United States District Court, D. Nebraska
CORY C. BEWLEY, Petitioner,
FRED BRITTEN, and THE ATTORNEY GENERAL OF THE STATE OF NEBRASKA, Respondents.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
matter is before the court on Respondents' Motion for
Summary Judgment. (Filing No. 11.) Respondents argue
Petitioner Cory C. Bewley'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
Conviction and Direct Appeal
was convicted of second degree murder following a guilty plea
in the Douglas County District Court. (Filing No. 9-2 at
CM/ECF pp. 1-5.) The state district court sentenced Bewley to
40 to 60 years' imprisonment. (Id. at CM/ECF pp.
5-6.) On June 6, 2014, the Nebraska Court of Appeals affirmed
Bewley's conviction and sentence on direct appeal.
(Filing No. 9-1 at CM/ECF p. 2.) On July 18, 2014,
the Nebraska Supreme Court denied Bewley's petition for
further review. (Id.)
14, 2016, Bewley filed a verified motion for postconviction
relief in the state district court. (Filing No. 9-4 at CM/ECF
p. 1.) On August 17, 2016, the state district court denied
Bewley's motion as barred by the one-year limitations
period under Neb. Rev. Stat. § 29-3001(4). (Id.
at CM/ECF pp. 1-2.) Bewley did not appeal the order of the
state district court. (Filing No. 1 at CM/ECF p. 2.)
filed his Petition for Writ of Habeas Corpus (Filing No. 1)
in this court on January 23, 2017. Thereafter, Respondents
moved for summary judgment (Filing No. 11), arguing the
habeas petition is barred by the statute of limitations
(Filing No. 12). Respondents filed a Notice of No Response
(Filing No. 13) because Bewley failed to file a response to
their summary judgment motion. This matter is fully submitted
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)).
Petitioner's conviction became final on October 16, 2014,
which is ninety days after the Nebraska Supreme Court
affirmed Petitioner's conviction and sentence on direct
appeal. See Gonzalez v. Thaler, 132 S.Ct. 641,
653-54 (2012) (holding that, for petitioners who do not
pursue direct review all the way to the United States Supreme
Court, a judgment becomes final “when the time for
pursuing direct review in [the Supreme Court], or in state
court, expires.”); King, 666 F.3d at 1135
(“If the Supreme Court has jurisdiction to review the
direct appeal, the judgment becomes final ninety days after
the conclusion of the prisoner's direct criminal appeals
in the state system.”) (citing Sup. Ct. R. 13.1).
Accordingly, the one-year limitations period began to run
from October 16, 2014.
filing of his motion for postconviction relief in state
district court on June 14, 2016, did not toll the limitations
period because it had already expired. See Painter v.
Iowa, 247 F.3d 1255, 1256 (8th Cir. 2001) (holding
“the time between the date that direct review of a
conviction is completed and the date that an application for
state post-conviction relief is filed counts against the
one-year period”). Thus, Petitioner had until October
16, 2015, to file ...