Khalaf v. State of Nebraska
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
MAMO K. KHALAF,
STATE OF NEBRASKA, et al.,
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). Respondent also argues that
Petitioner’s claims have been procedurally defaulted. The court agrees and will
dismiss the petition with prejudice.
In September of 2011, Petitioner was charged in the District Court of Lancaster
County Nebraska “with six felony counts following two incidents in which the State
alleged he threatened his estranged wife’s uncle with a firearm in a park and then,
while out on bond, shot his wife’s brother.” (Filing No. 11-3 at CM/ECF p. 1.)
Petitioner pled no contest to terroristic threats, first degree assault, and use of a
firearm to commit a felony. (Filing No. 11-14 at CM/ECF pp. 16-17, 30-31.)
Petitioner was sentenced to consecutive prison terms of 20 months to 5 years for
terroristic threats, 10 to 15 years for first degree assault, and 10 to 15 years for use of
a firearm to commit a felony. (Filing No. 11-11 at CM/ECF pp. 24-27.)
Petitioner, with new counsel, filed a direct appeal to the Nebraska Court of
Appeals, alleging that his sentence was excessive, that consecutive sentencing was in
error, and that trial counsel was ineffective for failing to (1) conduct depositions, (2)
advise Petitioner to proceed to trial, and (3) obtain reduced sentences. (Filing No. 114 at CM/ECF pp. 6, 17.) The Nebraska Court of Appeals summarily affirmed
Petitioner’s convictions and sentences on February 8, 2013, finding that his claims
regarding sentencing were without merit and that the record on direct appeal was
insufficient to review his claims of ineffective assistance of counsel. (Filing No. 11-1
at CM/ECF p. 2.) The Nebraska Supreme Court denied Petitioner’s request for further
review on April 10, 2013. (Id. at CM/ECF p. 3.)
On April 8, 2014, Petitioner filed a motion for postconviction relief in state
district court, which was denied. (Filing No. 11-12 at CM/ECF pp. 28-43, 81-83.)
Petitioner argued that (1) trial counsel was ineffective for failing to (a) properly
interview/depose witnesses to support an alibi defense and (b) move to sever Counts
I through Counts III from Counts IV through VI of the information, and (2) appellate
counsel was ineffective in failing to assign and argue the two instances of trial
The Nebraska Court of Appeals affirmed the state court’s denial of the
postconviction motion on May 8, 2015. (Filing No. 11-3.) The Court of Appeals
found that (1) Petitioner’s claim that trial counsel was ineffective for failing to file a
motion to sever was procedurally barred because it was not raised on direct appeal and
(2) the remaining claim of ineffective assistance of trial counsel and both claims of
ineffective assistance of appellate counsel were without merit.
Petitioner filed a request for further review, asserting that trial counsel was
ineffective by failing to properly interview/depose witnesses to support an alibi
defense. (Filing No. 11-10.) The request for further review was denied by the
Nebraska Supreme Court on July 22, 2015. (Filing No. 11-2 at CM/ECF p. 2.) The
mandate issued on August 12, 2015. (Id.)
Petitioner filed his habeas petition on December 14, 2015. (Filing No. 1.) On
initial review, the court found that Petitioner’s habeas petition asserted:
He was deprived the effective assistance of trial counsel in
violation of the Sixth and Fourteenth Amendments to the United
States Constitution because his trial attorney (1) failed to properly
conduct pretrial investigation, (2) failed to fully prepare for trial,
(3) misrepresented/misadvised him as to the law and potentially
viable defenses, and (4) failed to file a motion to sever counts.
He was denied the effective assistance of appellate counsel in
violation of the Sixth and Fourteenth Amendments because
appellate counsel failed to argue that (1) trial counsel was
ineffective by failing to locate and interview witnesses and (2)
trial counsel was ineffective by failing to move to sever counts.
(Filing No. 8.)
Statute of Limitations
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, it does not appear that Petitioner disputes that he filed his petition
for federal habeas relief more than one year from any of these four dates. 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.
It is clear that Petitioner’s claims are time-barred. Petitioner’s convictions and
sentences were affirmed by the Nebraska Court of Appeals on February 8, 2013, and
his petition for further review was denied on April 10, 2013. Thus, the judgment
became final, and the statute of limitations began to run, on July 9, 2013. 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).
On April 8, 2014, Petitioner filed a motion for postconviction relief, which
tolled the limitations period. See King v. Hobbs, 666 F.3d 1132, 1135 (8th Cir. 2012)
( “The statute of limitations is tolled while state post-conviction or other collateral
review is pending”). However, by the time the motion for postconviction relief was
filed, a total of 273 days of the limitations period had already expired. See Painter v.
Iowa, 247 F.3d 1255, 1256 (8th Cir. 2001) (“[T]he time between the date that direct
review of a conviction is completed and the date that an application for state postconviction relief is filed counts against the one-year period”). The statute of
limitations remained tolled until the postconviction proceedings concluded on August
13, 2015. Another 123 days of the one-year period expired between the conclusion
of the postconviction proceedings and the filing of the habeas petition. Thus, in total,
396 days count toward the one-year limitation period. Therefore, Petitioner’s habeas
petition is untimely.
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.
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. Petitioner waited 273 days from the date his appeal
became final to file his postconviction motion. Then, he waited an additional 123
days from the conclusion of the postconviction proceeding to file his habeas petition.
Petitioner has not offered any reasonable explanation for these delays.
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 new, reliable evidence or any reason
to excuse him from the procedural bar of the statute of limitations under the
miscarriage of justice exception.
Even assuming the habeas petition was not untimely, Petitioner’s claims that
(1) trial counsel was ineffective by failing to file a motion to sever and (2) appellate
counsel was ineffective by not arguing that trial counsel was ineffective by failing to
locate and interview witnesses and move to sever have been procedurally defaulted.
As set forth in 28 U.S.C. § 2254:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted unless it appears that–
the applicant has exhausted the remedies available in
the courts of the State; or
there is an absence of available State
corrective process; or
circumstances exist that render such process
ineffective to protect the rights of the
28 U.S.C. § 2254(b)(1).
The United States Supreme Court has explained the habeas exhaustion
requirement as follows:
Because the exhaustion doctrine is designed to give the state courts a full
and fair opportunity to resolve federal constitutional claims before those
claims are presented to the federal courts . . . state prisoners must give
the state courts one full opportunity to resolve any constitutional issues
by invoking one complete round of the State’s established appellate
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). A state prisoner must therefore
present the substance of each federal constitutional claim to the state courts before
seeking federal habeas corpus relief. In Nebraska, “one complete round” ordinarily
means that each § 2254 claim must have been presented in an appeal to the Nebraska
Court of Appeals, and then in a petition for further review to the Nebraska Supreme
Court if the Court of Appeals rules against the petitioner. See Akins v. Kenney, 410
F.3d 451, 454-55 (8th Cir. 2005). “In order to fairly present a federal claim to the state
courts, the petitioner must have referred to a specific federal constitutional right, a
particular constitutional provision, a federal constitutional case, or a state case raising
a pertinent federal constitutional issue in a claim before the state courts.” Carney v.
Fabian, 487 F.3d 1094, 1096 (8th Cir. 2007) (citation and quotation omitted).
Petitioner’s claim that trial counsel was ineffective by failing to move to sever
was raised in Petitioner’s postconviction motion and in his state postconviction
appeal. However, the Nebraska Court of Appeals did not reach the merits of this
claim because Petitioner did not raise the claim on direct appeal. (Filing No. 11-3 at
CM/ECF p. 4.) This decision was based on a Nebraska procedural rule. See State v.
Filholm, 287 Neb. 763, 848 N.W.2d 571, 576 (2014) (“When a defendant’s trial
counsel is different from his or her counsel on direct appeal, the defendant must raise
on direct appeal any issue of trial counsel’s ineffective performance which is known
to the defendant or is apparent from the record. Otherwise, the issue will be
procedurally barred”). Therefore, this claim has been procedurally defaulted. See
Hunt v. Houston, 563 F.3d 695, 703 (8th Cir. 2009) (“Federal courts generally will not
review claims that a state court has refused to consider because of the petitioner’s
failure to satisfy a state procedural requirement”).
Petitioner’s claims of ineffective assistance of appellate counsel are likewise
procedurally defaulted. Although these claims were raised in Petitioner’s
postconviction motion and postconvction appeal, they were not raised in his petition
for further review. (Filing No. 11-10.) Therefore, Petitioner has not invoked one
complete round of Nebraska’s appellate review process. These claims are now
procedurally defaulted, not unexhausted, because the Nebraska courts would not
entertain a successive postconviction motion based on these claims since they were
previously available to Petitioner and untimely. State v. Sims, 277 Neb. 192, 198, 761
N.W.2d 527, 533 (2009) (“[A]n appellate court will not entertain a successive motion
for postconviction relief unless the motion affirmatively shows on its face that the
basis relied upon for relief was not available at the time the movant filed the prior
When a state court has adjudicated a habeas petitioner’s claim on the merits,
there is a very limited and extremely deferential standard of review both as to the law
and the facts. See 28 U.S.C. § 2254(d). Section 2254(d)(1) states that a federal court
may grant a writ of habeas corpus if the state court’s decision “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). As
explained by the Supreme Court in Williams v. Taylor, 529 U.S. 362 (2000), a state
court acts contrary to clearly established federal law if it applies a legal rule that
contradicts the Supreme Court’s prior holdings or if it reaches a different result from
one of that Court’s cases despite confronting indistinguishable facts. 529 U.S. at 405406. Further, “it is not enough for [the court] to conclude that, in [its] independent
judgment, [it] would have applied federal law differently from the state court; the state
court’s application must have been objectively unreasonable.” Rousan v. Roper, 436
F.3d 951, 956 (8th Cir. 2006).
With regard to the deference owed to factual findings of a state court’s decision,
Section 2254(d)(2) states that a federal court may grant a writ of habeas corpus if a
state court proceeding “resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(2). Additionally, a federal court must presume that
a factual determination made by the state court is correct, unless the petitioner
“rebut[s] the presumption of correctness by clear and convincing evidence.” 28
U.S.C. § 2254(e)(1).
The merits of Petitioner’s claim that trial counsel was ineffective by failing to
properly interview/depose witnesses to support an alibi defense was addressed by the
Nebraska Court of Appeals. (Filing No. 11-3 at CM/ECF pp. 4-12.) Upon review,
this court finds that Petitioner cannot establish that the Court of Appeals’ decision was
contrary to, or involved an unreasonable application of, clearly established federal
For the foregoing reasons, the court will dismiss Petitioner’s petition with
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:
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.
DATED this 15th day of November, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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