Submitted: May 11, 2017
from United States District Court for the District of North
Dakota - Fargo
SMITH, Chief Judge, COLLOTON and KELLY, Circuit Judges.
COLLOTON, Circuit Judge.
Keller appeals the district court's  dismissal of his
petition for writ of federal habeas corpus under 28 U.S.C.
§ 2254. We affirm.
2003, a jury in North Dakota state court found Keller guilty
of conspiracy to commit murder, attempted murder, and
reckless endangerment. Keller appealed, arguing that the
evidence was insufficient to support his convictions for
conspiracy to commit murder and attempted murder. The North
Dakota Supreme Court affirmed. State v. Keller, 695
N.W.2d 703 (N.D. 2005).
years later, the North Dakota Supreme Court decided three
cases addressing the intent requirement for conspiracy to
commit murder and for attempted murder. In State v.
Borner, 836 N.W.2d 383 (N.D. 2013), the court determined
that to be guilty of conspiracy to commit murder under state
law, one must intend to cause death; extreme indifference to
the value of human life is not sufficient. Id. at
386. The court in Dominguez v. State, 840 N.W.2d 596
(N.D. 2013), similarly held that a defendant cannot be
convicted for attempted murder on a theory of extreme
indifference. Id. at 598. Applying
Dominguez, the court in Coppage v. State,
843 N.W.2d 291 (N.D. 2014), granted a prisoner
post-conviction relief because he was convicted of attempted
murder based on a finding that he manifested an extreme
indifference to the value of human life. Id. at 303.
these decisions, Keller moved in state court to correct an
illegal sentence. Keller urged the court to vacate his
attempted murder conviction because the jury instructions
allowed a guilty verdict for attempted murder on a theory of
extreme indifference without a finding of intent to cause
death. The state district court denied his motion, concluding
that Keller was not seeking to correct an illegal sentence
but rather to apply subsequent North Dakota Supreme Court
decisions to his case retroactively.
then filed an application for state post-conviction relief.
The state district court dismissed the application as
untimely, and the North Dakota Supreme Court affirmed.
Keller v. State, 869 N.W.2d 424 (N.D. 2015). The
court rejected Keller's argument that he timely asserted
a new interpretation of North Dakota statutory law that was
retroactively applicable to his case. See N.D. Cent.
Code § 29-32.1-01(3)(a)(3). The court deemed
Borner, Dominguez, and Coppage
inapplicable because it thought the jury instructions in
Keller's case did not allow the jury to convict him based
merely on a finding of extreme indifference to the value of
human life. Keller, 869 N.W.2d at 431-34.
then filed a petition for federal habeas relief in the
district court under 28 U.S.C. § 2254. The district
court dismissed the petition as untimely under 28 U.S.C.
§ 2244 and concluded that Keller was not eligible for
equitable tolling. Keller appeals, and we review the
dismissal de novo. Streu v. Dormire, 557
F.3d 960, 961 (8th Cir. 2009).
the federal Antiterrorism and Effective Death Penalty Act of
1996, a state prisoner has one year from the latest of four
dates to seek federal habeas corpus relief. 28 U.S.C. §
2244(d)(1). The first limitations period is one year from the
date when the judgment of the state court became final.
Id. § 2244(d)(1)(A). Keller's conviction
became final in 2005, so his petition does not meet the first
criterion. Keller contends, however, that his petition was
timely under § 2244(d)(1)(D). That section provides that
the one-year limitation period may begin to run on "the
date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of
due diligence." Relying on Johnson v. United
States, 544 U.S. 295 (2005), Keller contends that the
state supreme court's decisions in Borner,
Dominguez, and Coppage are the
"factual predicates" of his claim and that he filed
his petition within one year of those decisions.
involved a motion to vacate sentence by a federal prisoner
under 28 U.S.C. § 2255. Section 2255 sets time limits
similar to those applicable to state prisoners under §
2244(d). One subsection provides that a § 2255 motion is
timely if it is filed within one year of "the date on
which the facts supporting the claim or claims presented