                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-3893
                                    ___________

Keva Tyree O'Neal,                       *
                                         *
      Petitioner-Appellant,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Nebraska.
Michael Kenny, Warden,                   *
Nebraska State Penitentiary,             *
                                         *
      Respondent-Appellee.               *
                                    ___________

                               Submitted: February 27, 2009
                                  Filed: September 3, 2009
                                   ___________

Before MELLOY, SMITH, and GRUENDER, Circuit Judges.

                                    ___________

SMITH, Circuit Judge.

       Keva Tyree O'Neal sought federal habeas corpus relief from a 1997 Nebraska
criminal judgment. While the district court1 denied relief, determining that O'Neal's
petition was time barred and violated the Antiterrorism and Effective Death Penalty
Act's (AEDPA) prohibition against filing multiple habeas petitions, it did grant
O'Neal's application for a certificate of appealability. We affirmed, holding that a new


      1
       The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
direct appeal did not constitute direct review under Nebraska law. United States v.
O'Neal, 501 F.3d 969, 971 (8th Cir. 2007) ("O'Neal III"). The Supreme Court vacated
and remanded for reconsideration in light of Jimenez v. Quarterman, 129 S. Ct. 681
(2009). Having considered Jiminez's impact, we again affirm the judgment of the
district court.

                                      I. Background
        O'Neal, pursuant to a plea agreement, pleaded no contest in Nebraska state court
to three counts of attempted assault in the first degree and two counts of use of a
deadly weapon to commit a felony. State v. O'Neal, No. A-04-536, 2005 WL
1022027, at *1 (Neb. Ct. App. May 3, 2005) (unpublished) ("O'Neal II"). On April 2,
1997, O'Neal was sentenced to four to five years' imprisonment for each of the three
convictions for attempted assault in the first degree and 20 to 25 years' imprisonment
for each of the two convictions for use of a deadly weapon to commit a felony. The
state trial court ordered that all five sentences run consecutively, for a total of 52 to
65 years' imprisonment. Id.

       On April 30, 1997, O'Neal filed a notice of appeal with the Nebraska Supreme
Court, but it dismissed O'Neal's direct appeal for lack of jurisdiction on May 22, 1997,
because O'Neal failed to submit "a sufficient affidavit of poverty in lieu of a docket
fee." Id.

       On August 21, 1997, the time allowed for O'Neal to seek a petition for writ of
certiorari with the Supreme Court of the United States expired. One year later, on
August 21, 1998, the AEDPA statute of limitations expired. See 28 U.S.C.
§ 2244(d)(1)(A).

     On October 9, 1998, O'Neal filed his first state postconviction action in
Nebraska state court.



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       Less than three years later, on April 6, 2001, O'Neal filed his first federal
habeas corpus petition under 28 U.S.C. § 2254. O'Neal v. Kenny, 49 F. App'x. 84, 84
(8th Cir. 2002) (unpublished per curiam) ("O'Neal I"). But on November 15, 2001, the
federal district court "dismissed O'Neal's habeas petition without prejudice for failure
to exhaust state remedies." Id. The district court certified for appeal the question of
the state's potential inordinate delay in resolving O'Neal's state collateral proceeding.
Id. "Because we [could not] tell from the undeveloped record whether the
circumstances of this case warrant[ed] excusing O'Neal's failure to exhaust state
remedies, we vacate[d] the district court's dismissal and remand[ed] for further
proceedings." Id.

      Thereafter, the district court dismissed O'Neal's federal habeas corpus
proceeding on the ground that the federal habeas corpus statute of limitations had run
before O'Neal had initiated his state collateral proceeding on October 9, 1998.

      Then, on April 19, 2004, the Nebraska state trial court granted O'Neal
postconviction relief in the form of "a new direct appeal" based upon O'Neal's court-
appointed counsel's failure to submit an adequate poverty affidavit prior to his original
appeal. On May 3, 2005, the Nebraska Court of Appeals affirmed O'Neal's conviction
and modified certain of O'Neal's sentences due to legislation enacted since his original
sentences were imposed. O'Neal II, 2005 WL 1022027, at *10.

       After his success in state courts, O'Neal filed a second petition in federal district
court seeking federal habeas relief. The district court, sua sponte, determined that the
grant of a new direct appeal did not affect AEDPA's statute-of-limitations requirement
and, therefore, the petition remained time barred. The court also determined that
AEDPA's prohibition against filing multiple habeas petitions prevented the court from
granting relief. See 28 U.S.C. § 2244(b).




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       The district court certified these two independent grounds for dismissal to this
court: "(1) whether or not the AEDPA statute of limitations calculation is affected
when a new direct appeal is granted to a state prisoner on post-conviction review, and
the prisoner's original direct appeal is vacated, thereby altering the date of 'finality' of
the judgment of conviction" and "(2) whether or not, under such circumstances, a
petitioner's request for relief from judgment in a closed habeas case should be treated
as a second or successive habeas corpus petition for which the petitioner must first
obtain certification from the appropriate Circuit Court of Appeals pursuant to 28
U.S.C. § 2244(b)."

                                      II. Discussion
       We are specifically called on in this case to determine what effect Jiminez v.
Quarterman, 129 S. Ct. 681(2009), has on the instant case. In Jiminez, the Supreme
Court held that a state court's grant of a right to file an out-of-time direct appeal resets
the date when the conviction becomes "final" under AEDPA. Id. at 686. O'Neal, after
being denied habeas relief in federal district court, was granted postconviction relief
in state court in the form of a "new direct appeal" based on his court-appointed
counsel's failure to submit an adequate poverty affidavit prior to his original appeal.

      AEDPA "establishes a 1-year time limitation for a state prisoner to file a federal
habeas corpus petition. That year runs from the latest of four specified dates,"
including "'the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review.'" Id. at 683 (quoting 28
U.S.C. § 2244(d)(1)(A)).

        In Jiminez, after the petitioner was sentenced in state court for burglary in 1995,
the petitioner's counsel filed an appellate brief with the state appellate court, advising
it that he could not identify a "nonfrivolous ground on which to base an appeal." Id.
Counsel took a copy of the brief and a letter (informing the petitioner of his right to
file a pro se brief) to the county jail where counsel believed the petitioner to be. Id.

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But the petitioner had been transferred to a state facility and, as a result, failed to
receive the delivery. Id. The state appellate court "dismissed the appeal on September
11, 1996, and served petitioner with notice of the dismissal at the county-jail address
that, again, was the wrong address." Id. When the petitioner learned that his appeal
had been dismissed, he filed an application in state court for a writ of habeas corpus
pursuant to the state's criminal code, asserting that he was denied the opportunity to
file a pro se brief. Id. Agreeing with the petitioner, the state appellate court, on
September 25, 2002, granted the petitioner the right to file an out-of-time appeal,
noting that "'all time limits shall be calculated as if the sentence had been imposed on
the date that the mandate of this Court issues.'" Id. at 683–84 (quoting Ex parte
Jimenez, No. 74,433 (per curiam), App. 26, 27). The petitioner then filed an out-of-
time appeal, and his conviction was subsequently affirmed. Id. at 684. The state
appellate court denied discretionary review on October 8, 2003. Id. The time limit for
seeking certiorari review of that decision with the Supreme Court of the United States
expired on January 6, 2004. Id. The petitioner, on December 6, 2004, filed a second
application for a writ of habeas corpus in state court, which the state court denied on
June 29, 2005. Id.

       On July 19, 2005, the petitioner filed a federal habeas corpus petition, arguing
that his petition was timely because his conviction became "final" on January 6,
2004—when the time expired for the petitioner to seek certiorari review of the
decision in his out-of-time appeal. Id. "With January 6, 2004, as the start date,
petitioner contended that his July 19, 2005, petition was timely because the statute
excludes from the 1-year limitations period '[t]he 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.'" Id. (quoting 28 U.S.C. § 2244(d)(2)).
Because the petitioner "had a state habeas application pending from December 6,
2004, through June 29, 2005," "less than one year of included time—specifically, 355
days—passed between January 6, 2004, and July 19, 2005." Id. But the district court
disagreed and dismissed the federal habeas petition as time barred. Id.

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       The question presented to the Court was "whether the date on which direct
review became 'final' under the statute is October 11, 1996, when petitioner's
conviction initially became final, or January 6, 2004, when the out-of-time appeal
granted by the [state appellate court] became final." Id. at 685. The Court held that,
"[u]nder the plain meaning of the statutory text," January 6, 2004, was the controlling
date. Id.

       In reaching this conclusion, the Court first noted that the "finality" of a state-
court judgment is defined as "'the conclusion of direct review or the expiration of the
time for seeking such review.'" Id. (quoting 28 § 2244(d)(1)(A)). Next, the Court
pointed out that, with regard to postconviction relief for federal prisoners, "the
conclusion of direct review occurs when 'this Court affirms a conviction on the merits
on direct review or denies a petition for a writ of certiorari.'" Id. (quoting Clay v.
United States, 537 U.S. 522, 527, 528–32 (2003)). Then, the Court explained that "if
the federal prisoner chooses not to seek direct review in this Court, then the conviction
becomes final when 'the time for filing a certiorari petition expires.'" Id. (quoting Clay,
537 U.S. at 527).

       "In construing the similar language of § 2244(d)(1)(A)," the Court saw "no
reason to depart from this settled understanding, which comports with the most natural
reading of the statutory text." Id. Therefore, the Court concluded that "direct review
cannot conclude for purposes of § 2244(d)(1)(A) until the availability of direct appeal
to the state courts and to this Court has been exhausted." Id. (internal quotations and
citations omitted). According to the Court, until that time, direct review is not
complete, meaning that "a presumption of finality and legality cannot yet have
attached to the conviction and sentence." Id. at 685–86 (internal quotations, citations,
and alterations omitted).

      Thus, the Court found that once the state appellate court "reopened direct
review of petitioner's conviction on September 25, 2002, petitioner's conviction was

                                           -6-
no longer final for purposes of § 2244(d)(1)(A)." Id. at 686. In a footnote, the Court
made clear that its holding was a narrow one, explaining:

      We do not here decide whether petitioner could have sought timely
      federal habeas relief between October 11, 1997, when the 1-year
      limitations period initially expired, and September 25, 2002, when the
      state court ordered that his direct review be reopened. Were such a
      petition timely, though, it would not be through application of
      § 2244(d)(1)(A) because we have previously held that the possibility that
      a state court may reopen direct review "does not render convictions and
      sentences that are no longer subject to direct review nonfinal," Beard v.
      Banks, 542 U.S. 406, 412, 124 S. Ct. 2504, 159 L. Ed. 2d 494 (2004).
      We do not depart from that rule here; we merely hold that, where a state
      court has in fact reopened direct review, the conviction is rendered
      nonfinal for purposes of § 2244(d)(1)(A) during the pendency of the
      reopened appeal.

Id. at 686 n.4.

       The Court found that the state appellate court's order granting an out-of-time
appeal restored the pendency of the direct appeal. Consequently, the petitioner's
conviction "was again capable of modification through direct appeal to the state courts
and to this Court on certiorari review." Id. at 686. "Therefore, it was not until January
6, 2004, when time for seeking certiorari review in this Court expired, that petitioner's
conviction became 'final' through 'the conclusion of direct review or the expiration of
the time for seeking such review' under § 2244(d)(1)(A)." Id.

       According to the Court, § 2244(d)(1)(a) "requires a federal court, presented
with an individual's first petition for habeas relief, to make use of the date on which
the entirety of the state direct appellate review process was completed." Id. (emphasis
added). But the Court again emphasized that its decision was "a narrow one," holding
that


                                          -7-
      where a state court grants a criminal defendant the right to file an
      out-of-time direct appeal during state collateral review, but before the
      defendant has first sought federal habeas relief, his judgment is not yet
      "final" for purposes of § 2244(d)(1)(A). In such a case, "the date on
      which the judgment became final by the conclusion of direct review or
      the expiration of the time for seeking such review" must reflect the
      conclusion of the out-of-time direct appeal, or the expiration of the time
      for seeking review of that appeal.

Id. at 686–87 (emphasis added).

       O'Neal's case is factually distinguishable from Jiminez and thus not controlled
by its holding. In Jiminez, the petitioner had never filed a federal habeas petition
before the state appellate court granted him a new direct appeal. In contrast, after the
Nebraska Supreme Court dismissed O'Neal's direct appeal, and after the time allowed
to seek a petition for writ of certiorari with the Supreme Court expired, O'Neal did file
a federal habeas petition before the Nebraska state trial court granted him a new direct
appeal. In fact, over three years passed between O'Neal's filing of his first habeas
petition and the Nebraska state trial court's grant of a new direct appeal.

       This is precisely the situation that the Court cautioned that it was not ruling on
in Jiminez. The Court's footnote specifically says that it was not deciding "whether
petitioner could have sought timely federal habeas relief between October 11, 1997,
when the 1-year limitations period initially expired, and September 25, 2002, when
the state court ordered that his direct review be reopened." Id. at 686 n.4. The Court
emphasized that "the possibility that a state court may reopen direct review does not
render convictions and sentences that are no longer subject to direct review nonfinal."
Id. (internal quotations and citation omitted). Finally, the Court recognized that its
holding was "a narrow one," specifically limiting its holding to situations in which a
state court grants a criminal defendant the right to file an out-of-time direct appeal
during state collateral review "but before the defendant has first sought federal habeas


                                          -8-
relief." Id. at 686. Here, as noted supra, O'Neal sought federal habeas relief before the
state trial court granted him a new direct appeal. Thus, Jiminez is not controlling
precedent for the issue presented in this case.

                                    III. Conclusion
      We therefore adopt our prior analysis in O'Neal III, 501 F.3d at 970–71, and
conclude that O'Neal's petition is time barred.
                       ______________________________




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