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Dembry v. State

United States District Court, D. Minnesota

March 28, 2019

Edward Keith Dembry, [1] Petitioner,
v.
State of Minnesota, Respondent.

          REPORT AND RECOMMENDATION

          HON. LEO I. BRISBOIS UNITED STATES MAGISTRATE JUDGE.

         This 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].

         Petitioner 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 untimely.

         In May 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).

         Dembry appealed his conviction to the Minnesota Court of Appeals. Dembry, 2017 WL 2625524, at *1.[2] In that appeal, he made two primary arguments.

         First, 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.

         The 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.

         Dembry submitted the present Petition on January 29, 2019. (See, Pet., [Docket No. 1], at 15).[3] 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 ...

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