United States District Court, D. Nebraska
ANTHONY W. GARDNER, Petitioner,
STATE OF NEBRASKA, 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. 12.) Respondent argues
Petitioner Anthony W. Gardner's Petition for Writ of
Habeas Corpus (Filing No. 1) must be dismissed
because it 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.
Conviction and Direct Appeal
was convicted of possession of a deadly weapon by a
prohibited person and burglary on January 14, 2015, following
his guilty pleas in the Morrill County District Court.
(Filing No. 13-2 at CM/ECF pp. 1-3.) The state
district court sentenced Gardner to concurrent sentences of
10 to 20 years' imprisonment for possession of a deadly
weapon and 3 to 5 years' for burglary. (Id. at
CM/ECF pp. 6-7.) On August 14, 2015, the Nebraska Court of
Appeals affirmed Gardner's convictions and sentences on
direct appeal. (Filing No. 13-1 at CM/ECF p. 2.)
Gardner did not petition the Nebraska Supreme Court for
further review. (Id.)
November 17, 2015, Gardner filed a verified motion for
postconviction relief in the state district court.
(Filing No. 13-3 at CM/ECF p. 3, 6-11.) On
December 22, 2015, the state district court denied Gardner
postconviction relief without an evidentiary hearing.
(Id.) Gardner did not appeal the order of the state
filed his Petition for Writ of Habeas Corpus (Filing No.
1) in this court on December 23, 2016. Thereafter,
Respondent moved for summary judgment (Filing No.
12), arguing the habeas petition is barred by the
statute of limitations. Respondent filed a Notice of
Submission because Gardner failed to file a response to its
summary judgment motion. This matter is fully submitted for
One-Year Limitations Period
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).
“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)
(citing 28 U.S.C. § 2244(d)(2)). A state postconviction
action remains pending during the appeal period, even if the
prisoner does not appeal. See Streu v.
Dormire, 557 F.3d 960, 966 (8th Cir. 2009) (citing
Williams v. Bruton, 299 F.3d 981, 983 (8th Cir.
Gardner's state court judgment became final on September
13, 2015, the date on which Gardner's time for pursuing
review in the Nebraska Supreme Court expired. See
Gonzalez v. Thaler, 565 U.S. 134, 150 (2012)
(holding that, for a state prisoner who does not seek review
in a State's highest court, the judgment becomes
“final” for purposes of § 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 and memorandum brief in support must be
filed within 30 days after the release of the opinion of the
Court of Appeals).
statute of limitations was tolled during the pendency of
Gardner's state postconviction action from November 17,
2015, until January 21, 2016. Gardner filed his motion for
postconviction relief 65 days after his judgment became final
on September 13, 2015. Another 337 days ran between January
21, 2016, and December 23, 2016, when Gardner filed his
habeas petition. Gardner's habeas petition is, therefore,
untimely under 28 U.S.C. § ...