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Alvarado v. Hansen

United States District Court, D. Nebraska

August 22, 2018

TELESFORO ALVARADO, Petitioner,
v.
BRAD HANSEN, Warden et. al.; Respondent.[1]

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         This matter is before the court on Respondent's Motion for Summary Judgment.[2] (Filing No. 16.) Respondent argues that Petitioner Telesforo Alvarado's Petition for Writ of Habeas Corpus (Filing Nos. 1, 5) 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

         Alvarado was convicted of one count of distribution of a controlled substance within 1000 feet of a playground following a jury trial in the Scotts Bluff County District Court. (Filing No. 5 at CM/ECF pp. 14-15; Filing No. 17-1 at CM/ECF pp. 1, 9, 11.) The state district court sentenced Alvarado to eight to twenty years' imprisonment. (Filing No. 5 at CM/ECF p. 14; Filing No. 17-1 at CM/ECF pp. 1, 8, 11.) On April 15, 2014, the Nebraska Court of Appeals affirmed Alvarado's conviction and sentence on direct appeal. (Filing No. 17-2 at CM/ECF p. 2.) On June 4, 2014, the Nebraska Supreme Court denied Alvarado's petition for further review. (Id.) The mandate was issued on June 25, 2014 (Id.) The state district court spread the mandate on July 1, 2014. (Filing No. 17-1 at CM/ECF pp. 7, 11.)

         B. Postconviction Motion

         On March 30, 2016, Alvarado filed a motion for postconviction relief in the state district court. (Filing No. 17-1 at CM/ECF p. 6.) On August 15, 2016, Alvarado filed a supplemental verified motion for postconviction relief. (Id.) On February 3, 2017, the state district court dismissed Alvarado's motion as barred by the one-year limitations period under Neb. Rev. Stat. § 29-3001(4). (Filing No. 5 at CM/ECF p. 150; Filing No. 17-1 at CM/ECF p. 5.)

         Alvarado appealed the dismissal of postconviction relief to Nebraska's appellate courts. On April 19, 2017, the Nebraska Court of Appeals dismissed the appeal for lack of jurisdiction pursuant to Neb. Ct. R. App. P. § 2-107(A)(2) due to Alvarado's failure to execute his poverty affidavit no more than 45 days prior to the filing of the notice of appeal. (Filing No. 17-3 at CM/ECF p. 2.) The Nebraska Supreme Court denied Alvarado's petition for further review on June 6, 2017, and issued its mandate on July 28, 2017. (Id.)

         C. Habeas Petition

         Alvarado filed his Petition for Writ of Habeas Corpus in this court on August 1, 2017. (Filing No. 1.) He filed an Amended Petition for Writ of Habeas Corpus on August 29, 2017. (Filing No. 5.) Thereafter, Respondent moved for summary judgment (Filing No. 16), arguing the habeas petition is barred by the statute of limitations (Filing Nos. 16, 18). Alvarado filed a brief (Filing No. 21) in opposition to Respondent's motion, and Respondent filed a reply brief (Filing No. 22). This matter is fully submitted for disposition.

         Alvarado also filed a “Request to Withdraw Ground Nine of Habeas Petition and Request to Stay [and] Abey Ground Nine of Habeas Petition.” (Filing No. 23.) After Respondent filed a brief (Filing No. 26) in opposition to Alvarado's motion, Alvarado filed a “Motion for Leave to Submit Evidence Disputing Facts in Respondent's Opposition Brief to Motion to Withdraw Ground Nine of Habeas Petition” (Filing No. 27) and a “Motion to Correct Statement Made and to Submit Evidence in Support of Argument Made in His Motion Disputing Respondent's Opposition Brief” (Filing No. 30).

         II. ANALYSIS

         A. One-Year Limitations Period

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposed a one-year statute of limitations on petitions for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. 28 U.S.C. § 2244(d)(1). 28 U.S.C. § 2244(d) states:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(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 exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward ...

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