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Gardner v. State

United States District Court, D. Nebraska

June 23, 2017

ANTHONY W. GARDNER, Petitioner,
v.
STATE OF NEBRASKA, 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. 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.

         I. BACKGROUND

         A. Conviction and Direct Appeal

         Gardner 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.)

         B. Postconviction Motion

         On 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 district court.

         C. Habeas Petition

         Gardner 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 disposition.

         II. ANALYSIS

         A. One-Year Limitations Period

         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. 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. 2002)).[1]

         Here, 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).

         The 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. § ...


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