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Epp v. Hansen

United States District Court, D. Nebraska

May 20, 2019

WILLIAM EPP, Petitioner,
v.
BRAD HANSEN, 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. 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.

         I. BACKGROUND

         A. Conviction and Direct Appeal

         Epp was 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).

         B. Postconviction Motion

         Epp 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. (Id.)

         C. Habeas Petition

         Epp 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.

         Respondent 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.

         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 ...

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