Wilson v. Peart et al

Filing 6

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: Wilson must show cause within 30 days of the date of this Memorandum and Order why this case should not be dismissed as barred by the governing statute of limitations. Petitioner is warned that failure to comply as directed will result in dismissal of this case for want of prosecution pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The clerk's office is directed to set a pro se case management deadline in this matter: September 5, 2014: Check for response from petitioner. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HAROLD B. WILSON,
Petitioner,
v.
MARIO PEART, and STATE OF
NEBRASKA, et al,
Respondents.

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8:14CV152

MEMORANDUM
AND ORDER

This matter is before the court on initial review of Harold Wilson’s (“Petitioner”
or “Wilson”) Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254
(Filing No. 1). Wilson is incarcerated in the Lincoln Correctional Center in Lincoln,
Nebraska. In 1986, Wilson was convicted of robbery, attempted kidnapping, attempted
felony murder, and attempted first degree sexual assault in the District Court of
Dawson County, Nebraska (“state district court”). For the reasons discussed below,
it appears Wilson’s petition is barred by the governing one-year statute of limitations
found in 28 U.S.C. § 2244(d). Accordingly, the court will order Wilson to show cause
within 30 days why this case should not be dismissed.
I. BACKGROUND
According to the petition, Wilson was convicted of robbery, attempted
kidnapping, attempted felony murder, and attempted first degree sexual assault in
1986. On a date not specified in the petition, Wilson appealed his conviction and
sentence to the Nebraska Supreme Court, which affirmed the conviction and sentence
without issuing an opinion. (Filing No. 1 at CM/ECF p. 2.) Thereafter, on a date not
specified in the petition, Wilson filed a motion for postconviction relief in the state
district court. (Id.) The state district court dismissed some of the claims Wilson raised
in his postconviction motion on November 15, 2012. (Id. at CM/ECF p. 3.) The state
district court dismissed the remaining claims on February 27, 2013. (Id. at CM/ECF

p. 9.) Wilson appealed the state district court’s February 27 order, but it was dismissed
by the Nebraska Court of Appeals for lack of jurisdiction on May 13, 2013. (Id. at
CM/ECF p. 10.) Wilson filed a petition for further review in the Nebraska Supreme
Court, but the petition was denied on August 16, 2013. (Id. at CM/ECF p. 29.)
Wilson filed his habeas corpus petition in this court on May 15, 2014. This
court’s records reflect that this is Wilson’s first attempt at habeas corpus relief. Wilson
argues in his petition that the Nebraska Court of Appeals erred in dismissing his appeal
for lack of jurisdiction pursuant to Nebraska Court Rules of Appellate Procedure.
(Filing No. 1-1 at CM/ECF p. 1.) Wilson also argues that his petition was timely filed
because his post-conviction action was not final until August 16, 2013. (Id. at
CM/ECF p. 10.) In addition, Wilson argues that he is “actually innocent” of attempted
felony murder and attempted first degree sexual assault. (Id. at CM/ECF p. 10.) With
respect to the attempted felony murder conviction, Wilson argues he is actually
innocent because he did not take any substantial steps toward the crime of murder and
also because “[a] review of the Nebraska statutes and case law supports that attempted
felony murder is not a crime in Nebraska.” (Id. at CM/ECF pp. 5-6.) With respect to
the attempted first degree sexual assault conviction, Wilson argues that he did not
know that penetration was a necessary element of the first degree sexual assault statute.
(Id. at CM/ECF pp. 7-8.) Wilson does not explain how this is relevant to his claim of
actual innocence. Presumably, Wilson is arguing that he did not penetrate the victim
so he cannot be guilty of attempted first degree sexual assault.
II. STATUTE OF LIMITATIONS
A district court may consider, sua sponte, the timeliness of a state prisoner’s
habeas corpus petition. See Day v. McDonough, 547 U.S. 198, 209 (2006). The
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 1214,
establishes a 1-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). However, the 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.”).
In Nichols v. Bowersox, the Eighth Circuit Court of Appeals held that the time
before the effective date of AEDPA (April 24, 1996), is not counted in computing the
one-year period of limitation. Nichols, 172 F.3d 1068, 1073 (8th Cir. 1999), abrogated
on other grounds by Riddle v. Kemna, 523 F.3d 850, 856 (8th Cir. 2008). Prisoners
whose judgments of conviction became final before the effective date of AEDPA are
given a one-year period after that date, or until April 24, 1997, plus any additional

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period during which the statute is tolled. Peterson v. Gammon, 200 F.3d 1202, 1204
(8th Cir. 2000).
III. DISCUSSION
The court begins its discussion by noting that the sole argument Wilson clearly
raises in his petition—that the Nebraska Court of Appeals erred in dismissing his
appeal for lack of jurisdiction pursuant to Nebraska Court Rules of Appellate
Procedure—is not cognizable in a habeas corpus action. The text of 28 U.S.C. § 2254
states that a court may entertain an application for a writ of habeas corpus “only on the
ground that [the petitioner] is in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2254(a). Wilson argues in his habeas
corpus petition that a state court wrongly applied its own rules of procedure. Such an
argument does not allege a violation of the Constitution or laws or treaties of the
United States.
To the extent Wilson intended to raise any claims in his petition that would be
cognizable in a federal habeas corpus action (such as claims concerning the effective
assistance of trial counsel), the court is concerned that the petition is untimely. It
appears from the face of Wilson’s petition that Wilson’s judgment of conviction
became final before the effective date of AEDPA. Thus, he had one year, or until
April 24, 1997, to file for federal habeas corpus relief. Wilson filed his petition in this
court on May 15, 2014, more than 17 years later. Thus, absent sufficient tolling or an
equitable exception, any claims related to Petitioner’s conviction or sentence are barred
by the statute of limitations.
A.

Statutory Tolling

As set forth above, section 2244(d)(2) tolls the statute of limitations during the
pendency of “a properly filed application for State post-conviction or other collateral
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review.” Here, Petitioner does not specify the date on which he filed for
postconviction relief in the state district court. However, unless his postconviction
action was pending in state court for more than 15 years, Petitioner cannot demonstrate
the availability of 17 years of statutory tolling.
B.

Equitable Tolling

AEDPA’s statute of limitations is subject to equitable tolling “in appropriate
cases.” Holland v. Florida, 560 U.S. 631, 645 (2010) (citations omitted). 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).
Wilson does not argue in his petition that AEDPA’s statute of limitations is
subject to equitable tolling. However, on the court’s own motion, Plaintiff will be
given an opportunity to show cause why this case should not be dismissed as barred
by the governing statute of limitations. He may discuss any pleas for equitable tolling
in his response to the court’s order to show cause.
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. Ct. 1928. The Court held that a petitioner attempting to show
actual innocence is required to produce new evidence sufficient to persuade the district
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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)). Actual innocence means factual innocence, not legal innocence or legal
insufficiency. Narcisse v Dahm, 9 F.3d 38, 40 (8th Cir. 1993).
Wilson has produced no new evidence in support of a claim that he is actually
innocent. However, on the court’s own motion, Plaintiff will be given an opportunity
to show cause why this case should not be dismissed as barred by the governing statute
of limitations. He may produce new evidence in support of his actual-innocence claim
in his response to the court’s order to show cause.
IT IS THEREFORE ORDERED that:
1.
Wilson must show cause within 30 days of the date of this Memorandum
and Order why this case should not be dismissed as barred by the governing statute of
limitations. Petitioner is warned that failure to comply as directed will result in
dismissal of this case for want of prosecution pursuant to Rule 41(b) of the Federal
Rules of Civil Procedure.
2.
The clerk’s office is directed to set a pro se case management deadline in
this matter: September 5, 2014: Check for response from petitioner.
DATED this 1st day of August, 2014.
BY THE COURT:

s/ Joseph F. Bataillon
United States District Judge
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