Alvarado v. Hansen

• Decision Date: 22 August 2018
• Docket Number: 8:17CV283
• Parties: TELESFORO ALVARADO, Petitioner, v. BRAD HANSEN, Warden et. al.; Respondent.
• Court: U.S. District Court — District of Nebraska

TELESFORO ALVARADO, Petitioner, v. BRAD HANSEN, Warden et. al.; Respondent.¹

8:17CV283

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

August 22, 2018

MEMORANDUM AND ORDER

This matter is before the court on Respondent's Motion for Summary Judgment.² (Filing No. 16.) Respondent argues that Petitioner Telesforo Alvarado's Petition for Writ of Habeas Corpus (Filing Nos. 1, 5) 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

A. Conviction and Direct Appeal

Alvarado was convicted of one count of distribution of a controlled substance within 1000 feet of a playground following a jury trial in the Scotts Bluff County District Court. (Filing No. 5 at CM/ECF pp. 14-15; Filing No. 17-1 at CM/ECF pp. 1, 9, 11.) The state district court sentenced Alvarado to eight to twenty years' imprisonment. (Filing No. 5 at CM/ECF p. 14; Filing No. 17-1 at CM/ECF pp. 1, 8, 11.) On April 15, 2014, the Nebraska Court of Appeals affirmed Alvarado's conviction and sentence on direct appeal. (Filing No. 17-2 at CM/ECF p. 2.) On June 4, 2014, the Nebraska Supreme Court denied Alvarado's petition for further review. (Id.

) The mandate was issued on June 25, 2014 (Id.) The state district court spread the mandate on July 1, 2014. (Filing No. 17-1 at CM/ECF pp. 7, 11.)

B. Postconviction Motion

On March 30, 2016, Alvarado filed a motion for postconviction relief in the state district court. (Filing No. 17-1 at CM/ECF p. 6.) On August 15, 2016, Alvarado filed a supplemental verified motion for postconviction relief. (Id.

) On February 3, 2017, the state district court dismissed Alvarado's motion as barred by the one-year limitations period under Neb. Rev. Stat. § 29-3001(4). (Filing No. 5 at CM/ECF p. 150; Filing No. 17-1 at CM/ECF p. 5.)

Alvarado appealed the dismissal of postconviction relief to Nebraska's appellate courts. On April 19, 2017, the Nebraska Court of Appeals dismissed the appeal for lack of jurisdiction pursuant to Neb. Ct. R. App. P. § 2-107(A)(2) due to Alvarado's failure to execute his poverty affidavit no more than 45 days prior to the filing of the notice of appeal. (Filing No. 17-3 at CM/ECF p. 2.) The Nebraska Supreme Court denied Alvarado's petition for further review on June 6, 2017, and issued its mandate on July 28, 2017. (Id.

)

C. Habeas Petition

Alvarado filed his Petition for Writ of Habeas Corpus in this court on August 1, 2017. (Filing No. 1.) He filed an Amended Petition for Writ of Habeas Corpus on August 29, 2017. (Filing No. 5.) Thereafter, Respondent moved for summary judgment (Filing No. 16), arguing the habeas petition is barred by the statute of limitations (Filing Nos. 16, 18). Alvarado filed a brief (Filing No. 21) in opposition to Respondent's motion, and Respondent filed a reply brief (Filing No. 22). This matter is fully submitted for disposition.

Alvarado also filed a "Request to Withdraw Ground Nine of Habeas Petition and Request to Stay [and] Abey Ground Nine of Habeas Petition." (Filing No. 23.) After Respondent filed a brief (Filing No. 26) in opposition to Alvarado's motion, Alvarado filed a "Motion for Leave to Submit Evidence Disputing Facts in Respondent's Opposition Brief to Motion to Withdraw Ground Nine of Habeas Petition" (Filing No. 27) and a "Motion to Correct Statement Made and to Submit Evidence in Support of Argument Made in His Motion Disputing Respondent's Opposition Brief" (Filing No. 30).

II. ANALYSIS

A. One-Year Limitations Period

The Antiterrorism and Effective Death Penalty Act of 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)(1). 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.

Here, absent a later triggering date under 28 U.S.C. § 2244(d)(1)(B)-(D), Alvarado's conviction became final on September 2, 2014, which is ninety days after the Nebraska Supreme Court denied a petition for further review of his direct appeal. See Gonzalez v. Thaler, 565 U.S. 134, 150 (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 v. Hobbs, 666 F.3d 1132, 1135 (8th Cir. 2012) ("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 September 2, 2014.

Alvarado's filing of his motion for postconviction relief in state district court on March 30, 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 one-year period"). Thus, Alvarado had until September 2, 2015, to file his habeas petition. He did not file it until August 1, 2017. Alvarado's habeas petition is untimely under § 2244(d)(1)(A).

B. State-Created Impediment and Equitable Tolling

Alvarado contends that his lack of access to the law library, legal aides, and legal resources as a protective custody inmate at the Lincoln Correctional Center ("LCC") and his appellate counsel's failure to file an application for state post-conviction relief postponed the commencement of the AEDPA's limitations pursuant to 28 U.S.C. § 2244(d)(1)(B) or the principles of equitable tolling. Alvarado proposes that the one-year limitations period commenced not on September 2, 2014, but either on February 3, 2016—the date he was transferred to Tecumseh State Correctional Institution ("TSCI") and the impediment at the LCC was removed—or July 20, 2015—the date he sent the last of three certified letters to his appellate counsel informing him that "he accepted that [counsel] officially withdrew from his case." (Filing No. 21 at CM/ECF pp. 5, 8, 16.)

1. State-Created Impediment

28 U.S.C. § 2244(d)(1)(B) postpones the commencement of the AEDPA's limitations period during the time a state-created unconstitutional "impediment" prevents a petitioner from filing a habeas corpus petition. In other words, 28 U.S.C. § 2244(d)(1)(B) allows an application for a writ of habeas corpus to be filed in federal court within one year from "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."

Alvarado argues that the limitations period set forth in 28 U.S.C. § 2244(d)(1)(B) applies because his lack of access to the law library, legal resources, and legal aides or assistance as a protective custody inmate at the LCC was a state-created impediment. Summarized and condensed, Alvarado argues that his habeas petition ought not be dismissed because (1) he was in protective custody at the LCC, which meant beginning in 2014, he had no access to the law library or law library resources and materials; (2) it was not until December 2015 that the LCC "finally posted a notice allowing [protective inmates] the ability to check out legal self-help books"; (3) a LexisNexis computer was not installed until late 2014 or early 2015, which he was only able to use for one hour per week and which he was "illiterate" and "forced to navigate . . . with no assistance"; (4) LCC protective custody inmates were not allowed "one on one consultations with inmate legal aides"; and (5) LCC protective inmates could only ask legal questions via the kite process, "which resulted in conflicting, unreliable and delayed repl[ies]."³ (Filing No. 21 at CM/ECF pp. 2, 5.) The court rejects this argument.

Preliminarily, the court notes that Alvarado's petition and opposition brief focus largely on alleged impediments to filing his state postconviction motion. The language of § 2244(d)(1)(B), however, concerns impediments to the pursuit of federal habeas relief, not state postconviction relief. As such, the court will address the merits of Alvarado's impediment argument only in the context of his federal habeas petition.

"[P]rison law libraries and legal assistance programs are not ends in themselves, but only the means for ensuring 'a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.'" Lewis v. Casey, 518 U.S. 343, 351, (1996) (quoting Bounds v. Smith, 430 U.S. 817, 825 (1977)); accord Finch v. Miller, 491 F.3d 424 (8th Cir. 2007). "Moreover, an inmate who alleges an...