Rush v. Lewien

Filing 21

MEMORANDUM OPINION regarding Petition for Writ of Habeas Corpus 1 . A certificate of appealability will not be issued in this case. A separate order will be issued in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party)(SLP)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CLIFFORD L. RUSH,

)
)
Petitioner,
)
)
v.
)
)
LEWIEN, WARDEN,
)
)
Respondent.
)
______________________________)

4:14CV3042

MEMORANDUM OPINION

This matter is before the Court on petitioner Clifford
Rush’s (“Petitioner” or “Rush”) Petition for Writ of Habeas
Corpus (Filing No. 1).

For the reasons set forth below, the

Court finds that a grant of a writ of habeas corpus is not
warranted on any of the issues set forth in Rush’s habeas corpus
petition.
Liberally construed, Rush argues he is entitled to a
writ of habeas corpus based on the following claims:
Claim One: Petitioner was
convicted in violation of his
rights under the Fourth and
Fourteenth Amendments because law
enforcement officers did not have
reasonable suspicion to stop his
vehicle.
Claim Two: Petitioner was
convicted in violation of his Fifth
Amendment privilege against selfincrimination because the trial
court admitted evidence of
statements petitioner made “during

initial contact with police [that]
should have been suppressed.”
Claim Three: The trial court
failed to make sufficient findings
of fact when denying petitioner’s
motion to suppress in violation of
petitioner’s rights under the
Fourteenth Amendment.
Claim Four: The trial court
admitted evidence that petitioner
failed to submit to a breath test
in violation of petitioner’s rights
under the Fourteenth Amendment.
Claim Five: The evidence was
insufficient to sustain the verdict
of guilt beyond a reasonable doubt
in violation of petitioner’s rights
under the Fourteenth Amendment.
Claim Six: The trial court imposed
an excessive sentence in violation
of petitioner’s rights under the
Fourteenth Amendment.
(Filing No. 9 at CM/ECF pp. 1-2 (citation to habeas corpus
petition omitted).)
I.
A.

BACKGROUND

Conviction and Sentence
The Court states the facts as they were recited by the

Nebraska Court of Appeals in State v. Rush, No. A-13-045, 2013 WL
5434674, at *1-4 (Neb. Ct. App. Oct. 1, 2013) (affirming Rush’s
conviction and sentence on direct appeal).

-2-

See Bucklew v.

Luebbers, 436 F.3d 1010, 1013 (8th Cir.), cert. denied, 549 U.S.
1079 (2006).
On April 26, 2012, the State of Nebraska (“State”)
charged Rush by information in the District Court of Lancaster
County, Nebraska (“state district court”), with driving under the
influence (third offense) with refusal to submit to a chemical
test and also driving during revocation.
*1.

Rush, 2013 WL 543676,

Thereafter, Rush moved to suppress evidence and requested a

hearing pursuant to Jackson v. Denno, 378 U.S. 368 (1964).1

The

evidence presented at the hearing showed that police officers
John Kossow and Justin Roach were on patrol in their cruiser on
March 10, 2012, when they ran a routine license plate check of a
van driving in front of them.

Upon running the plate check, they

learned the registered owner of the van, Timothy Rush, had a 15year license suspension.

The information on their mobile data

terminal included a Department of Motor Vehicles photograph of
Timothy and a booking photograph from prior police contacts.
Kossow testified the officers pulled up next to the van on the

1

In Jackson v. Denno, the Supreme Court held that a
defendant objecting to the admission of a confession is entitled
to a fair hearing and reliable determination on whether a
confession was voluntary or involuntary. 378 U.S. at 376-77.
-3-

driver’s side.2

Kossow, who had prior contact with Timothy,

compared the photographs displayed on the terminal with the face
of the person driving the van and concluded they appeared to be
of the same person.

Kossow believed the lighting outside was

sufficient to allow him to identify who he believed to be
Timothy.

Rush, 2013 WL 5434674 at *1.
The officers began to follow the van and Kossow

activated the cruiser’s overhead lights.

The van continued

without stopping so Kossow started “hitting the siren.”

The

officers continued to follow the van until it pulled into a gas
station.

The van did not appear to pull over in response to the

lights and siren; rather, it appeared to have pulled up to the
gas pumps.

The driver exited the van and did not acknowledge the

officers’ presence until Kossow spoke to him directly.
asked the driver why he did not stop.

Kossow

As Kossow approached the

driver, he detected a very strong odor of alcohol.

Kossow

realized simultaneously that the driver was not Timothy and that
the driver was intoxicated.

Kossow formed his belief that the

driver was intoxicated based on his observations of slurred

2

At trial, Kossow testified that he had been incorrect when
he testified at the suppression hearing that the cruiser pulled
up to the driver’s side of the van. He testified at trial the
officers had actually pulled up to the passenger side of the van.
Rush, 2013 WL 5434674, at *3.
-4-

speech, watery and bloodshot eyes, and extreme confusion.

Upon

observing the driver more closely, Kossow realized the driver was
Rush, Timothy’s brother, whom Kossow also knew from previous
encounters.

Kossow had dealt with both of them in the past, and

he testified they look enough alike that they could be mistaken
for one another.

Kossow thought Rush also did not have a

driver’s license.

Id.

Kossow then asked Rush for his driver’s license.
appeared confused and extremely intoxicated.
provided his name.

Rush

Eventually, Rush

The officers checked his driver’s license

status, which confirmed his license was suspended.

Rush

performed field sobriety tests and showed impairment on all of
them.

In addition, Rush failed the preliminary breath test,

which was administered by Roach.

During Kossow’s contact with

Rush, he observed Rush was unsteady, had trouble walking, and
swayed as he stood.

Kossow commented to Rush that it was obvious

he had been drinking, and Rush said he had had “one.”

Kossow

told Rush that he knew he should not be driving because he did
not have a license and because he had been drinking, and Rush
yelled back that he knew he did not have a license.

After the

preliminary breath test, the officers placed Rush under arrest.
Kossow testified that he formed the opinion Rush was under the
influence of alcohol based on Rush’s performance on the field
-5-

sobriety tests, his general appearance, and the preliminary
breath test, although Kossow formed this opinion even before Rush
took the preliminary breath test.
Roach also testified.

Id. at *2.
His testimony was substantially

similar to Kossow’s testimony except that Roach stated the
officers initially pulled alongside the passenger side of the
van, not the driver’s side.

Roach testified the individual he

saw driving appeared to be Timothy, as the facial features of the
driver very closely matched those in the photographs of Timothy.
Roach also testified the van continued moving after the officers
activated the cruiser’s overhead lights.

Roach stated Kossow

“tripped” the siren a few times, too, but the van kept going
until it stopped at the gas pump, at which point the officers
initiated contact.

While Kossow approached the driver of the

van, Roach contacted the passengers.

Roach did not have contact

with the driver until Rush was placed in the back seat of the
cruiser, at which time he performed the preliminary breath test
on Rush.

Id.
Once Rush was arrested, the officers transported him to

jail, took Rush to the testing room, read him the post-arrest
chemical test advisement, and began the formal testing process.
Roach read the advisement to Rush, slid the advisement form over
to Rush, asked him if he understood it, and told him he had the
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right to read it himself.

Roach also asked Rush if he had any

questions and told him to sign by the “X” if he understood what
was read to him.

Rush became belligerent and out of control,

refused to sign the form, and slid the form back to Roach.

Roach

then checked Rush’s mouth for foreign objects, began the 15minute observation period, and gave Rush the opportunity to take
the breath test, which Rush refused.

At some point, Rush told

Roach that he has asthma and that he would not take the test
since he had already taken the preliminary breath test.

Kossow

and Roach repeatedly explained to Rush the reason for the two
tests and told him this was the formal test.

In response, Rush

called the officers names and said he would not take the test.
According to Roach, Rush’s statements were not made in response
to questions from the officers.

Roach testified neither officer

attempted to elicit information from Rush at the jail other than
in response to demographic questions.

Id.

Following the State’s presentation of evidence, Rush’s
attorney asked the Court to suppress Rush’s statements that he
“only had one” and that he knew he should not be driving, arguing
Rush was not free to leave the officer’s presence when those
statements were made.

Rush also wanted his answers to the

demographic questions at jail suppressed because he had been
arrested but not given his Miranda warnings when those questions
-7-

were asked.

Rush also asked the Court to suppress the evidence

from the stop because of the discrepancy between Kossow’s and
Roach’s testimony about which side of the van they pulled up to
in order to observe the driver.

Finally, Rush argued his refusal

to submit to the breath test should be suppressed because a
refusal is now “part and parcel of an aggravated offense” and he
was not advised of that, but was simply told that refusal to
submit to the test is a separate crime for which he could be
charged.

Id.
On September 20, 2012, the state district court entered

a written order denying all of Rush’s motions to suppress.

The

Court found the officers reasonably believed Timothy was driving
the van on a suspended license and therefore lawfully stopped the
van.

The Court found, even though they were mistaken as to the

identity of the driver, it was a reasonable mistake of fact based
on the officers’ observations of the driver and of Timothy’s
photographs and the fact that the van was registered to Timothy.
The Court found that upon contacting the driver, it was
immediately apparent to Kossow that Rush was extremely
intoxicated.

The Court concluded there was “probable cause” to

stop the van and probable cause to arrest Rush, and accordingly,
it overruled the motion to suppress evidence.

-8-

Id. at *3.

The state district court further found Rush was not in
custody when he made statements upon initial contact with police
and, therefore, those statements were admissible.

The Court also

overruled Rush’s motion to suppress most of his statements made
after he had been arrested.

The Court found that no Miranda

warnings were given after Rush was placed under arrest, and it
concluded that, except as set forth further in the order, any
statements Rush made in response to questions by the officers
should be suppressed.

The Court found that Rush’s statements

made that he was refusing to submit to a chemical test were
admissible and denied the motion to suppress as to statements
made regarding Rush’s refusal to submit.

The Court also found

that any statements volunteered by Rush were admissible and
overruled the motion as to any volunteered statements, which
included belligerent statements made by Rush calling the officers
names and a statement he made indicating that he “wanted to go to
his cell and pass out.”

The Court found that a review of all of

Rush’s statements revealed that he had knowledge and
understanding of what was said and that his answers were
responsive to the officers’ questions.

The Court found that

Rush’s statements were made without mental confusion, were made
with mental appreciation of what was being said, and were not the
product of any promises, threats, or coercion.
-9-

Finally, with

respect to the Jackson v. Denno issues, the Court found that all
the statements Rush made on March 10, 2012, were freely,
voluntarily, knowingly, and intelligently made.

Id.

Rush’s jury trial was held on November 13 and 14, 2012.
Both Kossow and Roach testified in a manner that was generally
consistent with the testimony they provided at the suppression
hearing.

Id. at *3.

Rush did not offer any evidence at trial.

Id. at *4.
The jury returned a verdict of guilty on both charges.
The state district court held an enhancement and sentencing
hearing on December 17, 2012, after which it sentenced Rush to 4
to 5 years imprisonment for driving under the influence, revoked
his license again for 15 years, and sentenced him to a concurrent
term of 3 to 3 months imprisonment for driving on a revoked
license, with a 1-year license revocation.
B.

Id.

Direct Appeal
Rush appealed his conviction and sentence to the

Nebraska Court of Appeals.

Rush argued the state district court

erred in (1) admitting evidence seized from him as a result of
the investigatory stop; (2) admitting statements made by him
obtained in violation of Miranda; (3) failing to make sufficient
findings of fact in its order denying his motions to suppress;
and (4) admitting evidence that he failed to submit to a breath
-10-

test.

He also argued the evidence adduced at trial was

insufficient to sustain his conviction, and that his sentence was
excessive.

(Filing No. 11-1 at CM/ECF pp. 150-151.)
The Nebraska Court of Appeals affirmed Rush’s

conviction and sentence in a written opinion on October 1, 2013.
See Rush, 2013 WL 5434674, at 1-9.

Thereafter, the Nebraska

Supreme Court denied Rush’s petition for further review without
issuing an opinion.
C.

(Filing No. 11-2 at CM/ECF p. 2.)

Habeas Corpus Petition
Rush filed his habeas corpus petition in this Court on

February 24, 2014 (Filing No. 1).

In response to the petition,

respondent filed an answer, a brief in support of the answer, and
the relevant state court records (Filing Nos. 11, 13, and 14).
Rush filed two briefs in support of his habeas corpus petition.
(Filing Nos. 12 and 18).
II.
A.

STANDARD OF REVIEW

Exhaustion Requirement
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–
(A) the applicant has exhausted the
remedies available in the courts of the
State; or

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(B)(I) there is an absence of
available State corrective process;
or
(ii) 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
process.
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

A state

prisoner must therefore present the substance of each federal
constitutional claim to the state courts before seeking federal
habeas corpus relief.

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

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Court of Appeals rules against the petitioner.

See Akins v.

Kenney, 410 F.3d 451, 454-55 (8th Cir. 2005).
Moreover, where “no state court remedy is available for
the unexhausted claim -- that is, if resort to the state courts
would be futile -- then the exhaustion requirement in § 2254(b)
is satisfied, but the failure to exhaust ‘provides an independent
and adequate state-law ground for the conviction and sentence,
and thus prevents federal habeas corpus review of the defaulted
claim, unless the petitioner can demonstrate cause and prejudice
for the default.’”

Armstrong v. Iowa, 418 F.3d 924, 926 (8th

Cir. 2005) (quoting Gray v. Netherland, 518 U.S. 152, 162
(1996)).
B.

Standard Under 28 U.S.C. § 2254(d)
When a state court has adjudicated a habeas

petitioner’s claim on the merits, there is a very limited and
extremely deferential standard of review both as to the law and
the facts.

See 28 U.S.C. § 2254(d).

Section 2254(d)(1) states

that a federal court may grant a writ of habeas corpus if the
state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.”
§ 2254(d)(1).

28 U.S.C.

A state court acts contrary to clearly established

federal law if it applies a legal rule that contradicts the
-13-

Supreme Court’s prior holdings or if it reaches a different
result from one of that Court’s cases despite confronting
indistinguishable facts.
406 (2000).

Williams v. Taylor, 529 U.S. 362, 405-

Further, “it is not enough for [the court] to

conclude that, in [its] independent judgment, [it] would have
applied federal law differently from the state court; the state
court’s application must have been objectively unreasonable.”
Rousan v. Roper, 436 F.3d 951, 956 (8th Cir. 2006).
With regard to the deference owed to factual findings
of a state court’s decision, Section 2254(d)(2) states that a
federal court may grant a writ of habeas corpus if a state court
proceeding “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.”
2254(d)(2).

28 U.S.C. §

In addition, a federal court must presume that a

factual determination made by the state court is correct, unless
the petitioner “rebut[s] the presumption of correctness by clear
and convincing evidence.”

28 U.S.C. § 2254(e)(1).

As the Supreme Court noted, “[i]f this standard is
difficult to meet, that is because it was meant to be.”
Harrington v. Richter, 131 S. Ct. 770, 786 (2011).

The deference

due state court decisions “preserves authority to issue the writ
in cases where there is no possibility fairminded jurists could
-14-

disagree that the state court’s decision conflicts with [Supreme
Court] precedents.”

Id.

However, this high degree of deference

only applies where a claim has been adjudicated on the merits by
the state court.

See Brown v. Luebbers, 371 F.3d 458, 460 (8th

Cir. 2004) (“[A]s the language of the statute makes clear, there
is a condition precedent that must be satisfied before we can
apply the deferential AEDPA standard to [the petitioner’s] claim.
The claim must have been ‘adjudicated on the merits’ in state
court.”).
The Eighth Circuit clarified what it means for a claim
to be adjudicated on the merits, finding that:
AEDPA’s requirement that a
petitioner’s claim be adjudicated
on the merits by a state court is
not an entitlement to a wellarticulated or even a correct
decision by a state court.
Accordingly, the postconviction
trial court’s discussion of
counsel’s performance -- combined
with its express determination that
the ineffective-assistance claim as
a whole lacked merit -- plainly
suffices as an adjudication on the
merits under AEDPA.
Worthington v. Roper, 631 F.3d 487, 496-97 (8th Cir. 2011)
(internal quotation marks and citations omitted).

The Court

also determined that a federal court reviewing a habeas claim
under AEDPA must “look through” the state court opinions and

-15-

“apply AEDPA review to the ‘last reasoned decision’ of the state
courts.”

Id. at 497.

A district court should do “so regardless

of whether the affirmance was reasoned as to some issues or was
a summary denial of all claims.”
III.
A.

Id.

DISCUSSION

Claim One
Rush argues in Claim One that he was convicted in

violation of his rights under the Fourth Amendment because
officers did not have reasonable suspicion to stop the van he
was driving.

The state district court found that officers

lawfully stopped the van.

The Nebraska Court of Appeals agreed

with the state district court’s conclusion, and the Nebraska
Supreme Court denied a petition for further review of the issue.
The Supreme Court’s holding in Stone v. Powell, 428
U.S. 465 (1976), bars this court from reviewing Claim One.

In

Stone, the Court held that “‘where the State has provided an
opportunity for full and fair litigation of a Fourth Amendment
claim, the Constitution does not require that a state prisoner
be granted federal habeas corpus relief on the ground that
evidence obtained in an unconstitutional search or seizure was
introduced at his trial.’”

Chavez v. Weber, 497 F.3d 796,

801-802 (8th Cir. 2007) (quoting Stone, 428 U.S. at 482).

-16-

Rush does not argue he was denied the opportunity to
fully and fairly litigate his claim in state court, nor could
he.

In order for Rush to do so, he would have to show the State

“‘provided no corrective procedures at all to address the
alleged Fourth Amendment violation’ or that the State ‘provided
a corrective mechanism, but [he] was precluded from using that
mechanism because of an unconscionable breakdown in the
underlying process.’”

Chavez, 497 F.3d at 802 (quoting Willett

v. Lockhart, 37 F.3d 1265, 1271-72 (8th Cir. 1994)).

Here, the

State provided corrective measures to address the alleged Fourth
Amendment violation.

The state district court held an

evidentiary hearing on Rush’s motion to suppress.

The state

district court concluded no Fourth Amendment violation occurred.
The Nebraska Court of Appeals upheld that determination, and the
Nebraska Supreme Court denied a petition for further review of
the issue.

Accordingly, this Court may not review the state

courts’ conclusions on Rush’s Fourth Amendment claim.
B.

Claim Two
Rush argues in Claim Two that his Fifth Amendment

privilege against self-incrimination was violated by the
introduction into evidence of statements he made to police
officers.

Rush complains about statements he made at the scene

of the traffic stop, and also about statements he made in
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conjunction with his refusal to submit to a breath test.
(Filing No. 12 at CM/ECF pp. 9-10.)
With respect to the statements made at the scene of
the traffic stop, the Nebraska Court of Appeals considered and
rejected Rush’s argument that the state district court erred in
admitting the statements into evidence.

Thereafter, the

Nebraska Supreme Court denied a petition for further review of
the issue.

The Nebraska Court of Appeals held, in relevant

part:
Rush argues that the statements he
made during his initial contact
with the police should have been
suppressed as custodial
interrogation without the benefit
of the Miranda warnings.
Specifically, Rush argues his
statements that he had only “one”
and that he knew he did not have a
license were the product of
unlawful custodial interrogation.
Rush points to the testimony of
the officers that he was not free
to leave at the time he made these
statements.
The Miranda procedures were not meant to preclude law
enforcement personnel from performing their traditional
investigatory functions such as general on-the-scene
questioning.

State v. Holman, 221 Neb. 730, 380 N.W.2d 304

(1986); State v. Bennett, 204 Neb. 28, 281 N.W.2d 216 (1979).
In on-the-scene investigations, the police may interview any
-18-

person not in custody and not subject to coercion for the
purpose of determining whether a crime has been committed and
who committed it.

Id.

Further, roadside questioning of a

driver detained pursuant to a routine traffic stop does not
constitute custodial interrogation for purposes of Miranda.
Instead, there must be some further action or treatment by the
police to render a driver in custody and entitled to Miranda
warnings.

State v. Holman, supra; State v. Brauer, 16 Neb.App.

257, 743 N.W.2d 655 (2007). . . .
The statements Rush complains of all occurred at the
time of the investigatory stop and fall within the context of
on-the-scene roadside questioning as part of the investigatory
stop.

Because those statements were made in the process of an

investigation to determine whether criminal activity was afoot,
the statements were not custodial and Miranda warnings were not
required.

Rush’s argument is without merit.

Rush, 2013 WL

5434674, at *6-7.
Here, Rush does not challenge the state courts’
findings of fact.

Rather, he takes issue with the state courts’

legal determination that Rush was not in custody -- and,
therefore, not entitled to Miranda warnings -- at the scene of
the traffic stop.

As he did in state court, he argues he was in

Miranda custody because, once the officers pulled him over, he
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was not free to leave the scene of the traffic stop.

Despite

Rush’s assertions to the contrary, the state courts’ conclusions
of law are consistent with clearly established federal law.

The

Supreme Court has held that roadside questioning of a motorist
who is pulled over in a routine traffic stop does not constitute
custodial interrogation.
423, 441-442 (1984).

Berkemer v. McCarty, 468 U.S. 420,

This is so even though “a traffic stop

significantly curtails the ‘freedom of action’ of the driver”
and it is generally “a crime either to ignore a policeman’s
signal to stop one’s car or, once having stopped, to drive away
without permission.”

Id. at 436.

Rush also argues statements he made in conjunction
with his refusal to submit to a breath test should have been
suppressed.
courts.

Rush did not raise this issue in Nebraska’s state

Moreover, Officer Roach testified at the hearing on

Rush’s motion to suppress that Rush’s statements that he would
not take the breath test were volunteered.
at CM/ECF p. 89.)
Fifth Amendment.

(See Filing No. 11-3

Volunteered statements are not barred by the
See United States v. Noonan, 745 F.3d 934,

937, n.2 (8th Cir. 2014) (“Because Miranda warnings are required
before custodial interrogation, ‘statements volunteered by a
suspect during the course of routine arrest procedures [and]
custodial statements made on the suspect’s own initiative are
-20-

not subject to the safeguards of Miranda.’”) (quoting Butzin v.
Wood, 886 F.2d 1016, 1018 (8th Cir. 1989), cert. denied, 496
U.S. 909 (1990)).
C.

Rush is not entitled to relief on this claim.

Claims Three, Four, and Six
In conducting a preliminary review of Rush’s petition,

this Court liberally construed Claims Three, Four, and Six to be
federal due process claims.3

(See Filing No. 9.)

However, it is

now apparent from the record that Rush never raised the
arguments as federal due process claims in Nebraska’s state
courts.

(See Filing No. 11-1 at CM/ECF pp. 168-173, 176-178

(Rush’s brief in on direct appeal); see also id. at CM/ECF pp.
125-128 (Rush’s petition for further review).)
therefore, procedurally defaulted.

The claims are,

(See Respondent’s brief in

support of answer at Filing No. 14 at CM/ECF pp. 17, 19-20, 2324 (arguing Claims Three, Four, and Six are procedurally
defaulted).)

3

Rush argued in Claim Three that the state district court
failed to make sufficient findings of fact in its order denying
Rush’s motion to suppress. Rush argued in Claim Four that the
state district court erred in admitting evidence that he failed
to submit to a breath test because law enforcement officers
advised him only “that he could be charged with a separate
crime,” not that “he could be charged with the enhancement of a
crime.” (Filing No. 1 at CM/ECF p. 10 (emphasis added).)
Finally, Rush argued in Claim Six that the state district court
imposed an excessive sentence.
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The Court cannot consider the merits of any
procedurally defaulted claims unless Rush shows cause and
prejudice to excuse the procedural default of the claim or he
shows that failure to consider the claim will result in a
fundamental miscarriage of justice.

Coleman v. Thompson, 501

U.S. 722, 750 (1991) (“In all cases in which a state prisoner
has defaulted his federal claims . . . federal habeas review of
the claims is barred unless the prisoner can demonstrate cause
for the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage of
justice.”); Strickler v. Greene, 527 U.S. 263, 283 n. 24 (1999)
(“[T]he existence of cause for a procedural default must
ordinarily turn on whether the prisoner can show that some
objective factor external to the defense impeded counsel’s
efforts to comply with the State’s procedural rule.”).
In response to respondent’s arguments that Claims
Three, Four, and Six are procedurally defaulted, Rush argues the
claims were not properly raised in state court because he had
ineffective assistance of counsel.
pp. 5-7.)

(See Filing No. 18 at CM/ECF

Rush offers no facts in support of his argument and

the Court will not speculate as to his reasoning.

Regardless,

Rush cannot make the threshold showing of prejudice.
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The

Nebraska Court of Appeals considered and rejected the crux of
each of the arguments raised in Claims Three, Four, and Six.
First, it determined the state district court’s order denying
Rush’s motion to suppress was sufficiently specific to allow
appellate review of the state district court’s decision.
Rush, 2013 WL 5434674, at *7.

See

Second, it found no merit to

Rush’s argument that the advisement provided by the officers was
incorrect or insufficient.

Id.

Finally, it determined Rush did

not receive an excessive sentence, as his sentences were all
within the statutory range.
each of these findings.

Id. at *9.

This Court agrees with

Moreover, each of these findings is

entitled to deference under the statutory standard of review
that applies to factual and legal conclusions made by the state
courts.

Rush has not shown that the Nebraska Court of Appeals’s

decisions on these issues were contrary to, or involved an
unreasonable application of, clearly established Federal law.
Rush is not entitled to relief on these claims.
D.

Claim Five
Rush argues in Claim Five that the evidence was

insufficient to sustain the jury’s finding of guilt beyond a
reasonable doubt.

The Nebraska Court of Appeals considered and

rejected this argument, and the Nebraska Supreme Court denied a

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petition for further review of the issue.

The Nebraska Court of

Appeals held, in relevant part:
In arguing this assignment of
error, Rush points to the fact
that there were no observed
traffic violations prior to the
stop and that the van was stopped
because the officers thought
Timothy was driving it on a
suspended license. Rush suggests
that multiple reasons could exist
for his failure to immediately
stop the van, his slurred speech,
his watery and bloodshot eyes, the
odor of alcohol, and his
performance on the field sobriety
tests.
The relevant question for this Court is whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.

Rush

was able to, and did, present evidence regarding these
alternative explanations to the jury, which apparently rejected
them.

There was sufficient evidence presented to support a

finding beyond a reasonable doubt that Rush was operating a
motor vehicle while under the influence of alcoholic liquor and
that he refused to submit to a chemical test.
of error is without merit.

This assignment

Rush, 2013 WL 5434674, at *8

(internal citation omitted).

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Rush has not argued, let alone shown, that the state
court’s decision was contrary to, or involved an unreasonable
application of, clearly established Federal law.

Nor could he.

Within the context of § 2254, the Court considers “‘whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’”
Liggins v. Burger, 422 F.3d 642, 647 (8th Cir. 2005) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

This same

standard was employed by the Nebraska Court of Appeals in
reviewing Rush’s claim concerning the sufficiency of the
evidence.

Moreover, Rush made no attempt to rebut any of the

state courts’ factual findings by clear and convincing evidence.
For these reasons, Rush is not entitled to relief on this claim.
IV.

CERTIFICATE OF APPEALABILITY

A petitioner cannot appeal an adverse ruling on his
petition for writ of habeas corpus under § 2254 unless he is
granted a certificate of appealability.
Fed. R. App. P. 22(b)(1).

28 U.S.C. § 2253(c)(1);

A certificate of appealability cannot

be granted unless the petitioner “has made a substantial showing
of the denial of a constitutional right.”
§ 2253(c)(2).

28 U.S.C.

To make such a showing, “[t]he petitioner must

demonstrate that reasonable jurists would find the district
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court’s assessment of the constitutional claims debatable or
wrong.”

Slack v. Daniel, 529 U.S. 473, 484 (2000).
In this case, Rush has failed to make a substantial

showing of the denial of a constitutional right.

The Court is

not persuaded that the issues raised in Rush’s petition are
debatable among reasonable jurists, that a court could resolve
the issues differently, or that the issues deserve further
proceedings.

Accordingly, a certificate of appealability will

be not issued in this case.

A separate order will be issued in

accordance with this memorandum opinion.
DATED this 27th day of January, 2015.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide
on their Web sites. Likewise, the Court has no agreements with any of these
third parties or their Web sites. The Court accepts no responsibility for the
availability or functionality of any hyperlink. Thus, the fact that a hyperlink
ceases to work or directs the user to some other site does not affect the opinion
of the Court.

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