Sellers v. Frakes et al

Filing 18

MEMORANDUM AND ORDER - Petitioner's petition is dismissed with prejudice, and the court will not issue a certificate of appealability in this matter. The court will enter a separate judgment in accordance with this order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TERRY J. SELLERS,
Petitioner,
V.
SCOTT FRAKES, Director of the
Nebraska Department of Corrections,
and STATE OF NEBRASKA,
Respondents.

)
)
)
)
)
)
)
)
)
)
)
)

8:15CV192

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner’s Petition for Writ of Habeas
Corpus (“petition”). (Filing No. 1.) Respondent argues that the petition is barred by
the limitations period set forth in 28 U.S.C. § 2244(d). The court agrees and will
dismiss the petition with prejudice.1
I. BACKGROUND
Petitioner was convicted of two counts of first degree murder, one count of
attempted murder, and three counts of use of a deadly weapon to commit a felony.
State v. Sellers, 279 Neb. 220, 223, 777 N.W.2d 779, 784 (2010). The conviction was
affirmed on direct appeal by the Nebraska Supreme Court on January 15, 2010, and
the mandate issued on January 26, 2010. (Filing No. 12-1 at CM/ECF p. 6.)

Respondent did not actually file a motion for summary judgment or answer
in this case. Rather, Respondent filed state court records and a “Brief in Support of
Respondent’s Motion for Summary Judgment.” (Filing Nos. 12, 13.) Nonetheless,
Petitioner filed a “Response to the State’s Motion for Summary Judgment” (Filing
No. 14), as well as a “Memorandum Brief in Opposition to State’s Motion for
Summary Judgment.” (Filing No. 15.)
1

Petitioner filed a motion for post-conviction relief on April 18, 2011. (Filing No. 12-2
at CM/ECF p. 1.) The denial of the post-conviction motion was affirmed by the
Nebraska Supreme Court on February 6, 2015, and the mandate on Petitioner’s postconviction motion issued on February 23, 2015. (Filing No. 12-1 at CM/ECF p. 10.)
Petitioner filed his Petition for Writ of Habeas Corpus in this court on June 1, 2015.
(Filing No. 1.)
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 relief that runs from the latest of four specified dates. 28 U.S.C.
§ 2244(d)(1). Here, Petitioner apparently does not dispute, and there is otherwise no
doubt, that he filed his petition for federal habeas relief more than one year from any
of these four dates. (See Filing No. 15 at CM/ECF p. 2.) Instead, Petitioner maintains
that the limitations period is subject to equitable tolling and that he is excused from
the procedural bar of the statute of limitations by the miscarriage of justice exception.
The court disagrees with Petitioner’s contentions.
A.

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).
It is unclear what “extraordinary circumstance” Petitioner contends prevented
him from timely filing his petition. However, even assuming Petitioner could
establish that some extraordinary circumstance made it impossible for him to file his
petition on time, Petitioner has not shown that he pursued his rights diligently. The
mandate on Petitioner’s direct appeal was entered on January 26, 2010, but he did not
2

file his motion for post-conviction relief until April 18, 2011. Then, Petitioner waited
another three months after his post-conviction action was complete to file his petition
in this court. Petitioner has not explained what he did during those periods of time to
pursue any of the claims raised in his petition. For these reasons, Petitioner has not
demonstrated that he is entitled to equitable tolling of the limitations period.
B.

Miscarriage of Justice

Petitioner has likewise failed to show that he is entitled to the protections of the
miscarriage of justice exception. 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 one-year statute
of limitations in § 2244(d)(1) 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 324-27.
Petitioner 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.
Petitioner has produced no new evidence in support of a claim that he is actually
innocent.
For the foregoing reasons, the court will dismiss Petitioner’s petition with
prejudice.
III. CERTIFICATE OF APPEALABILITY
A petitioner cannot appeal an adverse ruling on his petition for writ of habeas
3

corpus under § 2254 unless he is granted a certificate of appealability. 28 U.S.C.
§ 2253(c)(1); 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b)(1). The standards for
certificates (1) where the district court reaches the merits or (2) where the district
court rules on procedural grounds are set for in Slack v. McDaniel, 529 U.S. 473, 484485 (2000). I have applied the appropriate standard and determined Petitioner is not
entitled to a certificate of appealability.
IT IS ORDERED:
1.
Petitioner’s petition is dismissed with prejudice, and the court will not
issue a certificate of appealability in this matter.
2.

The court will enter a separate judgment in accordance with this order.

DATED this 29th day of April, 2016.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

4