United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
matter is before the court on Respondent's Motion for
Summary Judgment. (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.
Conviction and Direct Appeal
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.)
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.)
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.)
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.
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).
One-Year Limitations Period
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 ...