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Rice v. Hansen

United States District Court, D. Nebraska

September 27, 2017

MARK RICE, Petitioner,
v.
BRAD HANSEN, Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         Mark Rice (Rice or Petitioner) has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Respondent moves for summary judgment, based upon an index of evidence setting forth the underlying files and records, arguing that the petition is time barred. I agree and will dismiss the petition with prejudice. Briefly, my reasons for doing so are set forth below.

         Undisputed Material Facts

         1. On February 19, 2013, in the District Court of Douglas County, Nebraska, a jury found Petitioner Mark Rice guilty of voluntary manslaughter, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a prohibited person. (Filing no. 9-5 at CM/ECF p. 1.)

         2. The state district court sentenced Rice to consecutive prison sentences of 20 to 20 years for voluntary manslaughter, 10 to 20 years for use of a deadly weapon to commit a felony, and 10 to 10 years for possession of a deadly weapon by a prohibited person. (Id. at CM/ECF pp. 2-3.)

         3. On direct appeal, the Nebraska Court of Appeals affirmed Rice's convictions and sentences, the Nebraska Supreme Court denied Rice's petition for further review, and the mandate was issued on April 30, 2014. (Filing no. 9-1 at CM/ECF p. 2.) Rice petitioned the U.S. Supreme Court for a writ of certiorari, which was denied on October 6, 2014. (Filing no. 9-4 at CM/ECF pp. 1-2.)

         4. On October 20, 2014, Rice filed a motion for postconviction relief in the state district court and a supplemental postconviction motion was later filed. (Filing no. 9-6 at CM/ECF pp 1, 43.) The state district court denied both motions for postconviction relief without an evidentiary hearing on March 27, 2015. (Id. at CM/ECF pp. 50-58.)

         5. Rice attempted to appeal the state district court's judgment, but his notice of appeal was untimely filed and the appeal was dismissed by the Nebraska Court of appeals for lack of jurisdiction. (Id. at CM/ECF p. 59; Filing no. 9-2 at CM/ECF p. 2.) The Nebraska Supreme Court denied Rice's petition for further review and the mandate was issued on August 24, 2015. (Id.)

         6. On February 25, 2016, Rice filed an application for leave to file a successive motion for postconviction relief and a motion for leave to file a successive motion for postconviction relief. (Filing no. 9-7 at CM/ECF pp. 1, 8.) On June 14, 2016, Rice filed a successive motion for postconviction relief. (Id. at CM/ECF p. 10.) On June 28, 2016, the state district court determined that Rice's request to file a successive postconviction motion was moot given that Rice filed his successive motion on June 14, 2016. (Id. at CM/ECF pp. 21-22.) On November 8, 2016, the state district court denied Rice's successive postconviction motion without an evidentiary hearing for, among other reasons, because it was time barred under state law. (Id. at CM/ECF pp. 23-26.)

         7. Rice appealed and the Nebraska Court of Appeals affirmed the state district court's judgment as time barred by sustaining the State's motion for summary affirmance. (Filing no. 9-3 at CM/ECF p. 2.) The Nebraska Supreme Court denied Rice's request for further review, and the mandate was issued on June 13, 2017. (Id.)

         8. Rice's habeas petition was filed with this Court on June 23, 2017. (Filing no. 1.)

         Analysis

         A one-year statute of limitations applies to habeas corpus petitions filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2244(d)(1).

         In this case, Petitioner had until April 11, 2016, to file his habeas petition. However, he did not file the petition until June 23, 2017. Thus, the petition was late by more than 14 ...


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