Reising v. Lewien

Filing 28

MEMORANDUM AND ORDER - Respondent's Motion for Summary Judgment (filing no. 16 ) 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)(LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GREGORY C. REISING,
Petitioner,

8:17CV321

vs.
BARB LEWIEN, Chief Executive
Officer, Warden;

MEMORANDUM
AND ORDER

Respondent.
This matter is before the court on Respondent’s Motion for Summary
Judgment. (Filing No. 16.) Respondent argues Petitioner Gregory C. Reising’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.
I. BACKGROUND
Reising pled guilty to two counts of robbery on May 23, 2012, in the District
Court of Douglas County, Nebraska. (Filing No. 17-2 at CM/ECF p. 1.) On August
20, 2012, the state district court sentenced Reising to consecutive prison sentences
of 5 to 10 years for each count of robbery. (Id. at CM/ECF pp. 2–3.) The
sentencing order was filed on August 21, 2012. (Id.) Reising did not file a direct
appeal. (See Filing No. 17-3 at CM/ECF pp. 6–7.)
On November 13, 2012, Reising filed a motion for an order nunc pro tunc
asking the state district court to correct the sentencing order to reflect that his
sentences were to run concurrently with the sentence he was already serving at the
time of his August 20, 2012 sentencing. (Filing No. 17-2 at CM/ECF pp. 4–6.) A
second motion clarifying his position was filed in the state district court on April

18, 2016. (Id. at CM/ECF pp. 7–8.) On September 1, 2016, the state district court
denied Reising’s request for an order nunc pro tunc following a hearing on the
matter. (Id. at CM/ECF pp. 9–11.) The state district court found that the sentencing
order could not be changed because the court expressed its intent at the sentencing
hearing to run the sentences consecutively to the sentence Reising was serving at
the time he was sentenced. (Id.) Reising filed a motion to alter or amend the
judgment on September 15, 2016, which the state district court denied on October
26, 2016. (See Filing No. 17-3 at CM/ECF p. 5.)
Reising appealed the denial of his motion for an order nunc pro tunc, but the
Nebraska Court of Appeals dismissed the appeal for lack of jurisdiction because
the notice of appeal was not filed within 30 days of the September 1, 2016 order,
as required by Nebraska law. (Filing No. 17-1 at CM/ECF p. 2.) The appellate
court noted that the time to appeal was not tolled by the motion to alter or amend
that Reising filed in the district court because that motion was not timely filed.
(Id.) The Nebraska Supreme Court denied Reising’s request for further review on
April 21, 2017. (Id.) Reising never filed a state postconviction motion pursuant to
Neb. Rev. Stat. § 29-3001 et seq. (See Filing No. 17-3 at CM/ECF pp. 3–7.)
Reising filed his Petition for Writ of Habeas Corpus (filing no. 1) in this
court on August 31, 2017. Respondent filed a Motion for Summary Judgment,
brief in support, and the relevant state court records. (Filing No. 16; Filing No. 17;
Filing No. 18.) Reising filed a brief in opposition to Respondent’s Motion for
Summary Judgment.1 (Filing No. 23.) Respondent filed a Notice of Submission
(filing no. 24), and this matter is fully submitted for disposition.

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Reising also filed two motions asking the court to issue a subpoena to certain
corrections officials so that Reising could obtain a copy of his psychological evaluation
performed in June 2017. (Filing No. 20; Filing No. 23 at CM/ECF pp. 14–16; Filing No. 25.)
The court denied these motions because Reising failed to show how the psychological evaluation
is relevant to the statute of limitations issue presented by Respondent’s summary judgment
motion. (Filing No. 20; Filing No. 26.)

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II. ANALYSIS
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:
(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable to
cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. § 2244(d)(1). However, the statute of limitations period is tolled while a
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. § 2244(d)(2)).
Reising did not file his habeas petition within one year of “the date on which
[his] 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). Reising’s conviction
became final on September 20, 2012, upon the expiration of the 30-day appeal
period after the state district court filed its sentencing order on August 21, 2012.
See Neb. Rev. Stat. § 25-1912(1) (Reissue 2008); see also In re Interest of J.A.,
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510 N.W.2d 68, 71 (Neb. 1994) (a notice of appeal must be filed within 30 days of
the date the judgment or order was entered on the journal of the trial court); State v.
Yos-Chiguil, 772 N.W.2d 574, 579 (Neb. 2009) (“In a criminal case, the judgment
is the sentence.”). Accordingly, the one-year limitations period began to run from
September 20, 2012.
The question, thus, becomes whether Reising’s motion for an order nunc pro
tunc was “a properly filed application for State postconviction or other collateral
review with respect to the pertinent judgment or claim” within the meaning of 28
U.S.C. § 2244(d)(2) that tolled the statute of limitations. The Supreme Court has
explained that “to trigger the [AEDPA] tolling provision, a ‘collateral’ proceeding
must also involve a form of ‘review.’” Wall v. Kholi, 562 U.S. 545, 553 (2011).
“Review” is best understood as an “act of inspecting or examining” or
a “judicial reexamination.” Webster's [Third New International
Dictionary] 1944 [(1993)]; see also Black's [Law Dictionary] at 1434
[(9th ed. 2009)] (“[c]onsideration, inspection, or reexamination of a
subject or thing”); 13 O[xford] E[nglish] D[ictionary] 831 [(2d ed.
1989)] (“[t]o submit (a decree, act, etc.) to examination or revision”).
We thus agree with the First Circuit that “‘review’ commonly denotes
‘a looking over or examination with a view to amendment or
improvement.’” [Kholi v. Wall, 582 F.3d 147, 153 (1st Cir. 2009)]
(quoting Webster’s 1944 (2002)). Viewed as a whole, then, “collateral
review” of a judgment or claim means a judicial reexamination of a
judgment or claim in a proceeding outside of the direct review
process.
Id.
The Supreme Court’s treatment of “review” in § 2244(d)(2) makes clear that
Reising’s nunc pro tunc motion did not satisfy the requirements for tolling. Here,
Reising’s motion did not seek judicial reexamination of his conviction or sentences
to correct any error in or revise the judgment. Rather, by definition, Reising’s
motion for an order nunc pro tunc sought only “to correct clerical or formal errors

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in order to make the record correctly reflect the judgment actually rendered by the
court.” In re Interest of Luz P., 891 N.W.2d 651, 660 (Neb. 2017). Under Nebraska
law, “[a]n order nunc pro tunc differs from an order substantively amending or
vacating a court’s prior order,” and its purpose
“is to correct a record which has been made so that it will truly record
the action had, which through inadvertence or mistake was not truly
recorded. It is not the function of an order nunc pro tunc to change or
revise a judgment or order, or to set aside a judgment actually
rendered, or to render an order different from the one actually
rendered, even though such order was not the order intended.”
Id. (quoting Continental Oil Co. v. Harris, 333 N.W.2d 921, 923 (Neb. 1983)).
Thus, the court agrees with Respondent that Reising’s motion for an order
nunc pro tunc was not an attempt at collateral review of the judgment of his
convictions and sentences. Instead, Reising merely asked the state district court to
correct what he believed was an error in the sentencing order. Because Reising’s
motion did not seek “collateral review” within the meaning of § 2244(d)(2), the
one-year limitations period was not tolled and Reising had until September 20,
2013, to file his habeas petition. See Collins v. Ercole, 667 F.3d 247, 251 (2d Cir.
2012), cert. denied, 568 U.S. 842 (2012) (state-court postconviction motion
challenging a post-conviction administrative decision that petitioner’s murder
sentence run consecutively, rather than concurrently, to a prior undischarged prison
term did not statutorily toll the AEDPA limitations period). Reising did not file his
habeas petition until almost five years after the limitations period expired, and his
petition is, therefore, untimely under § 2244(d)(1)(A).
Alternatively, even if Reising’s motion for an order nunc pro tunc could be
considered a request for “State post-conviction or other collateral review” within
the meaning of § 2244(d)(2), Reising’s petition was still untimely filed. Reising’s
motion was filed on November 13, 2012, 54 days after the statute of limitations
began running on September 20, 2012. Since Reising did not timely appeal the
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district court’s order denying his motion, the tolling period ended on October 3,
2016, the deadline for Reising to file a timely appeal from the September 1, 2016
order. See Streu v. Dormire, 557 F.3d 960, 966 (8th Cir. 2009) (citing Williams v.
Bruton, 299 F.3d. 981, 983 (8th Cir. 2002)) (a state postconviction action remains
pending during the appeal period, even if the prisoner does not appeal). Another
332 days ran between October 3, 2016, and August 31, 2017, when Reising filed
his habeas petition. Thus, Reising’s habeas petition was filed 386 days after his
conviction became final and is barred by the limitations period set forth in §
2244(d)(1)(A).
B. Equitable Tolling
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).
Here, Reising does not specifically argue that he is entitled to equitable
tolling. However, Reising asserts in his brief that “NDCS has not only [d]iagnosed
him with severe and several Mental Illness[es] but has neglected to treat him and
has treated him with cruel and inhumane punishment when they held him in
solitary confinement for nearly 19 months.” (Filing No. 23 at CM/ECF p. 6.) Even
liberally construing Reising’s assertions regarding his mental health as a basis for
equitable tolling, the court finds that Reising has not presented the court with any
reason to warrant the application of equitable tolling to the limitations period.2 In
reviewing Reising’s pleadings and the records in this case, it is clear that Reising is
able to articulate his claims and arguments in support of those claims, not only in
this habeas action but throughout his state court litigation of his nunc pro tunc
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The court notes that Reising asks for $250,000 damages “for the inhumane treatment
[related to] the issue of his severe Mental Illness.” (Filing No. 23 at CM/ECF p. 7.) Because such
a request for relief relates to the circumstances of his confinement, Reising must pursue such
claims in an action brought pursuant to 42 U.S.C. § 1983, rather than in a habeas action. See
Muhammad v. Close, 540 U.S. 749, 750 (2004).

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motion. There is simply no indication that any mental impairment has impeded his
ability to litigate this habeas action, or that Reising’s alleged lack of treatment for
“his severe Bi-Polar mental illness” (filing no. 23 at CM/ECF p. 2) impacted his
mental capacity to such an extent that it would warrant equitable tolling. See Mees
v. Hurley, 2014 WL 5432121, at *4 (E.D. Mo. Oct. 27, 2014) (citing Lawrence v.
Florida, 549 U.S. 327, 337 (2007)) (“A federal habeas petitioner may not have the
federal limitations period tolled due to his mental condition if he makes no factual
showing of a mental capacity sufficient to establish an extraordinary circumstance
that would toll the limitations period.”).
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, Reising 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:
1.
granted.

Respondent’s Motion for Summary Judgment (filing no. 16) is

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2.
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).
3.

The court will not issue a certificate of appealability in this matter.

4.

A separate judgment will be entered.

Dated this 1st day of August, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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