Opinion
8:01 CV 222
March 5, 2002
MEMORANDUM AND ORDER
Before the court are: (1) Filing No. 1, the pro se Petition for Writ of Habeas Corpus ("§ 2254 petition") filed pursuant to 28 U.S.C. § 2254 by the petitioner, Jody Thomas Wagner, an inmate in the Omaha Correctional Center; (2) Filing No. 8, the Report and Recommendation by Magistrate Judge Kathleen A. Jaudzemis, recommending denial of Wagner's § 2254 petition as untimely; and (3) Filing No. 9, the Objection to Report and Recommendation filed by Wagner. After conducting initial review of the § 2254 petition, Magistrate Judge Jaudzemis recommends that the statute of limitations set forth in 28 U.S.C. § 2244(d) expired before Wagner filed his § 2254 petition in this court, and that Wagner's § 2254 petition is therefore barred as untimely.
See generally GENERAL ORDER 97-10 (United States District Court for the District of Nebraska) at ¶ 7 regarding "Initial and Subsequent Review of Habeas Corpus Petitions and 28 U.S.C. § 2255 Motions":
Whether pro se or by counsel and notwithstanding the payment of any filing fee, habeas corpus petitions shall be initially and subsequently reviewed pursuant to the Rules Governing Habeas Corpus Cases, and, to the extent applicable, 28 U.S.C. § 1915 1915A . . . .See also Rule 4 of the Rules Governing Section 2254 proceedings in the United States District Courts. Rule 4 states, in pertinent part: "The petition shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified."
STATUTE OF LIMITATIONS
The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (effective April 24, 1996) ("AEDPA") imposed a one-year statute of limitations on petitions for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. 28 U.S.C. § 2244(d) states:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(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.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
Absent a later triggering date under 28 U.S.C. § 2244(d)(1)(B)-(D), the one-year period for filing a § 2254 petition in federal court begins to run on the date the challenged state court judgment becomes final, i.e., upon conclusion of direct review or at the end of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). See, e.g., Nichols v. Bowersox, 172 F.3d 1068, 1072 (8th Cir. 1999):
In Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir. 1998), cert. denied, 525 U.S. 1187 . . . (1999), § 2244(d)(1)(A) was interpreted by a panel of this court as follows: the running of the statute of limitations imposed by § 2244(d)(1)(A) is triggered by either (i) the conclusion of all direct criminal appeals in the state system, followed by either the completion or denial of certiorari proceedings before the United States Supreme Court; or (ii) if certiorari was not sought, then by the conclusion of all direct criminal appeals in the state system followed by the expiration of the time allotted for filing a petition for the writ.
State prisoners whose convictions became final before enactment of the AEDPA received a one-year grace period from AEDPA's effective date to file their § 2254 petitions. The one-year grace period began on April 24, 1996, and, unless extended or tolled in a particular case, expired on April 24, 1997. Hatcher v. Hopkins, 256 F.3d 761, 763 (8th Cir. 2001); Mills v. Norris, 187 F.3d 881, 882 (8th Cir. 1999).
TOLLING OF THE LIMITATIONS PERIOD
28 U.S.C. § 2244(d)(2) directs that the one-year statute of limitations shall be tolled while a habeas corpus petitioner exhausts any available state post-conviction remedies. Jihad v. Hvass, 267 F.3d 803, 805 (8th Cir. 2001). In computing AEDPA's one-year limitations period, section 2244(d)(2) provides that "[t]he time during which a properly filed application for State postconviction or other collateral review . . . is pending shall not be counted." Hatcher v. Hopkins, 256 F.3d 761, 763 (8th Cir. 2001). However, the tolling period under § 2244(d)(2) does not include the time during which a federal habeas corpus petition is pending. Duncan v. Walker, 121 S.Ct. 2120, 2129 (2001).
As the United States Supreme Court recently stated in Duncan v. Walker, 121 S.Ct. 2120, 2128-29 (2001): "The 1-year limitation period of § 2244(d)(1) quite plainly serves the well-recognized interest in the finality of state court judgments. . . . This provision reduces the potential for delay on the road to finality by restricting the time that a prospective federal habeas petitioner has in which to seek federal habeas review." Thus, subsections (d)(1) and (d)(2) of 28 U.S.C. § 2244 promote the dual interests in finality of state court judgments and exhaustion of state court remedies. Id. at 2128-29: "By tolling the limitation period for the pursuit of state remedies and not during the pendency of applications for federal review, § 2244(d)(2) provides a powerful incentive for litigants to exhaust all available state remedies before proceeding in the lower federal courts. . . . Section 2244(d)(1)'s limitation period and § 2244(d)(2)'s tolling provision, together with § 2254(b)'s exhaustion requirement, encourage litigants first to exhaust all state remedies and then to file their federal habeas petitions as soon as possible."
RECORD OF PREVIOUS PROCEEDINGS
Conviction and Sentence
On November 22, 1993, the Honorable Maurice S. Redmond of the District Court of Cedar County, Nebraska, sentenced Wagner to a prison term of 5 to 15 years after Wagner entered a guilty plea to Count I of an Amended Information charging visual depiction of sexually explicit conduct, in violation of Neb. Rev. Stat. § 28-1463.03. Counts II through VII of the Amended Information, charging sexual assault and sexual assault of a child, were dismissed as part of the plea agreement.
Under Nebraska law, an appeal must be filed within thirty days after the rendition of judgment, and in a criminal case the judgment date is the date on which the defendant is sentenced. State v. Spotted Elk, 420 N.W.2d 707, 711 (Neb. 1988). Accord State v. McCormick, 518 N.W.2d 133,136 (Neb. 1994). Wagner did not appeal his conviction or sentence. Therefore, for purposes of 28 U.S.C. § 2244(d)(1)(A), in the absence of a direct appeal, his judgment of conviction became final upon expiration of the time for seeking review, i.e., thirty days after the imposition of sentence on November 22, 1993. Thus, Wagner's conviction became final on December 22, 1993.
However, because December 22, 1993, preceded the AEDPA's effective date and because of the applicable grace period, the statute of limitations began to run on April 24, 1996, and expired by April 24, 1997, unless extended or tolled in the interim. Wagner filed his § 2254 petition in the above-entitled case on April 11, 2001.
State Post-Conviction Proceedings
On April 4, 1997, Wagner filed a petition for a writ of habeas corpus in the District Court of Lancaster County, Nebraska. As grounds for relief, he alleged the following claims: (1) venue for the plea was improper, (2) the prosecutor acted outside his jurisdiction, (3) the information was void because it was signed by the wrong person, (4) judges abused their discretion, (5) the plea was not voluntary because it was drug-induced and obtained through trickery and threats against the petitioner and his family, (6) there existed no factual basis for the plea, (7) the petitioner received ineffective assistance of counsel when counsel coerced him, (8) sentencing procedures were improper, (9) illegal search and seizure, (10) invalid statute, and (11) actual innocence. The State's demurrer was sustained and the petition dismissed on June 9, 1997. Wagner filed an appeal to the Nebraska Court of Appeals, but later dismissed his appeal on September 3, 1997, because he had raised the same issues in an original action filed with the Nebraska Supreme Court.
In his original action before the Nebraska Supreme Court, Wagner raised the same grounds as in the state habeas corpus petition. The request to docket an original action was denied on July 23, 1997. Wagner unsuccessfully sought to obtain review of the Nebraska Supreme Court's decision by filing a federal habeas petition in this court.
Wagner subsequently initiated post-conviction proceedings in the District Court of Cedar County, Nebraska, on March 3, 1998 (Filing No. 4, Ex. 1 at 153), reasserting the grounds for relief previously raised in the Lancaster County District Court habeas corpus action. On August 23, 2000, the District Court of Cedar County denied post-conviction relief (Filing No. 4, Ex. 2), and on November 29, 2000, the District Court denied Wagner's motion for a new trial (Filing No. 4, Ex. 3). On February 5, 2001, the Nebraska Court of Appeals dismissed Wagner's appeal from the denial of post-conviction relief (Filing No. 4, Ex. 4), and the Nebraska Supreme Court denied further review on March 28, 2001 (Filing No. 4, Ex. 6).
Previous Federal Habeas Corpus Proceedings
On September 23, 1997, Wagner filed a Petition for Writ of Habeas Corpus in this court, docketed as Case No. 4:97CV3302, in which he attempted to obtain review of the Nebraska Supreme Court's decision on July 23, 1997 to deny Wagner's original action. The Honorable Judge Richard G. Kopf dismissed Case No. 4:97CV3302 without prejudice on January 20, 1998.
Thereafter, on March 23, 2000, Wagner filed another § 2254 petition, docketed as Case No. 8:00CV195, in which he complained of inordinate delay by the state courts in resolving Wagner's pending state post-conviction claims. The Honorable Thomas M. Shanahan dismissed Wagner's § 2254 petition in Case No. 8:00CV217 on July 3, 2000, and the Eighth Circuit Court of Appeals affirmed denial of the writ on October 26, 2000. Wagner's petition for certiorari to the United States Supreme Court was denied on March 19, 2001.
CURRENT HABEAS CORPUS PETITION
In his current § 2254 Petition filed on April 23, 2001, Wagner alleges the following claims:
(1) In post-conviction proceedings, the District Court of Cedar County, Nebraska engaged in undue delay;
(2) venue for the plea was improper;
(3) the prosecutor acted outside his jurisdiction;
(4) the charging document was void because it was signed by the wrong person;
(5) the district judges abused their discretion;
(6) the trial judge improperly exhibited bias and then failed to recuse himself;
(7) the trial judge erred by allowing the petitioner to be prosecuted while in a drugged and distressed condition;
(8) the plea was not voluntary because it was obtained through threats against the petitioner and his family;
(9) there existed no factual basis for the plea;
(10) the conviction was obtained by breach of a plea agreement;
(11) the petitioner received ineffective assistance of counsel;
(12) the conviction and sentence were based on false information in the presentence investigation report, to which the petitioner was denied access;
(13) the conviction was obtained by an illegal search and seizure;
(14) the conviction was based on an unconstitutionally vague statute;
(15) the post-conviction court failed to permit the petitioner to attend the evidentiary hearing;
(16) the post-conviction court denied the petitioner access to his medical records for purposes of the post-conviction proceedings;
(17) the post-conviction appointed incompetent and ineffective counsel to represent the petitioner;
(18) the petitioner is innocent of the crime of conviction.
The claims relating to Wagner's state post-conviction proceedings are not cognizable in a federal habeas corpus proceeding. See Gee v. Groose, 110 F.3d 1346, 1351-52 (8th Cir. 1997), citing Jolly v. Gammon, 28 F.3d 51 (8th Cir.), cert. denied, 513 U.S. 983 (1994), quoting Williams-Bey v. Trickey, 894 F.2d 314, 317 (8th Cir. 1990): "[A]n infirmity in a state post-conviction proceeding does not raise a constitutional issue cognizable in a federal habeas petition."
In addition, all claims are barred by the statute of limitations. The statute of limitations began to run on Wagner's claims after "the conclusion of direct review or the expiration of the time for seeking such review," 28 U.S.C. § 2244 (d)(1)(A), as extended by the grace period. Thus, the 365-day statutory period began on April 24, 1996, and continued to run through April 3, 1997, i.e., for 344 days, leaving 21 days remaining.
On April 4, 1997, the provisions of 28 U.S.C. § 2244(d)(2) tolled the limitations period during the pendency of Wagner's habeas corpus proceedings in Lancaster County District Court. Thus, the days between April 4, 1997, when Wagner filed his state habeas petition, and September 3, 1997, when Wagner dismissed his state habeas appeal, do not count against the statute of limitations.
On September 4, 1997, however, the state habeas proceedings had concluded. Thus, the AEDPA statute of limitations for § 2254 claims resumed running, and the 365-day limitations period ended 21 days later on September 25, 1997.
Wagner's previous federal § 2254 actions had no effect on the deadline for filing his current § 2254 petition. See Duncan v. Walker, 121 S.Ct. 2120, 2129 (2001) (prior federal habeas petition does not qualify as the kind of "application for State post-conviction or other collateral review" which tolls the AEDPA one-year limitations period for federal habeas petitions pursuant to 28 U.S.C. § 2244(d)(2)).
The tolling provision of 28 U.S.C. § 2244(d)(2) also did not cure Wagner's delay in filing his current § 2254 claims, because the post-conviction proceedings he initiated in the District Court of Cedar County, Nebraska, on March 3, 1998, occurred after the AEDPA statute of limitations had already expired on September 25, 1997. Any exhaustion of remedies which occurs after the statute of limitations has already expired does not revive or reset the limitations period. The AEDPA statute of limitations does not begin to run anew when a state court enters judgment denying post-conviction relief. See, e.g., Painter v. Iowa, 247 F.3d 1256 (8th Cir. 2001) (a state post-conviction petition filed after expiration of the AEDPA limitations period will not suspend, reset or toll the statute of limitations or "cure" a time-barred petition). Accord Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.), cert. denied, 531 U.S. 840 (2000). See also Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001) (The petitioner's federal habeas petition "cannot be tolled for time spent in state post-conviction proceedings because his applications for [state] post-conviction relief were not filed until after . . . the end of the [federal] limitations period . . . .").
In his objection to Magistrate Judge Jaudzemis' report and recommendation, Wagner alleges that his § 2254 petition has not been liberally construed, maintains his innocence of any crime, and asserts that his conviction constitutes a fundamental miscarriage of justice. However, Wagner has not presented any objection which alters the fact that the statute of limitations expired before he filed his current § 2254 petition. The petitioner's objection to Magistrate Judge Jaudzemis' Report and Recommendation is accordingly overruled.
THEREFORE, IT IS ORDERED:
(1) That Filing No. 1, the Petition for Writ of Habeas Corpus filed by the petitioner, Jody Thomas Wagner, is denied;
(2) That Filing No. 8, the Report and Recommendation by Magistrate Judge Kathleen A. Jaudzemis, is adopted, as modified by this Memorandum and Order;
(3) That Filing No. 9, the Objection to Report and Recommendation filed by the petitioner, Jody Thomas Wagner, is denied; and
(4) That a separate judgment dismissing the above-entitled action with prejudice will be filed in accordance with this Memorandum and Order.
JUDGMENT
In accordance with the Memorandum and Order filed on this date,IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Petition for Writ of Habeas Corpus filed by the petitioner, Jody Thomas Wagner, is dismissed with prejudice.