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. 11.) Respondent argues
Petitioner William Epp's Petition for Writ of Habeas
Corpus (Filing No. 8) 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
convicted by a jury of robbery and possession of a deadly
weapon by a felon. (Filing No. 12-5 at CM/ECF pp.
1-2.) Epp was found to be a habitual criminal and was
sentenced to a 60 to 60-year sentence on both the robbery and
possession of a deadly weapon counts with the sentences
ordered to be served consecutively. (Id. at CM/ECF pp.
3-4.) On October 16, 2009, the Nebraska Supreme Court
affirmed Epp's convictions and sentences on direct
appeal. (Filing No. 12-3); see also
State v. Epp, 773 N.W.2d 356 (Neb. 2009).
filed a postconviction motion to vacate and set aside his
convictions in the state district court on November 28, 2016.
(Filing No. 12-6 at CM/ECF pp. 1- 12.) The
state district court denied Epp's postconviction motion
without an evidentiary hearing, finding Epp's motion to
be time-barred under Nebraska law. (Id. at CM/ECF pp.
13-16.) Epp appealed, and the Nebraska Supreme Court
affirmed the state district court's denial of
postconviction relief, agreeing that the motion was time
barred, in an opinion filed April 20, 2018. (Filing No.
12-4); State v. Epp, 910 N.W.2d 91 (Neb. 2018).
Epp filed a motion for rehearing, which was overruled.
(Filing No. 12-2 at CM/ECF p. 2.) The Nebraska
Supreme Court issued its mandate on September 14, 2018.
filed a “Motion for Relief From Judgment Pursuant to
Rule 60(b)(3)(4)(6) and Rule 60(d)(1) and (2)”
(filing no. 1), which was docketed as a petition for
writ of habeas corpus under 28 U.S.C. § 2254.
The court informed Epp that it would treat his pleading as an
actual 28 U.S.C. § 2254 habeas petition and
gave Epp until December 21, 2018, to file an amended petition
setting forth all his claims. (Filing No. 7.) Epp
filed his Amended Petition for Writ of Habeas Corpus
(Filing No. 8) on December 17, 2018.
filed a Motion for Summary Judgment, brief in support, and
the relevant state court records. (Filing No. 11;
Filing No. 12; Filing No. 13.) Epp filed a
brief in response to Respondent's summary judgment
motion. (Filing No. 14.) Respondent filed a Notice
of Submission indicating that he would not be filing a reply
brief. (Filing No. 15.) This matter is now fully
submitted for disposition.
One-Year Limitations Period
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
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time ...