to proceed in forma pauperis was not
timely filed. (Filing No. 12-8; Filing No.
filed her habeas petition on June 13, 2016. (Filing No.
1.) Respondents filed a Motion for Summary Judgment,
brief in support, and the relevant state court records.
(Filing No. 9; Filing No. 12; Filing
No. 13.) Petitioner filed a brief in opposition to
Respondents' Motion for Summary Judgment. (Filing No.
15.) Respondents filed a reply brief. (Filing no.
18.) This matter is now fully submitted for disposition.
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). This case concerns only
the first date listed in § 2244(d)(1): “the date
on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such
review[.]” 28 U.S.C. § 2244(d)(1)(A).
did not appeal after the state district court entered its
judgment following remand from the Nebraska Court of
Appeals. The one-year statute of limitations began
running on December 10, 2014, thirty days after the state
district court entered its judgment. See Neb.
Rev. Stat. § 25-1912(1) (West) (a defendant must
file an appeal within thirty days after the district court
enters its judgment); Gonzalez v. Thaler, 132 S.Ct.
641, 653-54 (2012) (upon the expiration of the time for
seeking direct review). On February 2, 2015, Petitioner filed
a motion for postconviction relief, which tolled the statute
of limitations. “The statute of limitations is tolled
while state post-conviction or other collateral review is
pending.” King v. Hobbs, 666 F.3d 1132, 1135
(8th Cir. 2012).
a state postconviction action remains pending during the
appeal period. See Williams v. Bruton, 299 F.3d
981, 983 (8th Cir. 2002). Here, however, the statute of
limitations remained tolled until June 16, 2015, when the
state district court denied Petitioner's postconviction
motion. The statute of limitations was not tolled during the
appeal period, because the Nebraska Court of Appeals found
the appeal untimely. See Evans v. Chavis, 546 U.S.
189, 191 (2006) (holding that a state postconviction
application is “pending” during the interval
between a lower court's adverse determination and the
prisoner's filing of an appeal, “provided that the
filing of the notice of appeal is timely under state
law”). By the time Petitioner filed her motion for
postconviction relief, a total of fifty-four days of the
limitations period had already expired. See
Painter v. 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 postconviction relief is filed counts against the
one-year period”). The statute of limitations began to
run again on June 17, 2015. Petitioner did not file her
habeas petition until June 13, 2016. Petitioner's habeas
petition is untimely.
argues that her postconviction appeal was timely filed
pursuant to Fed. R. App. P. (4)(c) (“prison delivery
rule”) since she deposited her notice of appeal in the
institution's internal mail system on July 13, 2015, and
therefore, her habeas petition is timely. (Filing No.
15.) Whether Petitioner's postconviction appeal was
timely filed is determined by state law, not federal law. In
Nebraska, an appeal is taken by filing a notice of appeal
with the required docket fee or a poverty affidavit in the
office of the clerk of the district court within thirty days
after the district court enters its judgment. See
§ 25-1912; State v. Parmar, 586 N.W.2d 279, 282
(Neb. 1998). Nebraska has declined to adopt the prison
delivery rule. See State v. Smith, 834 N.W.2d 799
(Neb. 2013). The state district court entered its judgment
denying Petitioner postconviction relief on June 16, 2015.
Petitioner had until July 16, 2015, to file her notice of
appeal and poverty affidavit in the office of the clerk
of the district court. She did not file either in the
office of the clerk of the district court until July 17,
2015. (Filing No. 12-6; Filing No.
12-7.) Under Nebraska law, the Nebraska Court of
Appeals correctly dismissed Petitioner's postconviction
appeal for lack of jurisdiction. See Parmar,
supra (a timely filed notice of appeal and docket
fee or poverty affidavit are mandatory and jurisdictional).
Petitioner is not entitled to equitable tolling because she
has not demonstrated that she pursued her rights diligently
or that some extraordinary circumstance prevented her from
seeking habeas relief. Walker v. Norris, 436 F.3d
1026, 1032 (8th Cir. 2006). Petitioner waited nearly a year
to file her habeas petition after the Nebraska Court of
Appeals dismissed her postconviction appeal, and she has not