Zimmerman v. State of Nebraska

Filing 30

MEMORANDUM AND ORDER- This matter is dismissed with prejudice, and a separate judgment will be entered in accordance with this Memorandum and Order; and The court will not issue a certificate of appealability in this matter. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHRISTOPHER ZIMMERMAN,

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Petitioner,
v.
STATE OF NEBRASKA,
Respondent.

CASE NO. 4:12CV3246

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner Christopher Zimmerman’s
(“Zimmerman” or “Petitioner”) Petition for Writ of Habeas Corpus. (Filing No. 1.) As set
forth below, the court will dismiss the petition with prejudice because it is barred by the
relevant statute of limitations.
I. BACKGROUND
A.

Conviction and First Direct Appeal
On April 16, 2008, Zimmerman pled guilty to false imprisonment in the first degree,

robbery, and assault in the first degree in the Nemaha County District Court (“state district
court”). (Filing No. 19-1 at CM/ECF pp. 18-19.) Thereafter, the state district court
sentenced Zimmerman to a period of not less than 30 nor more than 60 months’
imprisonment on the charge of false imprisonment in the first degree, a period of not less
than 10 nor more than 20 years’ imprisonment on the charge of robbery, and a period of
not less than 15 nor more than 20 years’ imprisonment on the charge of assault in the first
degree. (Id. at CM/ECF pp. 20-21.)
Zimmerman appealed the state district court’s judgment and sentence. (Id. at
CM/ECF p. 1.) However, the Nebraska Court of Appeals dismissed the appeal because
it was not timely filed. (Id. at CM/ECF p. 27.)

B.

Post-Conviction Motion
Zimmerman filed a motion for post-conviction relief in the state district court on May

20, 2009. (Id. at CM/ECF p. 31.) The state district court granted Zimmerman a new direct
appeal upon a finding that the clerk of the state district court had placed the incorrect date
of filing on Zimmerman’s notice of appeal. (Id. at CM/ECF p. 44.)
C.

Second Direct Appeal
Zimmerman filed a second notice of appeal on August 7, 2009. (Id. at CM/ECF p.

50.)

On January 29, 2010, the Nebraska Court of Appeals sustained the State of

Nebraska’s motion for summary affirmance. (See Filing No. 19-2 at CM/ECF p. 5.)
Zimmerman did not petition the Nebraska Supreme Court for further review. (Id.)
D.

Habeas Petition
Zimmerman filed his habeas corpus petition in this court on December 13, 2012.

(Filing No. 1.) In response to the petition, Respondent filed an answer, a brief in support
of the answer, and the relevant state court records. (Filing No. 19, Filing No. 20, and Filing
No. 21.) Thereafter, Zimmerman filed a brief in support of his petition. (Filing No. 28.) The
court deems this matter fully submitted.
II. ANALYSIS
Respondent argues that Zimmerman’s habeas corpus petition is barred by the
relevant statute of limitations. The court agrees.
A.

Statute of Limitations
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:
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(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).
This statute of limitations period is tolled while a state post-conviction or other
collateral review is pending. King v. Hobbs, 666 F.3d 1132, 1135 (8th Cir. 2012), (citing
§ 2244(d)(2)). A post-conviction application is considered “pending” until the state court
“issue[s] its mandate or denie[s] review,” even if a petitioner files a petition for certiorari in
the Supreme Court. Lawrence v. Florida, 549 U.S. 327, 329 (2007), (“The application for
state postconviction review is . . . not ‘pending’ after the state court’s postconviction review
is complete, and § 2244(d)(2) does not toll the 1-year limitations period during the
pendency of a petition for certiorari.”).
This case concerns only § 2244(d)(1)(A), as Zimmerman does not argue that his
habeas corpus petition is timely filed under § 2244(d)(1)(B), (C), or (D).

Under

§ 2244(d)(1)(A), Zimmerman was required to file his Petition within one year of “the date
on which [his] judgment became final by the conclusion of direct review or the expiration
of the time for seeking such review.” § 2244(d)(1)(A). The Supreme Court recently
addressed the point at which a judgment becomes “final” for purposes of § 2244(d)(1)(A).
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In Gonzalez v. Thaler, the Supreme Court held that, for petitioners who pursue direct
review all the way to the United States Supreme Court, a judgment becomes final “when
the [Supreme Court] affirms a conviction on the merits or denies a petition for certiorari.”
Gonzalez v. Thaler, --- U.S. ---- 132 S. Ct. 641 (2012). For all other petitioners, the
judgment becomes final “when the time for pursuing direct review in [the Supreme Court],
or in state court, expires.” Id. at 653-54. If the Supreme Court has jurisdiction to review
the direct appeal, “the judgment becomes final ninety days after the conclusion of the
prisoner’s direct criminal appeals in the state system.” King, 666 F.3d at 1135, (citing
Sup.Ct. R. 13.1).
Here, the Nebraska Court of Appeals sustained the State of Nebraska’s motion for
summary affirmance on January 29, 2010, and Zimmerman did not petition the Nebraska
Supreme Court for further review. (See Filing No. 19-2 at CM/ECF p. 5.) Therefore,
Zimmerman’s conviction became final on February 28, 2010, the date on which his time
for seeking review in the Nebraska Supreme Court expired. See Gonzalez, 132 S. Ct. at
646, (“We hold that, for a state prisoner who does not seek review in a State’s highest
court, the judgment becomes ‘final’ on the date that the time for seeking such review
expires.”). Zimmerman filed his habeas corpus petition in this court 1019 days later, on
December 13, 2012. The statute of limitations period was not tolled between February 28,
2010, and December 13, 2012, because Zimmerman did not file a post-conviction action
at the conclusion of his second direct appeal. Thus, at least 1019 days count toward the
one-year limitations period. In light of this, the court finds that Zimmerman’s Petition is
untimely under § 2244(d)(1)(A).

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B.

Equitable Tolling
Generally, a litigant seeking equitable tolling must establish two elements: “(1) that

he has been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way.” Walker v. Norris, 436 F.3d 1026, 1032 (8th Cir. 2006), (internal
quotation omitted). Equitable tolling is proper “only when extraordinary circumstances
beyond a prisoner’s control make it impossible to file a petition on time.” Runyan v. Burt,
521 F.3d 942, 945 (8th Cir. 2008), (internal quotation omitted). As such, “equitable tolling
is an exceedingly narrow window of relief.” Id. (internal quotation omitted).
Here, Zimmerman has not argued, much less established, that he pursued his rights
diligently or that extraordinary circumstance prevented him from filing his habeas corpus
petition sooner. Rather, he argues “there is no way that someone in state custody can get
everything laid out in the allowed time under 28 U.S.C. § 2244(d)(1)” (Filing No. 27 at
CM/ECF p. 1), and that “it takes time to get the funding to get copies and to file the right
paper work” (Filing No. 28 at CM/ECF p. 11). However, Zimmerman’s difficulty preparing
legal documents are “the kinds of obstacles faced by many if not most habeas petitioners,
and therefore Congress is presumed to have considered such equities in enacting the oneyear limitations period.” Jihad v. Hvass, 267 F.3d 803, 806-07 (8th Cir. 2001). In other
words, these were not extraordinary circumstances beyond Zimmerman’s control.
C.

Actual Innocence
In McQuiggin v. Perkins, --- U.S. ----, 133 S. Ct. 1924 (2013), the Supreme Court

held that a habeas corpus petitioner can overcome the expiration of AEDPA’s statute of
limitations by making a convincing showing of actual innocence. See McQuiggin, 133 S.

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Ct. 1928. The Court held that a petitioner attempting to show actual innocence is required
to produce new evidence sufficient to persuade the district court that “no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt.” 133 S.Ct. at
1982, (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).
Here, Zimmerman does not argue that he is actually innocent.

In addition,

Zimmerman has produced no new evidence in support of a claim that he is actually
innocent. Accordingly, for the reasons set forth above, Zimmerman’s petition for writ of
habeas corpus is barred by AEDPA’s statute of limitations, and Zimmerman has failed to
overcome the procedural bar.
III. CERTIFICATE OF APPEALABILITY
A petitioner cannot appeal an adverse ruling on his petition for writ of habeas corpus
under § 2254 unless he is granted a certificate of appealability. 28 U.S.C. § 2253(c)(1);
Fed. R. App. P. 22(b)(1). A certificate of appealability cannot be granted unless the
petitioner “has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). To make such a showing, “[t]he petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. Daniel, 529 U.S. 473, 484 (2000).
In this case, Zimmerman has failed to make a substantial showing of the denial of
a constitutional right. The court is not persuaded that the issues raised in the petition are
debatable among reasonable jurists, that a court could resolve the issues differently, or
that the issues deserve further proceedings. Accordingly, the court will not issue a
certificate of appealability in this case.

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IT IS THEREFORE ORDERED that:
1.

This matter is dismissed with prejudice, and a separate judgment will be
entered in accordance with this Memorandum and Order; and

2.

The court will not issue a certificate of appealability in this matter.

DATED this 2nd day of July, 2014.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

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District Court for the District of Nebraska does not endorse, recommend, approve, or
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