Biloff v. Britten

Filing 12

MEMORANDUM OPINION - This matter is deemed submitted, and, as set forth below, the Motion for Summary Judgment will be granted. The Court finds that Biloff's Petition was not timely filed. The Court finds that equitable tolling does not apply and Biloff's Petition is barred by the limitations period set forth in 28 U.S.C. § 2244(d)(1)(A). A separate order will be entered in accordance with this Memorandum Opinion. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party) (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GREGORY A. BILOFF,

)
)
Petitioner,
)
)
v.
)
)
FRED BRITTEN, Warden,
)
Tecumseh State Correctional
)
Institution,
)
)
Respondent.
)
______________________________)

4:11CV3008

MEMORANDUM OPINION

This matter is before the Court on respondent’s Motion
for Summary Judgment (Filing No. 6).

In support of his motion,

respondent filed a Brief in support (Filing No. 8), a Reply Brief
(Filing No. 10), and relevant State Court Records (Filing No. 7).
Petitioner Gregory A. Biloff (“Biloff”) filed an Affidavit in
opposition to the motion (Filing No. 9).

This matter is deemed

submitted, and, as set forth below, the Motion for Summary
Judgment will be granted.
I.

BACKGROUND

On July 26, 2005, the Lancaster County, Nebraska,
District Court found Biloff guilty of one count of first degree
sexual assault of a child (Filing No. 7-3, Attach. 3, at CM/ECF
p. 5).

Thereafter Biloff was sentenced to serve a prison term of

20-30 years on that conviction.

(Id. at CM/ECF p. 1.)

Biloff

filed a timely appeal, and the Nebraska Court of Appeals
summarily affirmed the conviction and sentence on February 27,

2006 (Filing No. 7-1, Attach. 1, at CM/ECF p. 2).

Biloff filed a

petition for further review with the Nebraska Supreme Court,
which denied Biloff relief on April 12, 2006.

(Id.)

Biloff filed a “Motion for Post-Conviction Relief” in
the Lancaster Douglas County District Court on September 9, 2008
(the “Post Conviction Motion”) (Filing No. 7-4, Attach. 4, at
CM/ECF pp. 1-6).

The Lancaster County District Court denied the

Post Conviction Motion on January 3, 2009, and Biloff filed a
timely appeal of that decision.

(Id. at CM/ECF pp. 8-9.)

The

Nebraska Court of Appeals affirmed the denial of post conviction
relief in an opinion issued on December 1, 2009 (Filing No. 7-2,
Attach. 2, at CM/ECF p. 2).

Biloff filed a petition for further

review with the Nebraska Supreme Court, which was denied on
January 21, 2010.

(Id.)

Biloff filed his Petition for Writ of Habeas Corpus
(the “Petition”) in this Court on January 20, 2011 (Filing No.
1).

Respondent filed his Motion for Summary Judgment, arguing

that Biloff’s Petition is barred by the relevant statute of
limitations (Filing No. 6).

In opposition, Biloff argues that he

is entitled to equitable tolling (Filing No. 8).
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
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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;
(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 post-conviction 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,
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523 F.3d 850, 852 (8th Cir. 2008) (indicating that a postconviction case is pending, and the limitations period is tolled,
from the filing of the post-conviction motion until the mandate
issues).

There is no indication in this case 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).
Here, the limitations period began to run on July 11,
2006, 90 days after April 12, 2006, the date on which Biloff’s
direct criminal appeal became final.

See, e.g., Riddle, 523 F.3d

at 852 (reiterating that, where a petitioner seeks review from
the state’s “court of last resort,” the one-year limitations
period begins to run when the 90-day period for seeking a writ of
certiorari in the United States Supreme Court expires); Sup. Ct.
R. 13 (“The time to file a petition for a writ of certiorari runs
from the date of entry of the judgment or order sought to be
reviewed, and not from the issuance date of the mandate.”).
Biloff filed his Post Conviction Motion on September 9, 2008
(Filing No. 7-4, Attach. 4, at CM/ECF pp. 1-6).

Thus, 791 days,

or more than two years, passed between the conclusion of direct
review and the filing of the Post Conviction Motion.

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As set

forth above, the limitations period was tolled from September 9,
2008, until the conclusion of Biloff’s appeal relating to the
Post Conviction Motion.
The limitations period began to run again on April 21,
2010, 90 days after the Nebraska Supreme Court denied Biloff
relief on his Post Conviction Motion (Filing No. 7-2, Attach. 2,
at CM/ECF p. 2).

Biloff filed his Petition in this Court on

January 20, 2011 (Filing No. 1).

Thus, an additional 274 days

passed between the conclusion of Biloff’s post-conviction appeal
and the filing of the Petition in this court.

Together, a total

of 1065 days, or nearly three years, elapsed between the
conclusion of direct review and the filing of the Petition.

In

light of this, the Court finds that Biloff’s Petition was not
timely filed.
B.

Equitable Tolling
The Eighth Circuit has held that equitable tolling may

be applied to the AEDPA statute of limitations.
Riddle v. Kemna, 523 F.3d at 857.

See, e.g.,

“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
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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).
Liberally construed, Biloff asserts that his trial
counsel “never made [him] aware of the availability of either
state postconviction remedies or federal Habeas Corpus relief,”
so he was “unaware of any time constraints” relating to those
actions (Filing No. 9 at CM/ECF p. 1).

However, ineffective

assistance of counsel does not ordinarily warrant equitable
tolling.

Walker v. Norris, 436 F.3d 1026, 1033 (8th Cir. 2006).

Further, equitable tolling is not appropriate simply because the
petitioner has a “lack of legal knowledge or legal resources.”
Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000).

There

is nothing in the record showing that Biloff pursued his rights
diligently, nor does it appear that any extraordinary
circumstance stood in Biloff’s way of timely filing his Petition.
The Court finds that equitable tolling does not apply and
Biloff’s Petition is barred by the limitations period set forth

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in 28 U.S.C. § 2244(d)(1)(A).

A separate order will be entered

in accordance with this Memorandum Opinion.
DATED this 26th day of September, 2011.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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