Leon v. State of Nebraska et al

Filing 32

MEMORANDUM OPINION - In this case, Leon 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 or amended petition are debatable among reasonable jurists, that a court could resolve the issues differently, or that the issues deserve further proceedings. Accordingly, a certificate of appealability will not be issued 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)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
IRA R. LEON,

)
)
Petitioner,
)
)
v.
)
)
STATE OF NEBRASKA, and SCOTT )
FRAKES, Director of the
)
Nebraska Department of
)
Corrections,
)
)
Respondents.
)
______________________________)

8:14CV16

MEMORANDUM OPINION

This matter is before the Court on respondents’ Motion
for Summary Judgment (Filing No. 13).

Respondents argue that

petitioner Ira Leon’s (“Leon”) habeas corpus action brought
pursuant to 28 U.S.C. § 2254 must be dismissed because it is
barred by the statute of limitations.
I.
A.

The Court agrees.

BACKGROUND

Conviction and Sentence
The Court states the facts as they were recited by the

Nebraska Supreme Court in State v. Leon, 781 N.W.2d 608 (Neb.
2010) (affirming state district court’s denial of motion for DNA
testing).

See Bucklew v. Luebbers, 436 F.3d 1010, 1013 (8th Cir.

2006).
Leon was charged with first degree murder, robbery, and
use of a weapon to commit a felony in the February 19, 1992,

death of Bettie Christensen.

Leon had originally been charged

with premeditated murder or, in the alternative, felony murder.
But pursuant to a plea bargain, Leon agreed to plead no contest
to premeditated first degree murder, robbery, and use of a weapon
to commit a felony.

In exchange, the State of Nebraska (“State”)

amended the information against Leon, striking that portion
charging him with felony murder.

The State also agreed not to

seek the death penalty or the maximum terms of imprisonment for
the robbery and use charges, and further agreed not to present
any additional evidence at sentencing.

Per the agreement, the

State was permitted to ask the state district court for a minimum
period of incarceration of 17 years in addition to Leon’s life
sentence for the first degree murder conviction.
In support of the no contest plea, the State alleged
that at around 10:10 p.m. on February 19, 1992, Leon and another
man, Stacey Fletcher, entered the Barn Store, a convenience store
located in North Platte, Nebraska.

Leon and Fletcher were in

possession of two tire irons at the time they entered the store.
Upon realizing that Leon and Fletcher were going to rob the
store, Christensen, the store clerk, screamed and ran toward the
back room.

According to Fletcher, at that point, Leon began

beating Christensen about the head.

After Christensen was dead,

Leon and Fletcher stole $400 to $500 in cash from the cash
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register and left the store.
North Platte residence.

They were later apprehended at a

The tire irons were recovered.

Both

tire irons tested positive for the presence of human blood.
tire iron also had hair resembling the victim’s on it.

One

In

addition, a customer who entered the store at the time of the
murder and robbery positively identified Leon.
Leon was sentenced to consecutive terms of life
imprisonment for first degree murder, 12 to 25 years imprisonment
for robbery, and 5 to 10 years imprisonment for use of a weapon
to commit a felony.
B.

He did not file a direct appeal.

Postconviction Motion and Appeal
Leon filed a motion for postconviction relief in the

state district court on January 28, 1993, which the state
district court denied on August 20, 1993.
CM/ECF pp. 1-6.)

(Filing No. 14-2 at

The Nebraska Court of Appeals affirmed the

state district court’s decision on April 21, 1994.
14-1 at CM/ECF p. 2.)

(Filing No.

Leon did not petition the Nebraska Supreme

Court for further review.
C.

Motion for DNA Testing
Leon filed a motion for DNA testing in the state

district court on May 4, 2009.

He alleged that DNA evidence

would show Fletcher, not Leon, actually caused Christensen’s
death.

(Filing No. 14-6 at CM/ECF pp. 1-3.)
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The state district

court denied the motion on June 15, 2009.
7.)

The Nebraska Supreme Court affirmed the state district

court’s decision on April 23, 2010.
D.

(Id. at CM/ECF pp. 4-

Leon, 781 N.W.2d at 608.

Habeas Corpus Action
Leon filed his Petition for Writ of Habeas Corpus

(“petition”) in this Court on January 15, 2014 (Filing No. 1).
He filed an Amended Petition for Writ of Habeas Corpus (“amended
petition”) (Filing No. 8) on July 21, 2014.

Thereafter,

respondents moved for summary judgment (Filing No. 13), arguing
the petition and amended petition were barred by the relevant
statute of limitations.

In response to the summary judgment

motion, Leon argued that he is actually innocent of Christensen’s
murder and the robbery of the Barn Store (Filing No. 19).
Respondents submitted evidence of Leon’s guilt in response to
Leon’s assertion of actual innocence, and the parties engaged in
additional briefing (Filing Nos. 27, 28, and 30).

The Court has

carefully reviewed all of the briefs and materials filed by the
parties, and it considers this matter fully submitted for
disposition.
II.

ANALYSIS

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
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relief that runs from the latest of four specified dates.
U.S.C. § 2244(d)(1).

28

Here, it is undisputed that Leon filed his

petition for federal habeas relief more than one year from any of
these four dates.

The questions the Court must consider in this

case are whether (1) Leon may be excused from the procedural bar
of the statute of limitations under the miscarriage of justice
exception, and (2) the limitations period may be subject to
equitable tolling.
The Court understands Leon’s arguments with respect to
both questions to be as follows:

Leon is entitled to this

Court’s review of his habeas corpus action because of evidence he
“discovered” on or about May 4, 2009.

According to Leon, when

the State turned over its work product to him as he prepared his
motion for DNA testing, he discovered a statement made by Diane
Sivits to police two days after Bettie Christensen’s murder.
Sivits, a Barn Store employee, reported to police that one day
after the murder, she discovered $524 in cash and also a check
initialed by Christensen inside the Barn Store within a candy box
used to store empty money wrappers.

Sivits stated she did not

understand how the money was not found during a search of the
Barn Store following the murder.

She also stated she was asked

by Barn Store managers to keep quiet about the money.

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(See

Filing No. 8 at CM/ECF pp. 46-47.)

Sivits’s voluntary statement

reads, in part:
On 2-20-92 in the afternoon after
4:00 pm. I was [as]ked by Dee
Harold Barn Store manager to come
in [an]d close. After being there
for a while everyone [l]eft.
Leaving Dee and I alone[.]
I went to bundle $20 bills in $100
wrappers [wh]en pulling out candy
box containing the empty wrappers
found $524 in cash $1-$20 and check
initialed by [B]etty C. folded on
top inside box. I asked Dee what’s
[th]is? She called John Haines
(store owner) explained [to] him we
found some money it must be from
[W]ednesday’s drawer. She told him
if turned over to [p]olice they
would keep it till end of trial.
This is [a]ll I heard of
conversation. I don’t [k]now what
happened to money.
. . . .
Later John came to store and
quietly said [t]o me don’t say
anything about money the police
[f]ound enough on the guy to nail
him.
I’m lost why it wasn’t found in
search [o]f premise[s].
(Id. at CM/ECF pp. 47-48.)
Leon argues Sivits’s statement proves he did not rob
the Barn Store.

Essentially, Leon argues the statement shows he

cannot be guilty of killing Christensen under a felony-murder
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theory because the statement proves no robbery occurred.

In

addition, Leon argues DNA evidence, if it were tested, would show
he cannot be guilty of killing Christensen under a premeditatedmurder theory because the DNA evidence would prove that Fletcher,
not Leon, beat Christensen with the tire iron.

(Filing No. 8 at

CM/ECF p. 63; Filing No. 19 at CM/ECF p. 3.)
A.

Actual Innocence
In McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013),

the Supreme Court held that a habeas petitioner who can show
actual innocence under the rigorous standard of Schlup v. Delo,
513 U.S. 298 (1995), is excused from the procedural bar of the
statute of limitations under the miscarriage of justice
exception.

A habeas petitioner, who seeks to overcome the

statute of limitations upon a showing of “actual innocence,” must
support his allegations with “new, reliable evidence” that was
not presented at trial and must show that it was more likely than
not that, in light of the new evidence, no juror, acting
reasonably, would have voted to find the petitioner guilty beyond
a reasonable doubt.

Schlup, 513 U.S. at 329.

The evidence offered by Leon in this action is the
statement Diane Sivits made to police about the money she found
at the Barn Store the day after the murder.

This evidence is

insufficient to satisfy the actual-innocence standard.
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First,

the evidence does not qualify as “new evidence.”

Evidence is new

only if it was “‘not available at trial and could not have been
discovered earlier through the exercise of due diligence.’”
Osborne v. Purkett, 411 F.3d 911, 920 (8th Cir. 2005) (quoting
Amrine v. Bowersox, 238 F.3d 1023, 1029 (8th Cir. 2001)).

The

statement made by Diane Sivits to police was available to the
defense prior to Leon’s plea.

Indeed, Leon argues in his

petition that his counsel knew about Sivits’s discovery of the
money prior to the plea.

(See Filing No. 8 at CM/ECF p. 71

(“Leon’s counsel . . . knew that the money alleged stolen from
the Barn Store February 19, 1992 was found in the store and in
fact never stolen.

How Leon’s plea of no-contest was accepted is

beyond belief[.]”); id. at CM/ECF p. 70 (“No one can believe that
the county attorney, Leon’s counsel, or the district court, did
not know of [Diane Sivits’ statement].

They hid its’ existence

and Leon obtained it only because he got lucky[.]”).)

In

addition, prior to Leon’s plea, the prosecution provided the
defense with a list of witnesses expected to testify.

This list

explicitly refers to Diane Sivits and the fact that she made a
statement to the police.

(See Filing No. 24-2 at CM/ECF p. 105.)

In short, evidence of Diane Sivits’s statement is not new and
would have been available at trial.

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Second, even if the Court were to consider the
statement as new evidence, any conflicting evidence about what
was specifically taken from the Barn Store would be insufficient
to establish Leon’s actual innocence because a juror could still
have concluded that Leon committed a robbery.

Indeed, at Leon’s

plea, the prosecution’s recitation of facts provided that
witnesses would testify that Leon and the co-defendant “took
money out of the cash register (emphasis added)” and left “with
an undetermined amount of cash;” the Barn Store owner believing
it to be “between four or $500 somewhere in that neighborhood.”
(Filing No. 24-8 at CM/ECF p. 46.)

Moreover, respondents point

to ample evidence in the record that Leon and the co-defendant
robbed the store, such as statements by witnesses that Leon had a
significant amount of cash when he returned from the Barn Store
that he did not have prior to going to the Barn Store.
No. 27 at CM/ECF p. 6.)

(Filing

See Connolly v. Howes, 304 Fed. Appx.

412, 418 (6th Cir. 2008) (“Because [the petitioner] is claiming
actual innocence after having entered a no-contest plea, this
Court considers ‘any admissible evidence of petitioner’s guilt
even if that evidence was not presented during petitioner’s plea
colloquy[.]’”) (quoting Bousley v. United States, 523 U.S. 614,
624 (1998)).

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Leon argues the discovery of the money in the candy box
proves no robbery occurred because the $524 found in the candy
box is roughly the same amount he is accused of taking from the
Barn Store.

However, there is nothing in the record to suggest

Leon was suspected of taking the specific money found in the
candy box.

Indeed, the discovery of the money in the candy box

was made known to law enforcement two days after the murder
occurred.
Leon has failed to show actual innocence under the
rigorous standard of Schlup v. Delo.

He has not presented this

Court with new, reliable evidence that shows it was more likely
than not that no juror acting reasonably would have voted to find
him guilty beyond a reasonable doubt of Christensen’s murder and
the robbery of the Barn Store.
B.

Equitable Tolling
Here, the Court asks whether an extraordinary

circumstance prevented Leon from filing his petition on time in
this Court.

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).

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The Court has carefully reviewed Leon’s amended
petition and his brief in opposition to respondents’ summary
judgment motion.

He identified no extraordinary circumstance

that prevented him from filing his petition in this Court within
the limitations period.

Leon has not demonstrated the

applicability of equitable tolling, and there is no basis upon
which the Court may excuse his failure to comply with AEDPA’s
statute of limitations.
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.
Fed. R. App. P. 22(b)(1).

28 U.S.C. § 2253(c)(1);

A certificate of appealability cannot

be granted unless the petitioner “has made a substantial showing
of the denial of a constitutional right.”
§ 2253(c)(2).

28 U.S.C.

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, Leon 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 or amended
petition are debatable among reasonable jurists, that a court
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could resolve the issues differently, or that the issues deserve
further proceedings.

Accordingly, a certificate of appealability

will not be issued in this case.

A separate order will be

entered in accordance with this memorandum opinion.
DATED this 6th day of July, 2015.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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