Peterson v. Lewien

Filing 17

MEMORANDUM AND ORDER - Respondent's Motion for Summary Judgment (Filing No. 10 ) is granted. Peterson's Petition for Writ of Habeas Corpus (Filing No. 1 ) is dismissed with prejudice. A separate Judgment will be entered in accordance with this Memorandum and Order. The court will not issue a certificate of appealability in this matter. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RANDY S. PETERSON,
Petitioner,
v.
LEWIEN,
Respondent.

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8:14CV171

MEMORANDUM
AND ORDER

This matter is before the court on Respondent’s Motion for Summary Judgment
(Filing No. 10). Respondent argues Petitioner Randy Peterson’s Petition for Writ of
Habeas Corpus (Filing No. 1) must be dismissed because it is barred by the limitations
period set forth in 28 U.S.C. § 2244(d). For the reasons discussed below, the court
agrees that Peterson’s habeas corpus petition is barred by the statute of limitations.
I. BACKGROUND
A.

Conviction

On July 6, 2011, a jury in the Madison County District Court (“state district
court”) found Peterson guilty of possession of a firearm by a felon or prohibited
person. Thereafter, the state district court sentenced Peterson to an indeterminate term
of not less than three nor more than five years’ imprisonment. (Filing No. 9-2 at
CM/ECF pp. 85-87.) No direct appeal followed.
B.

Postconviction Motion and Appeal

On December 30, 2011, Peterson filed a motion for postconviction relief in the
state district court. (Id. at CM/ECF p. 97.) The state district court denied
postconviction relief on August 28, 2012. (Id. at CM/ECF p. 120.) Peterson
appealed.

The Nebraska Court of Appeals affirmed the state district court’s judgment on
February 8, 2013. The Nebraska Supreme Court denied Peterson’s petition for further
review on April 10, 2013, and issued a mandate on April 24, 2013. (Filing No. 9-1
at CM/ECF p. 2.)
C.

Petition

Peterson filed his habeas corpus petition in this court on June 6, 2014. (Filing
No. 1.) Thereafter, Respondent moved for summary judgment (Filing No. 10),
arguing the petition is barred by the relevant statute of limitations. Peterson filed two
briefs (Filing Nos. 13 and 16) in opposition to Respondent’s motion.
II. ANALYSIS
A.

Date on Which Judgment Became Final

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. 28 U.S.C.
§ 2244(d)(1). This case concerns only the first date listed in § 2244(d)(1): “the date
on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review[.]” 28 U.S.C. § 2244(d)(1)(A).
Here, it is undisputed that Peterson’s judgment became final on September 22,
2011, the date on which Peterson’s time for pursuing direct review of the state district
court’s judgment and sentence expired. See Gonzalez v. Thaler, 132 S. Ct. 641, 65354 (2012) (holding that, for petitioners who do not pursue direct review all the way
to the United States Supreme Court, a judgment becomes final “when the time for
pursuing direct review in [the Supreme Court], or in state court, expires.”).

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B.

Statutory Tolling

“The statute of limitations is tolled while state post-conviction or other
collateral review is pending.” King v. Hobbs, 666 F.3d 1132, 1135 (2012) (citing 28
U.S.C. § 2244(d)(2)). A post-conviction application is considered pending until the
state court issues its mandate or denies review, even if a petitioner files a petition for
certiorari in the Supreme Court. Lawrence v. Florida, 549 U.S. 327, 332 (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.”).
Peterson filed his motion for postconviction relief on December 30, 2011, 99
days after his judgment became final. These 99 days count toward the one-year
limitations period. The statute of limitations clocked stopped on December 30, 2011.
It began to run again on April 24, 2013, the date on which the Nebraska Supreme
Court issued its mandate concluding the postconviction proceedings. The clock
continued to run until June 6, 2014, when Peterson filed his habeas corpus petition in
this case. Thus, an additional 360 days count toward the one-year limitations period.
In total, more than 500 days count toward the one-year limitations period.
Peterson argues the time during which his request for commutation was pending
before Nebraska’s Board of Pardons is also subject to statutory tolling. (See Filing
No. 13.) However, Peterson’s request for commutation did not toll the one-year
period because such a request is not a vehicle for collateral review of the legality of
the judgment of conviction. See State v. Castaneda, 842 N.W.2d 740, 758 (“[I]n
Nebraska, executive clemency is a free gift from the supreme authority to be bestowed
according to his own discretion. The Board of Pardons thus has the unfettered
discretion to grant or deny a commutation for any reason or for no reason at all.”)
(internal quotation marks omitted). Regardless, even if the court considered this

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period tolled—from October 4, 2012, to June 11, 2013 (see Filing No. 1 at CM/ECF
p. 3)—more than 450 days would still count toward the one-year limitations period.1
For the foregoing reasons, the court finds that Peterson’s petition is untimely
under 28 U.S.C. § 2244(d)(1)(A).
C.

Equitable Tolling and Actual Innocence

The limitations period may be subject to 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). In addition, in McQuiggins
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.
Peterson does not argue that he is entitled to equitable tolling of the limitations
period or that he is actually innocent. As such, Peterson has not presented the court
with any reason to warrant the application of equitable tolling to the limitations
period. In addition, Peterson has not presented the court with any reason to excuse
him from the procedural bar of the statute of limitations under the miscarriage of
justice exception.

Peterson argues his habeas corpus petition was timely filed in this court
because the Board of Pardons denied his request for commutation on June 11, 2013,
and he filed his habeas corpus petition 360 days later, on June 6, 2014. (Filing No.
13 at CM/ECF p. 1.) Peterson’s argument discounts the 99 days that passed between
the date his judgment became final and the date on which he filed his postconviction
motion in the state district court.
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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, Peterson 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.
Respondent’s Motion for Summary Judgment (Filing No. 10) is granted.
Peterson’s Petition for Writ of Habeas Corpus (Filing No. 1) is dismissed with
prejudice.
2.
A separate Judgment will be entered in accordance with this
Memorandum and Order.

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3.

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

DATED this 5th day of January, 2015.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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