Harper v. NE DOC

Filing 13

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)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CLYDE ERNEST HARPER,

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Petitioner,
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V.
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SCOTT R. FRAKES, NCCS Director )
NDCS, and BRIAN GAGE, Warden )
TSCI,
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Respondents.
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8:15CV301

MEMORANDUM
AND ORDER

This matter is before the court on Respondents’ Motion for Summary Judgment.
(Filing No. 11.) Respondents argue that Petitioner’s Petition for Writ of Habeas
Corpus (“petition”) (Filing No. 1) should be dismissed because it 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.
I. BACKGROUND
Petitioner was convicted of two counts of sexual assault of a child. (Filing No.
6 at CM/ECF p. 1.) The Nebraska Court of Appeals affirmed the conviction, and
Petitioner’s request for further review was denied on December 22, 2004. (Filing No.
10-1 at CM/ECF p. 2.) The mandate issued on January 10, 2005. (Filing No. 10-1 at
CM/ECF p. 2.)
Petitioner filed a motion for DNA testing in the District Court of Douglas
County, Nebraska on May 2, 2014. (Filing No. 6 at CM/ECF p. 68.) The state court
denied Petitioner’s motion on September 9, 2014. (Filing No. 6 at CM/ECF p. 80.)
Petitioner appealed, and the state court judgment was affirmed on March 2, 2015.
(Filing No. 10-1 at CM/ECF p. 4.) The mandate issued on April 9, 2015. (Filing No.

10-1 at CM/ECF p. 4.)
Petitioner filed his habeas petition on August 13, 2015. (Filing No. 1.)
Petitioner filed an amended petition on February 1, 2016. (Filing No. 6.) Respondents
filed a Motion for Summary Judgment on February 25, 2016. (Filing No. 11.) To
date, Petitioner has not responded to Respondents’ summary judgment motion.
II. DISCUSSION
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).
Petitioner’s habeas petition is untimely. Petitioner’s request for further review
was denied on December 22, 2004, and the mandate issued on January 10, 2005.
(Filing No. 10-1 at CM/ECF p. 2.) See Curtiss v. Mount Pleasant Correctional
Facility, 338 F.3d 851, 853 (8th Cir. 2003) (holding that a judgment becomes 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 writ of
certiorari with the United States Supreme Court). However, Petitioner did not file his
motion for DNA testing until May 2, 2014. It is well-established that “the time
between the date that direct review of a conviction is completed and the date that an
application for state post-conviction relief is filed counts against the one-year period.”
Painter v. State of Iowa, 247 F.3d 1255, 1256 (8th Cir. 2001). Therefore, the one-year
limitations period expired long before Petitioner’s habeas petition was filed.

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Petitioner has not explained why he should be excused from the procedural bar
of the statute of limitations, and the court finds no basis for doing so. Petitioner is not
entitled to equitable tolling because he has not demonstrated that he pursued his rights
diligently or that some extraordinary circumstance prevented him from seeking habeas
relief. Walker v. Norris, 436 F.3d 1026, 1032 (8th Cir. 2006). Moreover, Petitioner
is not entitled to the protection 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 pointed to any new evidence indicating 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
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:
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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 8th day of June, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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