LEE v. NEBRASKA DEPARTMENT OF CORRECTIONS, 4:16CV3058. (2016)
Court: District Court, D. Nebraska
Number: infdco20160915a36
Visitors: 4
Filed: Sep. 13, 2016
Latest Update: Sep. 13, 2016
Summary: MEMORANDUM AND ORDER RICHARD G. KOPF , Senior District Judge . Lee has filed a petition for writ of habeas corpus. 1 However, it is too late as shown by the undisputed facts. (E.g., filing no. 12 at CM/ECF pp 1-2). Specifically, 568 days went by that counted against Lee before he filed this action. The Respondents have filed a motion for summary judgment, but Petitioner has not responded. Specifically, he has not shown any reason to excuse his tardy filing and I cannot find any excuse in
Summary: MEMORANDUM AND ORDER RICHARD G. KOPF , Senior District Judge . Lee has filed a petition for writ of habeas corpus. 1 However, it is too late as shown by the undisputed facts. (E.g., filing no. 12 at CM/ECF pp 1-2). Specifically, 568 days went by that counted against Lee before he filed this action. The Respondents have filed a motion for summary judgment, but Petitioner has not responded. Specifically, he has not shown any reason to excuse his tardy filing and I cannot find any excuse ind..
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MEMORANDUM AND ORDER
RICHARD G. KOPF, Senior District Judge.
Lee has filed a petition for writ of habeas corpus.1 However, it is too late as shown by the undisputed facts. (E.g., filing no. 12 at CM/ECF pp 1-2). Specifically, 568 days went by that counted against Lee before he filed this action. The Respondents have filed a motion for summary judgment, but Petitioner has not responded. Specifically, he has not shown any reason to excuse his tardy filing and I cannot find any excuse independently.
I now deny the petition and dismiss the petition with prejudice pursuant to 28 U.S.C. § 2241(d)(1)(A) as it is untimely. Additionally, a petitioner cannot appeal an adverse ruling on his petition for writ of habeas corpus under § 2254 unless he 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). I have applied the appropriate standard and determined that Petitioner is not entitled to a certificate of appealability.
IT IS ORDERED that:
1. Respondent's Motion for Summary Judgment (filing no. 11) is granted. The Petition (filing no. 1) is denied and dismissed with prejudice.
2. The court will not issue a certificate of appealability in this matter.
3. The court will enter a separate judgment in accordance with this order.
FootNotes
1. Petitioner has styled his action as an "Application for Certificate of Appealability" to the Eighth Circuit Court of Appeals. However, it is clear that Petitioner intended to file a petition for writ of habeas corpus in this court and we have treated it as such.
Source: Leagle
