Neal v. The State of Nebraska et al
MEMORANDUM AND ORDER that the Respondent's Motion for Summary Judgment (Filing No. 13 ) is granted. Neal's Petition for Writ of Habeas Corpus (Filing No. 1 ) is dismissed with prejudice. The court will enter judgment by separate order. The court will not issue a certificate of appealability in this matter. Ordered by Senior Judge Richard G. Kopf. (Copies mailed as directed) (LAC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SCOTT R. FRAKES,
This matter is before the court on Respondent’s Motion for Summary Judgment
(Filing No. 13). Respondent argues Petitioner Alonzo Neal’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
Conviction and Direct Appeal
Neal was convicted of second degree murder and use of a deadly weapon to
commit a felony on November 3, 2003, following a bench trial in the Douglas County
District Court (“state district court”). (Filing No. 14-3 at CM/ECF p. 1.) The state
district court sentenced Neal to 25 to 35 years’ imprisonment on the murder charge
and 20 to 20 years’ imprisonment on the weapon charge. (Filing No. 14-3 at CM/ECF
p. 2.) Neal appealed to the Nebraska Supreme Court, which denied relief on
September 22, 2004. (Filing No. 14-1 at CM/ECF p. 2.)
Postconviction Motion and Appeal
Neal filed a verified motion for postconviction relief on June 9, 2009. (Filing
No. 14-4 at CM/ECF pp. 1-20.) The state district court denied the motion on February
9, 2010. (Filing No. 14-4 at CM/ECF pp. 21-27.)
Neal appealed the denial of postconviction relief to Nebraska’s appellate courts.
The Nebraska Court of Appeals denied relief on September 23, 2010. (Filing No. 142 at CM/ECF p. 2.) The Nebraska Supreme Court denied Neal’s petition for further
review on January 19, 2011, and issued its mandate on February 2, 2011. (Filing No.
14-2 at CM/ECF p. 2.)
Neal filed his habeas corpus petition (Filing No. 1) in this court on November
13, 2014. Thereafter, Respondent moved for summary judgment (Filing No. 13),
arguing the petition is barred by the statute of limitations. Neal filed a brief (Filing
No. 19) in opposition to Respondent’s motion, and Respondent filed a reply brief
(Filing No. 20). This matter is fully submitted for disposition.
One-Year Limitations Period
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). “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.
Here, Neal’s state court judgment became final on December 21, 2004, which
is 90 days after the Nebraska Supreme Court affirmed his convictions and sentences.
Curtiss v. Mount Pleasant Corr. Facility, 338 F.3d 851, 853 (8th Cir. 2003) (holding
that a judgment is final, under 28 U.S.C. § 2244(d)(1)(A), at the conclusion of all
direct criminal appeals in the state system followed by the expiration of the 90 days
for filing a petition for a writ of certiorari with the United States Supreme Court).
Thus, Neal had until December 21, 2005, to file for federal habeas corpus relief, but
he did not do so until November 13, 2014.
The time during which Neal’s postconviction action was pending does not toll
the one-year limitations period because the limitations period had already expired
when Neal filed his postconviction action.
For the foregoing reasons, the court finds that Neal’s petition is untimely under
28 U.S.C. § 2244(d)(1)(A).
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) (quotation marks and citation
omitted). 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.
Neal made a general reference in his brief to having pursued his rights
diligently, but he offered no explanation for how he pursued his rights diligently. In
addition, Neal did not identify any extraordinary circumstance that impeded his ability
to file his habeas corpus petition sooner. As such, Neal has not presented the court
with any reason to warrant the application of equitable tolling to the limitations
Neal also argued the court should excuse him from the procedural bar of the
statute of limitations under the miscarriage of justice exception. But he did not argue
he is actually innocent of murder or use of a weapon to commit a felony. Rather, he
argues his criminal case should have been dismissed because his constitutional right
to a speedy trial was violated. However, Neal’s assertion is not sufficient to invoke
the miscarriage of justice exception because “[a]ctual innocence means factual
innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 615
For the foregoing reasons, the court finds Neal 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 and he is not entitled to equitable tolling of the
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, Neal 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:
Respondent’s Motion for Summary Judgment (Filing No. 13) is granted.
Neal’s Petition for Writ of Habeas Corpus (Filing No. 1) is dismissed with prejudice.
The court will enter judgment by separate order.
The court will not issue a certificate of appealability in this matter.
DATED this 21st day of October, 2015.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge
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