MEMORANDUM AND ORDER
RICHARD G. KOPF, Senior District Judge.
This matter is before the court on Petitioner Jaime L. Higel's Petition for Writ of Habeas Corpus ("habeas petition"). (
Petitioner was convicted of two counts of identity theft. (
On August 13, 2014, the Nebraska Court of Appeals affirmed Petitioner's sentences of imprisonment but vacated her sentence of restitution and remanded the cause to the state district court with directions. (Id. at CM/ECF pp. 2, 11.) In an order entered November 10, 2014, the state district court spread the mandate of the Nebraska Court of Appeals and determined that Petitioner was unable to pay restitution. (
On February 2, 2015, Petitioner filed a motion for postconviction relief in the state district court. (Id.) The state district court denied Petitioner postconviction relief without an evidentiary hearing on June 16, 2015. (
On July 17, 2015, Petitioner appealed the state district court's order denying postconviction relief. (
Petitioner filed her habeas petition on June 13, 2016. (
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).
Petitioner did not appeal after the state district court entered its judgment following remand from the Nebraska Court of Appeals.
Generally, a state postconviction action remains pending during the appeal period. See Williams v. Bruton, 299 F.3d 981, 983 (8th Cir. 2002). Here, however, the statute of limitations remained tolled until June 16, 2015, when the state district court denied Petitioner's postconviction motion. The statute of limitations was not tolled during the appeal period, because the Nebraska Court of Appeals found the appeal untimely. See Evans v. Chavis, 546 U.S. 189, 191 (2006) (holding that a state postconviction application is "pending" during the interval between a lower court's adverse determination and the prisoner's filing of an appeal, "provided that the filing of the notice of appeal is timely under state law"). By the time Petitioner filed her motion for postconviction relief, a total of fifty-four 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 began to run again on June 17, 2015. Petitioner did not file her habeas petition until June 13, 2016. Petitioner's habeas petition is untimely.
Petitioner argues that her postconviction appeal was timely filed pursuant to Fed. R. App. P. (4)(c) ("prison delivery rule") since she deposited her notice of appeal in the institution's internal mail system on July 13, 2015, and therefore, her habeas petition is timely. (
Moreover, Petitioner is not entitled to equitable tolling because she has not demonstrated that she pursued her rights diligently or that some extraordinary circumstance prevented her from seeking habeas relief. Walker v. Norris, 436 F.3d 1026, 1032 (8th Cir. 2006). Petitioner waited nearly a year to file her habeas petition after the Nebraska Court of Appeals dismissed her postconviction appeal, and she has not argued that any circumstance, let alone an "extraordinary" circumstance, prevented her from seeking habeas relief.
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 or her petition for writ of habeas corpus under § 2254 unless he or she 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, 484-485 (2000). The court has applied the appropriate standard and determined Petitioner is not entitled to a certificate of appealability.
IT IS THEREFORE ORDERED that: