Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Thomas v. State

United States District Court, D. Nebraska

June 3, 2019

KELVIN L. THOMAS, Petitioner,
v.
STATE OF NEBRASKA, SCOTT FRAKES, Director, Nebraska Correctional Services; and MICHELL CAPPS, Warden, Nebraska State Penitentiary; Respondents.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         This matter is before the court on Respondents' Motion for Summary Judgment.[1] (Filing No. 10.) Respondents argue that Petitioner Kelvin L. Thomas' Petition for Writ of Habeas Corpus (filing no. 1) 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

          Following a bench trial in the Douglas County District Court, Thomas was convicted of first degree murder, use of a deadly weapon to commit a felony, and being a felon in possession of a firearm. (Filing No. 11-2 at CM/ECF p. 26.) The state district court sentenced Thomas to life imprisonment for first degree murder, 10 to 15 years' imprisonment for use of a firearm to commit a felony, and 5 to 10 years' imprisonment for being a felon in possession of a firearm. (Id. at CM/ECF pp. 27-28.) On January 30, 2004, the Nebraska Supreme Court affirmed Thomas' convictions and sentences on direct appeal. (Filing No. 11-1 at CM/ECF p. 2.) State v. Thomas, 267 Neb. 339, 673 N.W.2d 897 (2004).[2] The mandate was issued on March 23, 2004. (Filing No. 11-1 at CM/ECF p. 2.)

         B. Postconviction Motions

         On February 25, 2009, Thomas filed a pro se verified motion for postconviction relief in the state district court. (Filing No. 11-3 at CM/ECF pp. 4-11.) On July 17, 2009, the state district court denied Thomas postconviction relief without an evidentiary hearing. (Id. at CM/ECF pp. 17-18.) On November 12, 2009, the Nebraska Supreme Court summarily affirmed the state district court's denial of postconviction relief. (Filing No. 11-4 at CM/ECF p. 2.) The mandate was issued on November 24, 2009. (Id.)

         On January 9, 2017, Thomas filed a second verified motion for postconviction relief in the state district court. (Filing No. 11-5 at CM/ECF pp. 2-34.) The state district court denied Thomas postconviction relief without an evidentiary hearing. (Id. at CM/ECF pp. 35-42.) On April 11, 2017, the Nebraska Supreme Court dismissed the appeal for lack of jurisdiction pursuant to Neb. Ct. R. App. P. § 2-101(B)(4) and Neb. Ct. R. App. P. § 2-107(A)(2). (Filing No. 11-6 at CM/ECF p. 2.)

         C. Habeas Petition

         Thomas filed his Petition for Writ of Habeas Corpus in this court on November 8, 2018.[3] (Filing No. 1.) On January 31, 2019, Thomas filed a Motion to Stay and Abey these habeas corpus proceedings so that he could exhaust his state court remedies. (Filing No. 6.) Thereafter, Respondents moved for summary judgment, arguing the habeas petition is barred by the statute of limitations. (Filing No. 10; Filing No. 12.) Respondents' brief in support of the motion for summary judgment also included their opposition to Thomas' Motion to Stay and Abey. (Filing No. 12.) Thomas filed a brief in opposition to Respondents' Motion for Summary Judgment, (filing no. 14), and Respondents filed a reply brief (filing no. 16). The Motion for Summary Judgment (filing no. 10) and Motion to Stay and Abey (filing no. 6) are fully submitted for disposition.

         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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.