Cook v. Kenney et al

Filing 23

MEMORANDUM AND ORDER -Cook's Petition for Writ of Habeas Corpus (Filing No. 1 ) is denied in all respects and this action is dismissed with prejudice. Cook's Motion to Stay Proceedings (Filing No. 7 ) is denied. In light of the foregoing, Cook's Motion for Status (Filing No. 21 ) is denied as moot. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TODD L. COOK,
Petitioner,
v.
MICHAEL KENNEY, Director, and
DIANE SABATKA-RINE, Warden,
Respondents.

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4:13CV3215

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner Todd L. Cook’s (“Cook” or
“Petitioner”) Petition for Writ of Habeas Corpus (Filing No. 1) and Motion to Stay
Proceedings (Filing No. 7). Cook argues in his petition that the mandatory life
sentence he received in state court violates the Eighth Amendment’s prohibition on
cruel and unusual punishment. For the reasons explained below, the court finds that
Cook’s petition was not filed within the one-year limitations period set forth in 28
U.S.C. § 2244(d)(1) and must be dismissed, and also that Cook is not entitled to a stay
of these proceedings.
I. BACKGROUND
A.

Conviction and Direct Appeal

Cook pled guilty to first-degree murder and use of a firearm to commit a felony
on November 2, 1995, in the District Court of Madison County, Nebraska (“state
district court”). (Filing No. 10-12 at CM/ECF p. 143.) The Nebraska Supreme Court
summarized the facts leading to Cook’s conviction as follows:
On January 29, 1995, Cook and an accomplice entered a
Gas N’ Shop convenience store in Norfolk, Nebraska. Cook pointed a
9-mm semiautomatic pistol at Ellen Gill, a clerk in the store, and

demanded that she open the cash register. After Cook’s accomplice
removed approximately $206 from the cash register, Cook demanded
that Gill take him to retrieve the videotape used by the store’s video
surveillance machine. Gill took Cook to the video recorder, and Cook
attempted to remove the videotape. When he could not remove the
videotape from the recorder, Cook shot the recorder with his pistol.
Thinking that he saw Gill move, Cook turned and shot Gill from
approximately 2 feet away. The bullet struck Gill in her left hand and her
throat, and she died from the gunshot wounds.
State v. Cook, 559 N.W.2d 471, 472 (Neb. 1997) (“Cook I”). Cook stated in his
habeas corpus petition that he was 18 years and 54 days old when he committed this
murder. (Filing No. 1 at CM/ECF p. 16.)
The state district court sentenced Cook to life imprisonment for first-degree
murder, and a period of not less than 20 nor more than 20 years’ imprisonment for use
of a firearm to commit a felony. (Filing No. 10-12 at CM/ECF p. 144.) The Nebraska
Supreme Court affirmed the state district court’s judgment on February 14, 1997,
Cook I, 559 N.W.2d at 473, and overruled Cook’s motion for rehearing on March 12,
1997 (Filing No. 10-1 at CM/ECF p. 2).
B.

Motion for New Trial

Cook filed a motion for new trial and a motion to withdraw guilty pleas in the
state district court in 2003. See State v. Cook, No. S-09-360 (Neb. Dec. 11, 2009)
(“Cook II”) (discussing procedural history of Cook’s state court actions) (opinion
available at Filing No. 10-6). The state district court denied Cook’s motions and Cook
appealed. The State of Nebraska (“State”) filed a motion for summary dismissal,
arguing the state district court lacked jurisdiction to consider Cook’s motions. The
Nebraska Supreme Court sustained the State’s motion and dismissed Cook’s appeal.
Id.

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C.

Post-Conviction Motion and Appeal

Cook filed a verified motion for post-conviction relief in the state district court
on December 5, 2008.1 (See Filing No. 1 at CM/ECF p. 3.) The state district court
denied post-conviction relief on March 20, 2009. The Nebraska Supreme Court
affirmed the state district court’s judgment on December 11, 2009. See Cook II, No.
S-09-360 (opinion available at Filing No. 10-6).
D.

Subsequent Post-Conviction Motion and Appeal

Cook filed another motion for post-conviction relief in the state district court
on June 3, 2013, in which he raised the issue he now presents in this habeas corpus
action (i.e., that his life sentence is unconstitutional). (See Filing No. 10-12 at
CM/ECF pp. 31-61.) The state district court denied relief on August 14, 2013. (Filing
No. 10-12 at CM/ECF pp. 137-139.) The Nebraska Supreme Court affirmed the state
district court’s judgment on December 11, 2013. (Filing No. 10-4 at CM/ECF p. 2.)
E.

Habeas Corpus Petition

Cook filed his petition (Filing No. 1) in this court on December 17, 2013.
Thereafter, Respondents filed state court records (Filing No. 10), an answer (Filing
No. 13), and two briefs (Filing No. 14 and Filing No. 22). Respondents argue in their
filings that Cook’s claim is meritless and that his petition is barred by the relevant
statute of limitations. Cook filed a brief (Filing No. 20) in response to Respondents’
answer in which he argues that his petition was timely filed.

1

The Nebraska Supreme Court’s opinion in Cook II sets forth that Cook also
filed a post-conviction motion in the state district court in 2006, which Cook later
withdrew. Cook II, No. S-09-360 (opinion available at Filing No. 10-6 at CM/ECF
pp. 3-4).
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II. ANALYSIS
A.

Timeliness of Petition Under 28 U.S.C. § 2244(d)(1)

Respondent argues Cook’s petition was not filed within the relevant limitations
period. For the reasons explained below, the court agrees.
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:
(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). The statute of limitations period is tolled while a state postconviction or other collateral review is pending. King v. Hobbs, 666 F.3d 1132, 1135
(8th Cir. 2012) (citing § 2244(d)(2)).

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1.

Section 2244(d)(1)(A)

Cook’s judgment became final on June 10, 1997, 90 days after the Nebraska
Supreme Court overruled Cook’s motion for rehearing following his direct appeal.
See Gonzalez v. Thaler, 132 S. Ct. 641, 653-54 (2012) (holding that for petitioners
who do not seek review in the United States Supreme Court, the judgment becomes
final “when the time for pursuing direct review in [the United States Supreme Court],
or in state court, expires.”); see also Sup. Ct. R. 13.3 (stating the time to file a petition
for a writ of certiorari runs from the date of the denial of rehearing if a petition for
rehearing is timely filed in the lower court).
Cook filed his petition in this case more than 16 years after his judgment
became final. Thus, Cook’s petition was not filed within one year of the date on
which his judgment became final. See 28 U.S.C. § 2244(d)(1)(A). Cook’s state postconviction actions do nothing to toll the limitations period because Cook filed his first
such action in 2003, after the one-year limitations period had already expired.
2.

28 U.S.C. § 2244(d)(1)(C) and (d)(1)(D)

Cook argues his petition is timely under § 2244(d)(1)(C) and (d)(1)(D) because
the limitations period should be calculated from the date of the Supreme Court’s
holding in Miller v. Alabama, 132 S. Ct. 2455 (2012). In Miller, the Court held “that
mandatory life without parole for those under the age of 18 at the time of their crimes
violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”
Miller, 132 S. Ct. at 2460. Cook, who was 18 years and 54 days old when he
committed murder, argues the holding in Miller applies to him because his “mental
age was that of a juvenile when the crime was committed.” (Filing No. 1 at CM/ECF
p. 16.)
The holding in Miller is not applicable to Cook. The undersigned judge, like
the Supreme Court in Roper v. Simmons, 543 U.S. 551, 574 (2005), recognizes that
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“[t]he qualities that distinguish juveniles from adults do not disappear when an
individual turns 18.” However, the holding in Miller is very clearly limited to juvenile
offenders who were under age 18 at the time their crimes were committed. Because
Miller is inapplicable to Cook, his argument that the limitations period runs from the
date Miller was decided fails.
For the reasons discussed above, Cook did not file his petition within the oneyear limitations period set forth in § 2244(d)(1). Cook has not argued that he is
entitled to equitable tolling of the limitations period, see Walker v. Norris, 436 F.3d
1026, 1032 (8th Cir. 2006), or that he is actually innocent of the crime for which he
has been convicted, see McQuiggins v. Perkins, 133 S. Ct. 1924, 1928 (2013).
Accordingly, there is no basis upon which the court may excuse Cook’s failure to
comply with AEDPA’s statute of limitations.
B.

Merits of Cook’s Claim

Even if Cook had filed his petition within the one-year limitations period, his
claim is meritless. The court may grant a writ of habeas corpus only if the state
court’s decision was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States,”
28 U.S.C. § 2254(d)(1), or was “based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding,” 28 U.S.C.
§ 2254(d)(2).
Citing the Supreme Court’s holding in Miller, Cook argues in his petition that
the mandatory life sentence he received violates the Eighth Amendment because he
was only 18 years and 54 days old at the time his crime was committed. (Filing No.
1 at CM/ECF pp. 15-16.) The state district court and the Nebraska Supreme Court
considered and rejected this argument. Specifically, the state district court held, in
part, that the holding in Miller is inapplicable to Cook because he was over the age of

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18 when he committed murder. (See Filing No. 10-12 at CM/ECF pp. 137-139.) As
discussed above, the undersigned judge agrees that Miller is inapplicable to Cook.
The Nebraska state courts’ findings of fact and conclusions of law are entitled
to deference under the statutory standard of review that applies to factual and legal
conclusions reached by the state courts. Cook has not established that the state courts’
decisions were “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States,”
28 U.S.C. § 2254(d)(1), or that the state courts reached “a decision that was based on
an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding,” 28 U.S.C. § 2254(d)(2). Accordingly, Cook is not entitled
to the grant of a writ of habeas corpus in this matter.
III. MOTION TO STAY
Cook filed a motion seeking a stay of these proceedings while he exhausts an
additional claim. (Filing No. 7.) Cook states he filed a third post-conviction action
in the state district court on February 24, 2014, in which he raised the following claim
for relief: “The Petitioner’s sentence of life without parole is void where it acts to
usurp the Constitutional powers of the Board of Parole to grant discretionary relief.”
Cook argues the factual predicate of this claim could not have been discovered until
the Nebraska Supreme Court issued its decision in State v. Castaneda, 842 N.W.2d
740 (Neb. 2014), on February 7, 2014.
A stay and abeyance of a federal habeas corpus petition is only appropriate in
“limited circumstances.” Rhines v. Weber, 544 U.S. 269, 277 (2005). A court may
order a stay and abeyance only when there is good cause for the petitioner’s failure
to exhaust his claims in state court, the claims are not “plainly meritless,” and the
petitioner has not “engaged in intentionally dilatory litigation tactics.” Id. at 277-278.

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Cook argues the claim he seeks to exhaust in Nebraska’s state courts is timely
under § 2244(d)(1)(D) because its factual predicate could not have been discovered
until the Nebraska Supreme Court issued its decision in Castaneda on February 7,
2014. See § 2244(d)(1)(D) (“The limitation period shall run from . . . the date on
which the factual predicate of the claim or claims presented could have been
discovered through the exercise of due diligence.”). In Castaneda, the Nebraska
Supreme Court held that “Nebraska’s sentence of life imprisonment is effectively life
imprisonment without parole under the rationale of Miller . . . because it provides no
meaningful opportunity to obtain release.” 842 N.W.2d at 758-59.2 Cook, who was
not a juvenile at the time he committed his crime, does not explain how Castaneda is
relevant to his case.
Moreover, Cook does not explain what facts he discovered as a result of the
court’s holding in Castaneda. Rather, his argument appears to be that
Castaneda provides him a new avenue for attacking his life sentence in Nebraska’s
state courts. While the holding in Castaneda may be a modification or clarification
of state law, it is not a “factual predicate” under § 2244(d)(1)(D). See E.J.R.E. v.
United States, 453 F.3d 1094, 1098 (8th Cir. 2006) (holding that decision by federal
court of appeals was not a “new fact” because the determination of whether statutory
amendment was retroactively applicable was “a ruling exclusively within the domain
of the courts and is incapable of being proved or disproved.”)3; see also Lo v.
2

At the time Castaneda was sentenced, Nebraska’s statutes provided that a
juvenile convicted of first degree murder was subject to mandatory life imprisonment.
The statutes did not expressly contain the qualifier “without parole.” However,
because it provided no “meaningful opportunity” to obtain release, the Nebraska
Supreme Court held Nebraska’s sentence of life imprisonment was effectively life
imprisonment “without parole” under the rationale of Miller. See Castaneda, 842
N.W.2d at 758-59.
3

E.J.R.E. dealt with 28 U.S.C. § 2255(f), the counterpart to 28
U.S.C. § 2244(d)(1)(D), that applies to habeas corpus motions filed by prisoners
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Endicott, 506 F.3d 572, 576 (7th Cir. 2007) (“[W]e do not find that a state court
decision modifying substantive law constitutes a “factual predicate” under
§ 2244(d)(1)(D) justifying a new one-year limitations period.”); Phillips v. United
States, 734 F.3d 573, 580 (6th Cir. 2013) (holding that decision by federal court of
appeals was newly-discovered law, not a newly-discovered fact); Shannon v.
Newland, 410 F.3d 1083, 1089 (9th Cir. 2005) (“If a change in (or clarification of)
state law, by a state court, in a case in which [petitioner] was not a party, could qualify
as a ‘factual predicate,’ then the term ‘factual’ would be meaningless.”).
In short, the court will not order a stay and abeyance in this matter because the
claim Cook seeks to exhaust in Nebraska’s state courts is merely another collateral
attack of his life sentence. As discussed above, Cook’s judgment became final on
June 10, 1997, and he did not seek habeas corpus relief in this court until December
17, 2013.
IV. 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).

attacking their federal sentences. The two provisions are nearly identical and the
Supreme Court has interpreted them in concert with one another. See, e.g.,
Lackawanna Cnty. Dist. Atty. v. Coss, 532 U.S. 394, 402 (2001).
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In this case, Cook 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.
IT IS THEREFORE ORDERED that:
1.
Cook’s Petition for Writ of Habeas Corpus (Filing No. 1) is denied in all
respects and this action is dismissed with prejudice.
2.

Cook’s Motion to Stay Proceedings (Filing No. 7) is denied.

3.
In light of the foregoing, Cook’s Motion for Status (Filing No. 21) is
denied as moot.
4.
A separate judgment will be entered in accordance with this
Memorandum and Order.
DATED this 26th day of September, 2014.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District
of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
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