Hernandez v. Sabatka-Rine
Filing
17
MEMORANDUM OPINION regarding MOTION for Summary Judgment 14 filed by Diane Sabatka-Rine, MOTION for Concession 16 filed by Juan Antonio Hernandez. The Court finds petitioner is not entitled to relief in this case. 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)(SLP)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JUAN ANTONIO HERNANDEZ,
)
)
Petitioner,
)
)
v.
)
)
DIANE SABATKA-RINE,
)
Warden, Nebraska State
)
Penitentiary,
)
)
Respondent.
)
______________________________)
4:14CV3172
MEMORANDUM OPINION
This matter is before the Court on respondent Diane
Sabatka-Rine’s (“Respondent”) Motion for Summary Judgment (Filing
No. 14), and petitioner Juan Antonio Hernandez’s (“Petitioner”)
“Motion for Concession” (Filing No. 16).
As set forth below, the
Court will dismiss the petition with prejudice because it is
barred by the statute of limitations.
I.
BACKGROUND
Petitioner pled guilty to first degree sexual assault
and child abuse on May 4, 2010, in the District Court of Dakota
County, Nebraska (“state district court”) (Filing No. 13-2 at
CM/ECF pp. 36-37).
On June 8, 2010, the state district court
sentenced petitioner to 16-17 years imprisonment on the sexual
assault charge, and 18-20 months imprisonment on the child abuse
charge (Filing No. 13-1 at CM/ECF p. 10).
Petitioner did not
file a direct appeal from his conviction and sentence.
He filed
a motion for postconviction relief in the state district court on
August 6, 2012, which the state district court denied in orders
dated October 23, 2012, and July 12, 2013 (Filing No. 13-2 at
CM/ECF pp. 13-38).
Petitioner filed his habeas corpus petition in this
court on August 21, 2014 (Filing No. 1).
Respondent moved for
summary judgment on January 28, 2015 (Filing No. 14).
Thereafter, petitioner “move[d] to concede his motion for habeas
courpus [sic]” on February 25, 2015 (Filing No. 16).
II.
DISCUSSION
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;
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(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 is tolled
while state post-conviction or other collateral review is
pending.”
King v. Hobbs, 666 F.3d 1132, 1135 (8th Cir. 2012)
(citing 28 U.S.C. § 2244(d)(2)).
Respondent argues petitioner’s habeas corpus petition
is barred by the limitations period set forth in 28 U.S.C.
§ 2244(d).
Respondent set forth the following in her brief:
The state district court entered
its judgment on June 10, 2010, and,
because Petitioner did not appeal
from that judgment, his convictions
became final on July 10, 2010
(i.e., upon the expiration of the
time for seeking direct review).
See Neb. Rev. Stat. § 25-1912(1)
(Reissue 2008) (stating a defendant
must file an appeal within 30 days
after the district court enters its
judgment). As such, the Petitioner
had one year, or until July 10,
2011, to file his habeas petition.
He failed to do so. And because
Petitioner filed his postconviction
motion on August 6, 2012 -- more
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than one year after the limitations
period in § 2244(d) had expired -said motion did not toll the time
for filing Petitioner’s habeas
petition.
(Filing No. 15 at CM/ECF pp. 2-3.)
After respondent filed her
summary judgment motion, petitioner “move[d] to concede” his
habeas corpus petition (See Filing No. 16).
The Court has carefully reviewed the parties’
submissions and the state court records and agrees that
petitioner’s habeas corpus petition is barred by the limitations
period set forth in § 2244(d).
Petitioner has not presented the
Court with any reason to excuse him from the procedural bar of
the statute of limitations.
Accordingly, the Court finds
petitioner is not entitled to relief in this case.
A separate
order will be entered in accordance with this memorandum opinion.
DATED this 18th day of May, 2015.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court
*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 provide on their Web sites. Likewise, the Court has no agreements with
any of these third parties 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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