Bewley v. Britten et al
MEMORANDUM AND ORDER - Respondents' Motion for Summary Judgment (Filing No. 11 ) is granted. Petitioner's habeas petition is dismissed with prejudice because it is barred by the limitations period set forth in 28 U.S.C. § 2244(d). The court will not issue a certificate of appealability in this matter. A separate judgment will be entered. 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
CORY C. BEWLEY,
FRED BRITTEN, and THE
ATTORNEY GENERAL OF THE
STATE OF NEBRASKA,
This matter is before the court on Respondents’ Motion for Summary
Judgment. (Filing No. 11.) Respondents argue Petitioner Cory C. Bewley’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). The court agrees
and will dismiss the petition with prejudice.
A. Conviction and Direct Appeal
Bewley was convicted of second degree murder following a guilty plea in
the Douglas County District Court. (Filing No. 9-2 at CM/ECF pp. 1-5.) The state
district court sentenced Bewley to 40 to 60 years’ imprisonment. (Id. at CM/ECF
pp. 5-6.) On June 6, 2014, the Nebraska Court of Appeals affirmed Bewley’s
conviction and sentence on direct appeal. (Filing No. 9-1 at CM/ECF p. 2.) On July
18, 2014, the Nebraska Supreme Court denied Bewley’s petition for further
B. Postconviction Motion
On June 14, 2016, Bewley filed a verified motion for postconviction relief in
the state district court. (Filing No. 9-4 at CM/ECF p. 1.) On August 17, 2016, the
state district court denied Bewley’s motion as barred by the one-year limitations
period under Neb. Rev. Stat. § 29-3001(4). (Id. at CM/ECF pp. 1-2.) Bewley did
not appeal the order of the state district court. (Filing No. 1 at CM/ECF p. 2.)
C. Habeas Petition
Bewley filed his Petition for Writ of Habeas Corpus (Filing No. 1) in this
court on January 23, 2017. Thereafter, Respondents moved for summary judgment
(Filing No. 11), arguing the habeas petition is barred by the statute of limitations
(Filing No. 12). Respondents filed a Notice of No Response (Filing No. 13)
because Bewley failed to file a response to their summary judgment motion. This
matter is fully submitted for disposition.
A. 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, Petitioner’s conviction became final on October 16, 2014, which is
ninety days after the Nebraska Supreme Court affirmed Petitioner’s conviction and
sentence on direct appeal. See Gonzalez v. Thaler, 132 S.Ct. 641, 653–54 (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.”); King,
666 F.3d at 1135 (“If the Supreme Court has jurisdiction to review the direct
appeal, the judgment becomes final ninety days after the conclusion of the
prisoner’s direct criminal appeals in the state system.”) (citing Sup. Ct. R. 13.1).
Accordingly, the one-year limitations period began to run from October 16, 2014.
Petitioner’s filing of his motion for postconviction relief in state district
court on June 14, 2016, did not toll the limitations period because it had already
expired. See Painter v. Iowa, 247 F.3d 1255, 1256 (8th Cir. 2001) (holding “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 oneyear period”). Thus, Petitioner had until October 16, 2015, to file his habeas
petition. He did not file it until January 23, 2017. Petitioner’s habeas petition is
untimely under § 2244(d)(1)(A).
B. 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.
Bewley does not argue that he is entitled to equitable tolling. As such,
Bewley has not presented the court with any reason to warrant the application of
equitable tolling to the limitations period. Bewley alleges in his habeas petition that
he is actually innocent because he acted in self-defense. To the extent Bewley
attempts to be excused from the limitations period, rather than assert a freestanding actual innocence claim, “‘[a]ctual innocence’ means factual innocence,
not mere legal insufficiency.” See Bousley v. U.S., 523 U.S. 614, 623 (1998)
(citation omitted). Therefore, Bewley also has not presented the court with any
reason to warrant the application of the miscarriage of justice exception.
III. CERTIFICATE OF APPEALABILITY
A petitioner cannot appeal an adverse ruling on a petition for writ of habeas
corpus under § 2254 unless 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, Bewley 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:
Respondents’ Motion for Summary Judgment (Filing No. 11) is
Petitioner’s habeas petition is dismissed with prejudice because it is
barred by the limitations period set forth in 28 U.S.C. § 2244(d).
The court will not issue a certificate of appealability in this matter.
A separate judgment will be entered.
Dated this 31st day of July, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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