Rush v. Thurber
MEMORANDUM AND ORDER - Respondent's Motion for Summary Judgment (Filing No. 7 ) is granted. Rush's Petition for Writ of Habeas Corpus (Filing No. 1) is denied in all respects and this action is dismissed without prejudice. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party)(GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CASE NO. 4:12CV3253
This matter is before the court on Respondent’s Motion for Summary Judgment.
(Filing No. 7.) Petitioner Clifford Rush (“Rush”) did not submit a response to the Motion.
(See Docket Sheet.) As set forth below, the Motion for Summary Judgment is granted.
Rush filed his Petition for Writ of Habeas Corpus (“Petition”) in this matter on
December 19, 2012. (Filing No. 1.) On initial review, the court liberally construed the
Petition to allege two claims:
Rush was denied the effective assistance of trial counsel in
violation of the Sixth and Fourteenth Amendments because his
trial counsel failed to appeal his conviction.
Rush was denied due process in violation of the Fourteenth
Amendment because he was denied the right to appeal.
(Filing No. 5 at CM/ECF p. 1.)
On March 13, 2013, Respondent filed a Motion for Summary Judgment (Filing No.
7), Brief (Filing No. 9), and State Court Records (Filing No. 8) arguing, among other things,
that the Petition is meritless because Rush’s attorney filed a notice of appeal in his criminal
case and his case is currently on appeal in state court. (Filing No. 9 at CM/ECF p. 3.)
Rush did not respond. (See Docket Sheet.)
On December 17, 2012, Rush was sentenced, in Case No. CR12-399, to
serve a prison term of 4 to 5 years for a third offense of driving under the influence, and
3 months for the offense of driving during revocation. (Filing No. 8-1 at CM/ECF pp. 3, 6.)
On December 19, 2012, Rush filed his Petition in this court, alleging that his
attorney failed to appeal his conviction and that he was denied the right to appeal. (Filing
On January 14, 2013, Rush’s attorney filed a timely notice of appeal in Case
No. CR12-399, with the District Court for Lancaster County, Nebraska. (Filing No. 8-1 at
CM/ECF pp. 6-7.)
On January 16, 2013, the Nebraska Court of Appeals acknowledged the
receipt and filing of Rush’s Notice of Appeal in Case No. CR12-399. (Id. at CM/ECF p. 8.)
As discussed above, Rush claims that he was denied due process, and the effective
assistance of trial counsel, because his trial counsel failed to appeal his conviction. (Filing
No. 1. at CM/ECF pp. 1-16.) However, the undisputed record before this court clearly
shows that Rush’s attorney filed a timely appeal of Rush’s conviction. (See Filing No. 8-1.)
Accordingly, Rush’s claims lack merit.
Even if Rush’s attorney had not filed an appeal, Plaintiff’s has failed to show that he
presented his habeas claims to the state courts. As set forth in 28 U.S.C. § 2254(b)(1):
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
unless it appears that–
the applicant has exhausted the remedies available in the
courts of the State; or
there is an absence of available State corrective
circumstances exist that render such process ineffective
to protect the rights of the applicant.
28 U.S.C. § 2254(b)(1).
The United States Supreme Court has explained the habeas exhaustion
requirement as follows:
Because the exhaustion doctrine is designed to give the state courts a full
and fair opportunity to resolve federal constitutional claims before those
claims are presented to the federal courts . . . state prisoners must give the
state courts one full opportunity to resolve any constitutional issues by
invoking one complete round of the State’s established appellate review
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). A state prisoner must therefore “fairly
present” the substance of each federal constitutional claim to the state courts before
seeking federal habeas relief. Id. at 844. In Nebraska, “one complete round” ordinarily
means that each § 2254 claim must have been presented in an appeal to the Nebraska
Court of Appeals, and then in a petition for further review to the Nebraska Supreme Court
if the Court of Appeals rules against the petitioner. See Akins v. Kenney, 410 F.3d 451,
454-55 (8th Cir. 2005).
In short, Rush must fairly present the substance of his federal habeas claims to the
state courts before seeking federal habeas relief. “[I]f a defendant is denied his right to
appeal because his lawyer fails, when requested, to timely file a notice of appeal, the
proper means to attack that denial is by a postconviction relief action.” State v. Carter, 463
N.W.2d 332, 337 (1990), (construing State v. Halsey, 238 N.W.2d 249 (1976)). Rush has
not filed a state postconviction action and, based on the record before the court, his
criminal appeal remains pending.
IT IS THEREFORE ORDERED that:
Respondent’s Motion for Summary Judgment (Filing No. 7) is granted;
Rush’s Petition for Writ of Habeas Corpus (Filing No. 1) is denied in all
respects and this action is dismissed without prejudice; and
A separate judgment will be entered in accordance with this Memorandum
DATED this 27th day of August, 2013.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
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