United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge.
matter is before the court on Petitioner Jamaal Andre
McNeil's (“McNeil”) Petition for Writ of
Habeas Corpus (filing no. 1) brought pursuant to
28 U.S.C. § 2254. After initial review under Rule 4
of the Rules Governing Section 2254 Cases in the United
States District Courts, I will dismiss the petition
alleges he was convicted of possession of a controlled
substance (crack) with intent to deliver on May 1, 2017, in
the Douglas County District Court of Nebraska, No. CR16-3742.
McNeil's state case records, available to this court
online,  show that McNeil filed an appeal on May 3,
2017, after he was convicted but prior to his sentencing,
which was dismissed by the Nebraska Court of Appeals for lack
of jurisdiction on June 19, 2017, and the mandate was issued
on July 28, 2017. On August 23, 2017, the state district
court sentenced McNeil to ten to fifteen years'
imprisonment. McNeil did not file a direct appeal after he
was sentenced. Recently, however, on August 21, 2018, McNeil
filed a motion for postconviction relief and the status of
his state criminal case is listed as “Re-opened as of
forth in 28 U.S.C. § 2254:
(b)(1) An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a State
court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the
courts of the State; or
(B) (i) there is an absence of available State corrective
(ii) circumstances exist that render such process ineffective
to protect the rights of the applicant. . . .
(c) An applicant shall not be deemed to have exhausted the
remedies available in the courts of the State, within the
meaning of this section, if he has the right under the law of
the State to raise, by any available procedure, the question
Nebraska law, a prisoner may file a postconviction relief
motion seeking to vacate or set aside a sentence on
constitutional grounds within one year of “[t]he date
the judgment of conviction became final by the conclusion of
a direct appeal or the expiration of the time for filing a
direct appeal.” Neb. Rev. Stat. § 29-3001.
McNeil's state court records clearly establish that he
did not pursue any state postconviction proceedings
before filing his habeas case in this forum.
Exhaustion of available state postconviction relief is a
necessary prerequisite to seeking federal habeas relief under
28 U.S.C. § 2254. Akins v. Kenney, 410
F.3d 451, 454 (8th Cir. 2005) (quoting O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999)). As explained in
Rose v. Lundy, 455 U.S. 509, 520 (1982):
[O]ur interpretation of §§ 2254(b), (c) provides a
simple and clear instruction to potential litigants: before
you bring any claims to federal court, be sure that you first
have taken each one to state court. Just as pro se
petitioners have managed to use the federal habeas machinery,
so too should they be able to master this straightforward
McNeil did not exhaust his available state court remedies
before filing this federal habeas action, his petition for
relief under 28 U.S.C. § 2254 is subject to sua sponte
dismissal by this court. Rose, 455 U.S. at 520;
Akins, 410 F.3d at 455.
court has the discretion to stay rather than dismiss a
petitioner's habeas claim pending exhaustion of state
postconviction proceedings. Rhines v. Weber, 544
U.S. 269, 276 (2005). However, a federal stay should be
available in only limited circumstances. “Because
granting a stay effectively excuses a petitioner's
failure to present his claims first to the state courts, stay
and abeyance is only appropriate when the district court
determines there was good cause for the petitioner's
failure to exhaust his claims first in state court.”
Id. at 277. In determining whether a stay
is appropriate, the court may consider whether access to
federal habeas review will be prejudiced if the case is
dismissed, including whether the petitioner's federal
habeas claims will be time-barred because the statute of
limitations set forth in 28 U.S.C. § 2244(d)(1) expired
while the habeas case was pending in federal court. See
Akins, 410 F.3d at 455-56. See also Lawrence v.
Florida, 549 U.S. 327, 331 (2007) (citing 28 U.S.C.
§ 2244(d)(1)) (“The Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, sets a
one-year statute of limitations for seeking federal habeas
corpus relief from a state-court judgment.”). Although
the time during which a properly filed application for state
postconviction or other collateral review with respect to the
pertinent judgment or claim is pending is not counted toward
the AEDPA statute of limitations, 28 U.S.C. §
2244(d)(2), the filing of a petition for habeas corpus in
federal court does not toll the AEDPA statute of limitations.
Rhines, 544 U.S. at 274-75.
conviction and sentence became final on September 22, 2017,
which was 30 days after the state district court entered its
sentencing order (i.e., “the expiration of the time for
seeking [direct] review”). See 28 U.S.C. §
2244(d)(1)(A); see also Neb. Rev. Stat. § 25-1912
(stating appeal must be filed “within thirty days after
the entry of such judgment”). The one-year AEDPA
statute of limitations has not expired. Moreover, McNeil is
currently pursuing his state postconviction motion. Thus,
dismissing this federal petition for habeas relief will not
prejudice McNeil's ability to timely pursue his state
postconviction motion and, upon exhaustion of that available
remedy, file a timely petition for federal habeas review as
appropriate. Therefore, the circumstances presented in
this case do not justify staying this federal ...