                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-3893
                                    ___________

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

                         Submitted: June 12, 2007
                             Filed: September 6, 2007 (corrected September 12, 2007)
                                     ___________

Before MELLOY, SMITH, and GRUENDER, Circuit Judges.
                           ___________

SMITH, Circuit Judge.

      Keva Tyree O'Neal seeks federal habeas corpus relief from a 1997 Nebraska
criminal judgment. The district court1 denied relief, concluding that his petition was
time barred and violated the Antiterrorism and Effective Death Penalty Act's
(AEDPA) prohibition against filing multiple habeas petitions. The district court,
however, did grant O'Neal's application for a certificate of appealability. We affirm.



      1
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
                                    I. Background
      O'Neal pleaded no contest in a 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 (Neb. App. 2005)
(unpublished). O'Neal failed to file for state or federal post-conviction relief within
one year of the date on which his conviction became final and thus failed to comply
with AEDPA's statute of limitations requirements. 28 U.S.C. § 2244(d)(1)(A).

       Two weeks after the AEDPA statute of limitations had expired, O'Neal sought
state post-conviction relief. Four years later, while the state post-conviction relief was
pending, he filed a petition for habeas relief in federal district court. The federal
district court dismissed his petition as time barred. After the federal court dismissed
O'Neal's petition, a state court granted O'Neal post-conviction relief in the form of "a
new direct appeal" based upon his court-appointed counsel's failure to submit an
adequate poverty affidavit prior to his original appeal.

       After his success in the 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. 28 U.S.C. §2244(b).

       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

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obtain certification from the appropriate Circuit Court of Appeals pursuant to 28
U.S.C. §2244(b)."

                                     II. Discussion
       We review de novo the district court's AEDPA statute of limitations
determination. Painter v. Iowa, 247 F.3d 1255, 1256 (8th Cir. 2001). AEDPA requires
a state prisoner seeking federal habeas relief to file a petition with the district court
within one year after a state conviction becomes final. § 2244(d)(1)(A). A judgment
is final, for these purposes, 90 days after the conclusion of "direct review" within the
state appellate system. Id.; Curtiss v. Mount Pleasant Corr. Facility, 338 F.3d 851,
853 (8th Cir. 2003).

       O'Neal received a new direct appeal as state post-conviction relief. He avers that
Nebraska's grant of a new direct appeal restores him to the state's original direct
review process. Thus, he contends that his conviction is not final and that the habeas
statute of limitations, consequently, has not expired. Nebraska, on the other hand,
argues that the new direct appeal is merely a form of post-conviction relief that does
not restore O'Neal to the state's direct review process. Therefore, Nebraska reasons,
the finality of the judgment is unaffected, the AEDPA statute of limitations has
already expired, and O'Neal is ineligible to seek federal habeas relief.

       To determine whether a new direct appeal constitutes direct review within the
meaning of AEDPA, we must examine the underlying state law. Frasch v. Peguese,
414 F.3d 518, 522 (4th Cir. 2005); Bridges v. Johnson, 284 F.3d 1201, 1202 (11th Cir.
2002); Salinas v. Dretke, 354 F.3d 425 (5th Cir. 2004). The Nebraska Supreme Court
has explicitly rejected O'Neal's argument. In State v. McCracken, the court held that
the grant of a new direct appeal constitutes a new appellate process and does not
reinstate the original appellate process. State v. McCracken, 615 N.W.2d 882, 882
(Neb. 2000); State v. McCracken, 615 N.W.2d 902 (Neb. 2000) (McCracken II)
("[W]e conclude that a district court should more properly grant a 'new direct appeal'

                                          -3-
rather than 'reinstate' a past one."). This independent appellate mechanism allows a
defendant to adjudicate alleged errors without disturbing the original criminal
judgment. State v. Meers, 671 N.W.2d 234, 237 (Neb. 2003). In both his brief and at
oral argument, O'Neal conceded that under, Nebraska law, the grant of a new direct
appeal does not reverse the clock, but places him on a new appellate path. (Pet. Br. 10)
("Thus O'Neal at best can only get a new direct appeal rather than getting his previous
appeal reinstated . . . ."). We agree and hold that, under Nebraska law, a new direct
appeal does not constitute direct review for AEDPA purposes.

       In the alternative, O'Neal, citing Orange v. Calbone, 318 F.3d 1167 (10th Cir.
2003), argues that the unique circumstances present in this case—including a state
post-conviction relief court determination that his counsel failed to submit an
appropriate affidavit—justifies restarting the clock on the one-year statute of
limitations requirement. Orange contains no such holding. In Orange, a pro se
petitioner failed to properly raise the issue of whether his "appeal out of time"
constituted direct review under the applicable state law. Id. at 1170. The Tenth Circuit,
based upon that case's unusual circumstances and the petitioner's pro se status,
permitted the petitioner to argue the issue. Id. The ultimate holding of the Tenth
Circuit—that the grant of a new appeal under Oklahoma law constitutes direct review
for purposes of AEDPA—was based solely upon the court's interpretation of
Oklahoma law. Id. Oklahoma and Nebraska law differ on this issue. Therefore, we
conclude that Orange provides no basis for relief.2

      2
        At no point does O'Neal argue that we should apply the doctrine of equitable
tolling. Jihad v. Hvass, 267 F.3d 803, 805 (8th Cir. 2001) ("[e]quitable tolling affords
the otherwise time-barred petitioner an exceedingly narrow window of relief" and is
applicable only when "extraordinary circumstances beyond [petitioner's] control"
exist). Therefore, we do not consider whether the doctrine is applicable here. It is also
worth noting that O'Neal does not explain his failure to file a federal habeas petition
within the statute of limitations. The narrow grounds upon which his state post-
conviction relief was granted—failure to file a supplemental affidavit—is rooted
exclusively in Nebraska law and would not ordinarily justify the application of the
doctrine of equitable tolling.

                                          -4-
     Because we conclude that his petition is time barred, we do not consider
whether his petition constitutes a second or successive petition.

                                     III. Conclusion
       After a careful review of the record, we conclude that a new direct appeal is not
direct review under Nebraska law. We affirm the judgment of the district court.
                         ______________________________




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