Gillispie v. Bakewell

Filing 13

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: Petitioner Steven Ray Gillispie's Petition for Writ of Habeas Corpus (filing no. 1 ) is denied in all respects and this action is dismissed with prejudice. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Judge Richard G. Kopf. (Copy mailed to pro se party) (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
STEVEN RAY GILLISPIE,
Petitioner,
v.
DENNIS BAKEWELL, Warden,
Respondent.

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4:10CV3185

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner Steven Ray Gillispie’s (“Gillispie”)
Petition for Writ of Habeas Corpus (“Petition”). (Filing No. 1.) Respondent has filed
an Answer (filing no. 7) along with a Brief (filing no. 8) and relevant State Court
Records (filing no. 6). Gillispie has filed a Brief in Response (filing no. 11), and
Respondent has filed a Reply Brief (filing no. 12). This matter is therefore deemed
fully submitted. As set forth below, the Petition is denied in all respects and
dismissed with prejudice.
I.

BACKGROUND

On August 15, 2005, Gillispie pled no contest to one count of first degree
sexual assault. (Filing No. 6-3, Attach. 3 at CM/ECF pp. 29-31; Filing No. 6-6,
Attach. 6 at CM/ECF pp. 4-7, 16.) On September 27, 2005, the District Court of Red
Willow County, Nebraska, (“Nebraska District Court”) sentenced Gillispie to a prison
term of 30 to 40 years. (Filing No. 6-6, Attach. 6 at CM/ECF p. 46.) The sentencing
Journal Entry was filed by the Nebraska District Court on October 12, 2005. (Filing
No. 6-5, Attach. 5.) Gillispie did not file a direct appeal. (Id.)

On February 12, 2009, Gillispie filed an “Amended Motion for Relief” (“PostConviction Motion”) in the Nebraska District Court.1 (Filing No. 6-3, Attach. 3 at
CM/ECF pp. 34-36.) After holding an evidentiary hearing, the Nebraska District
Court denied the Post-Conviction Motion and Gillispie appealed. (Filing No. 6-7,
Attach. 7; Filing No. 6-3, Attach. 3 at CM/ECF pp. 1, 38-40.) On December 2, 2009,
the Nebraska Court of Appeals dismissed Gillispie’s appeal for lack of jurisdiction
because his poverty affidavit was not timely filed. (Filing No. 6-1, Attach 1.) The
mandate was issued on January 6, 2010. (Filing No. 6-2, Attach. 2 at CM/ECF p. 2.)
Gillispie filed his Petition in this court on September 22, 2010. (Filing No. 1.)
Respondent filed an Answer and Brief in Support, arguing that Gillispie’s Petition is
barred by the relevant statute of limitations. (Filing Nos. 7 and 8.) In response,
Gillispie argues that he is actually innocent of all charges. (Filing No. 11.)
II.
A.

ANALYSIS

Statute of Limitations

“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.” Lawrence v. Florida, 127 S. Ct. 1079, 1082
(2007) (citing 28 U.S.C. § 2244(d)(1)). This one-year limitation period runs from the
latest of the following dates:
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking such
review;

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Although Gillispie’s motion was entitled an “Amended Motion for Relief,” it
was the only post-conviction motion that he filed. (Filing No. 6-5, Attach. 5.)
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(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of the
United States is removed, if the applicant was prevented from filing by
such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly recognized
by the Supreme Court and made retroactively applicable to cases on
collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. § 2244(d)(1).
However, “[t]he time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim
is pending shall not be counted toward any period of limitation under this
subsection.” 28 U.S.C. § 2244(d)(2); see also Riddle v. Kemna, 523 F.3d 850, 852
(8th Cir. 2008) (indicating that a post-conviction case is pending, and the limitations
period is tolled, from the filing of the post-conviction motion until the mandate
issues). Here, there is no indication that the Petition was filed within one year of the
dates specified in § 2244(d)(1)(B)-(D). The issue, therefore, is whether the Petition
was filed within one year of “the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking such review.”
28 U.S.C. § 2244(d)(1)(A).
Pursuant to Nebraska law, Gillispie had 30 days to file a direct appeal from the
date that his sentence was entered on the Journal of the trial court, October 12, 2005.
Neb. Rev. Stat. § 25-1912(1); In re Interest of J.A., 510 N.W.2d 68, 71 (1994)
(concluding that a notice of appeal must be filed within 30 days of the date the

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judgment or order was entered on the journal of the trial court); State v. Yos-Chiguil,
772 N.W.2d 574, 579 (2009) (holding that in a criminal case , the judgment is the
sentence). Because Gillispie’s 30-day appeal deadline fell on Veteran’s Day, a court
holiday, Gillispie’s time to file an appeal was extended until Monday, November 14,
2005. See Neb. Rev. Stat. § 25-2221. Gillispie failed to file a notice of appeal by this
date, and the one-year statute of limitations began to run. Absent tolling, Gillispie
had until November 14, 2006, to file a petition in this court.
As discussed above, Gillispie did not file his Post-Conviction Motion until
February 12, 2009. (Filing No. 6-3, Attach. 3 at CM/ECF pp. 34-36.) Although the
statute of limitations is tolled while a post-conviction case is pending, Gillispie filed
his Post-Conviction Motion more than two years and two months after the statute of
limitations had already expired. In light of this, the court finds that Gillispie’s
September 22, 2010, Petition was not timely filed. (See Filing No. 1.)
B.

Equitable Tolling

The Eighth Circuit has held that equitable tolling may be applied to the
AEDPA statute of limitations. See, e.g., Riddle v. Kemna, 523 F.3d at 857.
“Generally, a litigant seeking equitable tolling bears the burden of establishing two
elements: (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way.” Id. (quoting Walker v. Norris, 436
F.3d 1026, 1032 (8th Cir. 2006)). However, “[e]quitable tolling is ‘an exceedingly
narrow window of relief.’” Id. (quoting Jihad v. Hvass, 267 F.3d 808, 805 (8th Cir.
2001)). Stated another way, “[a]ny invocation of equity to relieve the strict
application of a statute of limitations must be guarded and infrequent, lest
circumstances of individualized hardship supplant the rules of clearly drafted
statutes.” Flanders v. Graves, 299 F.3d 974, 976 (8th Cir. 2002) (quotation omitted).

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Liberally construed, Gillispie argues that his claim of actual innocence should
toll the statute of limitations. (Filing No. 11.) However, for a claim of actual
innocence to toll a statute of limitations, a petitioner needs to show that a respondent
prevented him from discovering relevant facts in a timely fashion, or that a reasonably
diligent petitioner could not have discovered relevant facts in time to file a petition
within the period of limitations. Flanders, 299 F.3d at 978. Even with the most
liberal construction, there is nothing in the record showing that Gillispie pursued his
rights diligently, or that an extraordinary circumstance prevented him from filing a
timely Petition. The court finds that equitable tolling does not apply and Gillispie’s
Petition is barred by the limitations period set forth in 28 U.S.C. § 2244(d)(1)(A).
IT IS THEREFORE ORDERED that:
1.
Petitioner Steven Ray Gillispie’s Petition for Writ of Habeas Corpus
(filing no. 1) is denied in all respects and this action is dismissed with prejudice.
2.
A separate judgment will be entered in accordance with this
Memorandum and Order.
DATED this 23rd day of May, 2011.
BY THE COURT:
Richard G. Kopf
United States District Judge
*This opinion may contain hyperlinks to other documents or Web sites. The
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or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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