Dan v. Jeffreys et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ANTHONY T. DAN,
Petitioner,
vs.
ROB JEFFREYS, Director of Nebraska
Dept. of Correctional Services; and MIKE
HILGERS, Attorney General for Nebraska;
Respondents.
8:25CV452
MEMORANDUM AND ORDER
On July 14, 2025, Petitioner Anthony T. Dan (“Petitioner” or “Dan”) filed what the
Court construed as a petition for writ of habeas corpus filed pursuant to 28 U.S.C. §
2254. Filing No. 1. Subsequently, on August 22, 2025, Dan filed an amended petition
using the Form AO 241 Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a
Person in State Custody (the “Amended Petition”), which the Court considers the
operative petition. Filing No. 9. The Court now conducts a preliminary review of Dan’s
Amended Petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts. In conducting this review, the Court has also considered
the documents attached to Dan’s “Motion of Complaint of Constitutional Law Violations”
(the “Motion”). Filing No. 5.
For the reasons discussed below, it appears Dan’s petition is barred by the
governing one-year statute of limitations found in 28 U.S.C. § 2244(d). Accordingly, the
Court will order Dan to show cause within 30 days why this case should not be
dismissed with prejudice as barred by the statute of limitations. The Court will also deny
Dan’s pending Motion.
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I. BACKGROUND
In his Amended Petition, Dan challenges his conviction for assault in the first
degree, a Class 2 felony, in case number CR19-4641 in the District Court of Douglas
County, Nebraska.1 Filing No. 9 at 1. Pursuant to a plea agreement, Dan pleaded no
contest to assault in the first degree and the State dismissed a second count of first-
degree assault and a count of criminal mischief, $5000 or more. Id.; Filing No. 5 at 80.
The state district court sentenced Dan to 15 to 20 years’ imprisonment on August 12,
2020. Filing No. 9 at 1; Filing No. 5 at 85–86. Dan filed a direct appeal, and the
Nebraska Court of Appeals summarily affirmed Dan’s conviction and sentence on
January 5, 2021, and issued its mandate on February 10, 2021. Filing No. 9 at 2; Filing
No. 5 at 11–12.
Though not clearly alleged in the Amended Petition, records submitted by Dan
show that he filed a motion for postconviction relief on October 13, 2021, which the
state district court denied without an evidentiary hearing on November 22, 2021. Filing
No. 5 at 15–18, 19. Dan also filed a “Motion to Amend Post-Conviction Relief” on
December 2, 2021, after the state district court denied his original postconviction
motion. Id. at 19, 39–42. The state district court denied Dan’s motion on December 7,
2021. Id. at 19–21. Dan appears to have filed documents in the Nebraska appellate
courts under the docket number associated with his direct appeal (A-20-0652)
beginning on or about December 27, 2021, but he does not clearly allege that he
appealed the denial of his postconviction motion. See Filing No. 9 at 10; Filing No. 5 at
1 Dan also alleges he was convicted of two misdemeanors—first offense willful reckless driving and failure
to appear, see Filing No. 9 at 1—but records filed by Dan show that those convictions stem from a
separate Douglas County Court case and Dan was released from custody with respect to those
convictions on or about April 14, 2020. See Filing No. 5 at 48–49.
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28–29, 36–38. A review of Dan’s state court records, available to this Court online,
show that he did not perfect an appeal from the state district court’s orders denying his
motion for postconviction relief and motion to amend.2
Dan filed his initial habeas petition on July 14, 2025, and this Court’s records
reflect that this is Dan’s first attempt at federal habeas corpus relief with respect to his
conviction. Liberally construed, Dan claims he received ineffective assistance of
counsel because counsel failed to raise the choice of two evils doctrine and he is
actually innocent.3
II. DISCUSSION
A district court may consider, sua sponte, the timeliness of a state prisoner’s
habeas corpus petition. See Day v. McDonough, 547 U.S. 198, 209 (2006). The
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), PL 104–132, April 24,
1996, 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;
2 This Court has been afforded access to the computerized record keeping system for the Nebraska state
courts. The Court takes judicial notice of the state court records related to this case in State v. Anthony T.
Dan, Case No. CR19-4641, District Court of Douglas County, Nebraska. See Stutzka v. McCarville, 420
F.3d 757, 760 n.2 (8th Cir. 2005) (court may take judicial notice of judicial opinions and public records).
Nebraska's judicial records may be retrieved on-line through the JUSTICE site,
https://www.nebraska.gov/justice/case.cgi. A copy of the JUSTICE record for Case No. CR19-4641 is
attached to this Memorandum and Order.
3 While Dan appears to frame his “actual innocence” allegation as an independent claim, “[t]he actual
innocence showing excuses a procedural bar. It does not constitute an independent substantive claim.”
Brian R. Means, Federal Habeas Manual § 9B:84 (West 2024) (citing Herrera v. Collins, 506 U.S. 390
(1993)); cf. Rouse v. United States, 14 F.4th 795, 801 n.4 (8th Cir. 2021) (“[I]t [is] an open question
whether such freestanding claims of actual innocence are cognizable.”) (citing McQuiggin v. Perkins, 569
U.S. 383, 392 (2013)).
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(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)).
In the present case, it appears from the Amended Petition and the state records
Dan submitted that Dan’s claim is barred by the statute of limitations because the
petition was filed more than one year after his judgment became final. See 28 U.S.C. §
2244(d)(1). Dan’s conviction became final on February 4, 2021, the date on which his
time for pursuing review in the Nebraska Supreme Court expired. See Gonzalez v.
Thaler, 565 U.S. 134, 150 (2012) (holding that, for a state prisoner who does not seek
review in a State’s highest court, the judgment becomes “final” for purposes of §
2244(d)(1)(A) on the date that the time for seeking such review expires); Neb. Ct. R.
App. P. § 2-102(F)(1) (stating that a petition for further review and memorandum brief in
support must be filed within 30 days after the release of the opinion of the Court of
Appeals or order finally disposing of the appeal). Accordingly, the one-year limitations
period began to run from February 4, 2021.
The limitations period was tolled beginning on October 13, 2021, when Dan
initiated his state postconviction proceedings. Dan filed his state postconviction motion
251 days after his conviction became final, and those 251 days count toward the one-
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year limitations period. See Bear v. Fayram, 650 F.3d 1120, 1122 (8th Cir. 2011)
(quoting 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 post-conviction relief is filed counts against the one-year period.’”). Dan’s
postconviction proceedings concluded on December 7, 2021, when the state district
court denied Dan’s motion to amend his postconviction motion, and Dan did not file an
appeal. However, Dan’s postconviction action remained pending during the time for
filing an appeal, even though Dan did not file one. See Streu v. Dormire, 557 F.3d 960,
966 (8th Cir. 2009) (citing Williams v. Bruton, 299 F.3d 981, 983 (8th Cir. 2002)).4
Wofford had until January 6, 2022, at the latest, to file his appeal,5 so the one-year
limitations period was tolled until that date.
Following the conclusion of his first state postconviction proceeding, Dan had 114
days remaining on the statute of limitations clock to file his federal habeas petition, that
is, until May 2, 2022.6 Dan did not file his habeas petition until over three years later on
July 14, 2025. Thus, absent sufficient tolling or an equitable exception, any claims
related to Dan’s conviction and sentence are barred by the statute of limitations.
4 While the Court applies Streu in this case, the Court notes that other judges of this Court have
recognized a possible conflict between Streu and the United States Supreme Court decision in Evans v.
Chavis, 546 U.S. 189 (2006), which held a state postconviction application is “pending” in 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,” 546 U.S. at 191 (emphasis in original). See
Gardner v. Nebraska, No. 8:16CV562, 2017 WL 2728411, at *1 n.1 (D. Neb. June 23, 2017) (discussing
conflict); see also Allen v. Frakes, No. 4:14CV3049, 2015 WL 1470343, at *2 (D. Neb. Mar. 31, 2015)
(applying Evans and concluding limitations period was not tolled during entire time period between state
district court’s denial of postconviction motion and petitioner’s filing of untimely notice of appeal).
5 For purposes of this review, the Court assumes Dan had thirty days after the state district court entered
its judgment denying his motion to amend his postconviction motion to file a notice of appeal. See Neb.
Rev. Stat. § 25-1912(1) (notice of appeal must be filed within 30 days after district court enters its
judgment).
6 114 days after January 6, 2022, fell on Saturday, April 30, 2022, so Dan would have had until the
following Monday, May 2, 2022, to file his federal habeas petition.
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Accordingly, the Court will require Dan to show cause why his Amended Petition should
not be dismissed.
III. PENDING MOTION
On July 28, 2025, Dan filed his Motion titled “Motion of Complaint of
Constitutional Law Violations of The choice of two Evils Doctrine, And Double Jeopardy
Case Violations.” Filing No. 5. In the Motion, Dan generally asserts claims of
constitutional violations against the various parties involved in his state criminal
prosecution for first-degree assault and the related misdemeanor convictions, including
his counsel, the state district court judge, the prosecutors, court staff, and police
officers. Dan also asserts claims against the Clerk of the Nebraska Supreme Court and
Court of Appeals for failing to file several of his pleadings and notify him of the
disposition of his direct appeal and against the Nebraska Attorney General for failing to
investigate his criminal cases. Based on these alleged violations, Dan asks the Court
“to give [him] the fundamental fairness in all these case numbers and law violations.”
Id. at 7.
Dan’s Motion appears to be a general request for relief from his criminal
conviction based on the constitutional violations he alleges. However, as the Court has
determined that Dan’s habeas petition appears to be barred by the statute of limitations
and will require him to show cause why this case should not be dismissed, the Court will
deny Dan’s Motion as premature. Moreover, to the extent Dan seeks to assert
constitutional claims against individual government officials, he must assert such claims
in an action brought pursuant to 42 U.S.C. § 1983 and cannot pursue such claims in this
habeas action.
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IT IS THEREFORE ORDERED that:
1. Dan is ordered to show cause within 30 days why this case should not be
dismissed because it is barred by the statute of limitations. Failure to respond to this
order will result in dismissal of this action without further notice to Dan for the reasons
explained above.
2. The Clerk of Court is directed to set a pro se case management deadline
in this matter with the following text: December 1, 2025: check for response to show
cause order.
3. Dan’s Motion, Filing No. 5, is denied as premature, but the Court has
considered the documents attached to the Motion in reviewing Dan’s Amended Petition.
Dated this 30th day of October, 2025.
BY THE COURT:
Joseph F. Bataillon
Senior United States District Judge
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