United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
LEO I. BRISBOIS UNITED STATES MAGISTRATE JUDGE.
matter comes before the undersigned United States Magistrate
Judge pursuant to a general referral in accordance with the
provisions of 28 U.S.C. § 636 and Local Rule 72.1, as
well as, upon Petitioner Edward Keith Dembry's Petition
for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
[Docket No. 1].
Edward Keith Dembry has filed a petition for a writ of habeas
corpus under 28 U.S.C. § 2254 (hereinafter
“Petition”). [Docket No. 1]. The Petition is now
before the Court based on Rule 4 of the Rules Governing
Section 2254 Cases in the U.S. District Courts. Based upon
that review and for the reasons discussed herein, this
undersigned recommends that the Petition be DENIED as
2015, the State of Minnesota charged Dembry with first-degree
criminal sexual conduct, third-degree criminal sexual
conduct, and second-degree assault. Register of Actions,
State v. Dembry, No. 27-CR-15-5801, available
at http://pa.courts.state.mn.us (last accessed Mar. 19,
2019) (Dembry Register). Dembry pled guilty to
first-degree criminal sexual conduct. Id. On May 13,
2016-after Dembry's unsuccessful motion to withdraw the
guilty plea-the trial court sentenced him to 180 months in
prison. Id.; State v. Dembry, No. A16-1298,
2017 WL 2625524, at *2 (Minn.Ct.App. June 19, 2017).
appealed his conviction to the Minnesota Court of Appeals.
Dembry, 2017 WL 2625524, at *1. In that appeal,
he made two primary arguments.
he argued that the trial court had erred by denying his
plea-withdrawal motion in which he had argued that his
plea's factual basis had been insufficient. Id.
at *2. Second, Dembry argued that even if the factual basis
for his plea had been sufficient, the trial court had abused
its discretion by denying the plea-withdrawal motion; his
point here was that he had presented reasons justifying
withdrawal under Minnesota's standard for withdrawing
presentence guilty pleas. Id. at *3.
Court of Appeals affirmed Dembry's conviction on June 19,
2017, and Dembry petitioned the Minnesota Supreme Court for
review. Id. at *1. The Minnesota Supreme Court
denied review on September 19, 2017, and the Minnesota Court
of Appeals entered judgment on September 20, 2017.
Id.; State v. Dembry, No. A16-1298,
Judgment (Minn.Ct.App. Sept. 20, 2017), available at
http://macsnc.courts.state.mn.us (last accessed Mar. 19,
2019). There is no indication that Dembry sought further
review by filing a petition for a writ of certiorari with the
United States Supreme Court.
submitted the present Petition on January 29, 2019.
(See, Pet., [Docket No. 1], at 15). In the present
Petition, he raises three grounds for relief: (1) that he
“admitted to false allegations” and therefore, at
most he should have been convicted of third-degree criminal
sexual conduct; (2) that the colloquy underpinning his guilty
plea inappropriately consisted of leading questions; and (3)
that he received ineffective assistance of trial counsel
because that attorney “did not show [Dembry] any
evidence until [trial] was right around the corner” and
did not “go into details [of the] plea deal with
[Dembry].” (Id. at 6, 8, 9).
The Court need not consider the Petition's merits,
however, because the relevant statute of limitations plainly
bars the present Petition. Title 28 U.S.C. § 2244(d)
sets the relevant limitations period and provides as follows:
(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