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Reising v. Lewien

United States District Court, D. Nebraska

August 1, 2018

GREGORY C. REISING, Petitioner,
v.
BARB LEWIEN, Chief Executive Officer, Warden; 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. 16.) Respondent argues Petitioner Gregory C. Reising'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

         Reising pled guilty to two counts of robbery on May 23, 2012, in the District Court of Douglas County, Nebraska. (Filing No. 17-2 at CM/ECF p. 1.) On August 20, 2012, the state district court sentenced Reising to consecutive prison sentences of 5 to 10 years for each count of robbery. (Id. at CM/ECF pp. 2-3.) The sentencing order was filed on August 21, 2012. (Id.) Reising did not file a direct appeal. (SeeFiling No. 17-3 at CM/ECF pp. 6-7.)

         On November 13, 2012, Reising filed a motion for an order nunc pro tunc asking the state district court to correct the sentencing order to reflect that his sentences were to run concurrently with the sentence he was already serving at the time of his August 20, 2012 sentencing. (Filing No. 17-2 at CM/ECF pp. 4-6.) A second motion clarifying his position was filed in the state district court on April 18, 2016. (Id. at CM/ECF pp. 7-8.) On September 1, 2016, the state district court denied Reising's request for an order nunc pro tunc following a hearing on the matter. (Id. at CM/ECF pp. 9-11.) The state district court found that the sentencing order could not be changed because the court expressed its intent at the sentencing hearing to run the sentences consecutively to the sentence Reising was serving at the time he was sentenced. (Id.) Reising filed a motion to alter or amend the judgment on September 15, 2016, which the state district court denied on October 26, 2016. (SeeFiling No. 17-3 at CM/ECF p. 5.)

         Reising appealed the denial of his motion for an order nunc pro tunc, but the Nebraska Court of Appeals dismissed the appeal for lack of jurisdiction because the notice of appeal was not filed within 30 days of the September 1, 2016 order, as required by Nebraska law. (Filing No. 17-1 at CM/ECF p. 2.) The appellate court noted that the time to appeal was not tolled by the motion to alter or amend that Reising filed in the district court because that motion was not timely filed. (Id.) The Nebraska Supreme Court denied Reising's request for further review on April 21, 2017. (Id.) Reising never filed a state postconviction motion pursuant to Neb. Rev. Stat. § 29-3001 et seq. (SeeFiling No. 17-3 at CM/ECF pp. 3-7.)

         Reising filed his Petition for Writ of Habeas Corpus (filing no. 1) in this court on August 31, 2017. Respondent filed a Motion for Summary Judgment, brief in support, and the relevant state court records. (Filing No. 16; Filing No. 17; Filing No. 18.) Reising filed a brief in opposition to Respondent's Motion for Summary Judgment.[1] (Filing No. 23.) Respondent filed a Notice of Submission (filing no. 24), and 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:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the ...

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