United States District Court, D. Nebraska
DAMMON T. HAYNES, Petitioner,
BRAD HANSEN, Warden, and STATE OF NEBRASKA, Respondents.
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge
before me is a petition for writ of habeas corpus brought
pursuant to 28 U.S.C. § 2254. Respondents have filed a
motion for summary judgment predicated on the assertion that
the federal statute of limitations ran out before Petitioner
filed his petition.
with Respondents and further find no basis to excuse
application of the statute of limitations based on equitable
tolling. Accordingly, the motion for summary
judgment is granted and the petition is dismissed with
prejudice. Briefly, my reasons for doing so are set forth
September 17, 2014, Petitioner Dammon T. Haynes pled no
contest in the District Court of Douglas County, Nebraska, to
three convictions in two separate cases: (a) stalking and (b)
terroristic threats in No. CR14-701, and (c) tampering with a
juror, witness, or informant in No. CR14-1202. (Filing No.
10-3 at CM/ECF pp. 1-2) At the plea hearing, the district court
found the stalking conviction to be a second offense.
(Id. at CM/ECF p. 1.)
November 19, 2014, the state district court found Haynes to
be a habitual criminal and sentenced him to 12 to 24 years on
each conviction. (Id. at CM/ECF pp. 3-6.) The court
ordered the sentences for stalking and terroristic threats to
run concurrently with one another and the tampering sentence
to run consecutively to those other sentences. (Id.
at CM/ECF pp. 3, 5.)
Haynes filed a consolidated direct appeal, alleging excessive
sentences. State v. Haynes, 2015 WL 4626756
(Neb.App. 2015). The Nebraska Court of Appeals, in an opinion
dated August 4, 2015, affirmed Haynes' sentences for the
tampering and terroristic threats convictions. Id.
The court, however, vacated the stalking sentence and
remanded for resentencing on that conviction only for the
reason that the sentence should not have been enhanced under
the habitual criminal statute because it was enhanced as a
second offense under the stalking statutes. Id. No
petition for further review was filed with the Nebraska
Supreme Court. (Filing No. 10-1 at CM/ECF pp. 4, 8.) Haynes
was resentenced to 20 months to 5 years on the stalking
conviction; he did not appeal from the resentencing order,
which was filed on October 2, 2015. See Douglas
County District Court No. CR14-701.
July 14, 2016, Haynes filed a timely motion for
post-conviction relief in No. CR14-701. (Filing No. 10-4 at
CM/ECF p. 1.) The state district court denied post-conviction
relief without an evidentiary hearing. (Id. at
CM/ECF pp. 21-26.) As the district court noted in its order,
Haynes only filed a post-conviction motion in CR14-701, the
case involving the stalking and terroristic threats
convictions; no postconviction motion was filed in the
tampering case. (Id. at CM/ECF p. 21.) See,
also, Douglas County District Court No. CR14-1202.
Haynes appealed the denial of post-conviction relief, and on
March 9, 2018, the Nebraska Supreme Court affirmed the state
district court's judgment. State v. Haynes, 908
N.W.2d 40 (Neb. 2018). Haynes filed a motion for rehearing,
which was overruled as untimely filed. (Filing No. 10-2 at
CM/ECF p. 4.) The mandate was issued on April 16, 2018.
Haynes' habeas petition, in which he references all three
convictions, was filed with this Court on February 25, 2019.
(Filing No. 1.)
Statute of Limitations Ran Out
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) provides a statute of limitations for a
petition for writ of habeas corpus filed pursuant to 28
U.S.C. § 2254. Section 2244(d) provides:
(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 ...