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Bewley v. Britten

United States District Court, D. Nebraska

July 31, 2017

CORY C. BEWLEY, Petitioner,
v.
FRED BRITTEN, and THE ATTORNEY GENERAL OF THE STATE OF NEBRASKA, Respondents.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         This 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 prejudice.

         I. BACKGROUND

         A. Conviction and Direct Appeal

         Bewley 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.)

         B. Postconviction Motion

         On June 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.)

         C. Habeas Petition

         Bewley 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 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)).

         Here, 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.

         Petitioner's 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 ...


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