Sanders v. Cruickshank et al

Filing 48

MEMORANDUM AND ORDER that the Motion to Alter or Amend under Rule 59(e) of the Federal Rules of Civil Procedure, ECF No. 45 , filed by Petitioner Ricky Sanders is denied. Ordered by Chief Judge Laurie Smith Camp. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

RICKY J. SANDERS,
Petitioner,

4:17CV3020

vs.
RICHARD CRUICKSHANK, Warden
Nebraska Penitentiary; and SCOTT R.
FRAKES, Director Nebraska Department
of Correctional Services;

MEMORANDUM
AND ORDER

Respondents.

This matter is before the Court on the Motion to Alter or Amend under Rule 59(e)
of the Federal Rules of Civil Procedure, ECF No. 45, filed by Petitioner Ricky Sanders.
For the reasons stated below, the Motion will be denied.
BACKGROUND
Sanders’s Motion asks the Court to alter or amend its Judgment, ECF No. 44,
denying his Petition for Habeas Corpus under 28 U.S.C. § 2254. The Court incorporates
the background discussion from its Memorandum and Order, ECF No. 43, Page ID 732730, by reference, and provides the following summary:
On November 16, 2011, in the District Court for Douglas County, Nebraska,
Sanders was convicted of discharging a firearm, in violation of Neb. Rev. Stat. § 281212.04,1 and using a firearm to commit a felony, in violation of Neb. Rev. Stat. § 28-

1

Section 1212.04 provides:

[a]ny person, within the territorial boundaries of any city of the first class or county
containing a city of the metropolitan class or primary class, who unlawfully, knowingly, and
intentionally or recklessly discharges a firearm, while in any motor vehicle or in the

1205(1)(a)(c). On January 20, 2012, Sanders directly appealed his conviction to the
Nebraska Court of Appeals arguing there was insufficient evidence to support his
convictions and that the district court imposed an excessive sentence. Sanders did not
seek further review of this decision by the Nebraska Supreme Court.
After his direct appeal, Sanders filed a pro se motion for postconviction relief under
the Nebraska Postconviction Relief Act, Neb. Rev. Stat. § 29-3001 et seq., with the
Douglas County District Court. The motion asserted a claim for ineffective assistance of
counsel based on counsel’s failure to challenge the constitutionality—state and federal—
of Neb. Rev. Stat. § 28-1212.04, and counsel’s failure to move to suppress evidence
obtained from a warrantless search of the vehicle. The district court denied Sanders’s
motion, and he appealed the denial directly to the Nebraska Supreme Court.

The

Nebraska Supreme Court affirmed the denial. State v. Sanders, 855 N.W.2d 350, 356,
359 (Neb. 2014).
Sanders then filed a petition for habeas corpus under Neb. Rev. Stat. § 29-2801
et seq, in the District Court for Lancaster County, Nebraska, arguing his judgment of
conviction was void because Neb. Rev. Stat. § 28-1212.04, on its face, violates the
Nebraska Constitution and the U.S. Constitution. The district court denied the petition
because, under Nebraska law, Sanders’s conviction was a final judgment that could not
be collaterally attacked with a petition for habeas corpus. The Nebraska Supreme Court
affirmed the denial. Sanders v. Frakes, 888 N.W.2d 514 (Neb. 2016).

proximity of any motor vehicle that such person has just exited, at or in the general direction
of any person, dwelling, building, structure, occupied motor vehicle, occupied aircraft,
inhabited motor home as defined in section 71-4603, or inhabited camper unit as defined
in section 60-1801, is guilty of a Class IC felony.

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Sanders filed his Petition under 28 U.S.C. § 2254 with this Court on February 15,
2017. The Court denied the Petition, Memorandum and Order, ECF Nos. 43, 44, and
Sanders filed a Motion under Fed. R. Civ. P. 59(e).
STANDARD OF REVIEW
“Rule 59(e) motions serve the limited function of correcting ‘manifest errors of law
or fact or to present newly discovered evidence.’” United States v. Metro. St. Louis Sewer
Dist., 440 F.3d 930, 933 (8th Cir. 2006) (quoting Innovative Home Health Care v. P. T.O. T. Assoc. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir. 1998)). “Such motions
cannot be used to introduce new evidence, tender new legal theories, or raise arguments
which could have been offered or raised prior to entry of judgment.”

Id. (quoting

Innovative Home Health Care, 141 F.3d at 1286).
DISCUSSION
Sanders’s Rule 59(e) Motion argues the Court failed to consider the evidence
submitted with his Petition that shows Neb. Rev. Stat. § 28-1212.04 disparately impacts
African Americans. Pl.’s Br., ECF No. 46, Page ID 7347. This is an as-applied challenge
to § 28-1212.04.
After a preliminary review of Sanders’s Petition, the Court2 found that he had
asserted the following two potentially cognizable claims:
Claim One: Petitioner was denied effective assistance of counsel because
(1) trial and appellate counsel (same counsel) failed to motion
to quash the Information on the ground that Neb. Rev. Stat. §
28-1212.04 is facially unconstitutional under Neb. Const. art.
III, § 18 and under equal protection, and (2) trial and appellate
counsel (same counsel) failed to file a motion to suppress the
2

The Honorable Richard G. Kopf, Senior Judge, United States District Court for the District of
Nebraska.

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illegal search and seizure of Petitioner and his passenger, as
well as the illegal search of Petitioner’s vehicle.
Claim Two:

Petitioner’s convictions are void because Neb. Rev. Stat. §
28-1212.04 is facially unconstitutional under equal protection.

ECF Nos. 4, 18 (emphasis in original). In its Memorandum and Order denying Sanders’s
Petition, the Court addressed these claims in reverse order.
I. Claim Two—Direct Constitutional Challenge
The Court concluded that § 28-1212.04 did not violate the Equal Protection Clause
of the Fourteenth Amendment to the U.S. Constitution, on its face. Memorandum and
Order, ECF No. 43, Page ID 7332-35. The Court did not address Sanders’s argument
that § 28-1212.04, as applied, violated the Equal Protection Clause based on its alleged
disparate impact upon African Americans because that claim was procedurally defaulted.
Memorandum and Order, ECF No. 43, Page ID 7335 n.6. This claim was also not included
as one of the potentially cognizable claims in the Order, ECF No. 4, following the
preliminary review of Sanders’s Petition. Thus, the Court finds no manifest error in
dismissing Claim Two of Sanders’s Petition.
II. Claim One—Ineffective Assistance of Counsel
First, the Court concluded the Nebraska Supreme Court reasonably applied the
principles in Strickland v. Washington, 466 U.S. 668 (1984) to Sanders’s assertion that
his trial and appellate counsel failed to challenge § 28-1212.04 under Article III, Section
18 of the Nebraska Constitution. Memorandum and Order, ECF No. 43, Page ID 733637. The Nebraska Supreme Court found that such a challenge was novel under Nebraska
law; therefore, the deficient-performance prong of Strickland was not satisfied.

Id.

Sanders now argues this was an unreasonable factual determination under 28 U.S.C. §
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2254(d)(2) because there is no evidence to support the Nebraska Supreme Court’s
conclusion that a challenge to § 28-1212.04 under Article III, Section 18 of the Nebraska
Constitution was novel. The Court finds that it was not manifest error to review and
dismiss this aspect of Claim One under 28 U.S.C. § 2254(d)(1).
Second, Sanders’s primary argument is that the Court erroneously failed to
address his assertion that his trial and appellate counsel failed to raise a disparate impact
equal protection challenge to § 28-1212.04 under the U.S. Constitution and the Nebraska
Constitution. The Court dismissed this aspect of Sanders’s ineffective-assistance claim
because the Order, ECF Nos. 4, 18, following a preliminary review of Sanders’s Petition
included only a facial challenge to § 28-1212.04. Memorandum and Order, ECF No. 43,
Page ID 7338 n.8. Sanders never objected to the Court’s characterization of his claims
following the preliminary review and the Court finds no manifest error in dismissing this
aspect of Claim One.
Sanders’s Rule 59(e) Motion states it is “troubling” that the Court has not
considered his argument that § 28-1212.04 disparately impacts African Americans, and
that his trial and appellate counsel failed to raise this argument before his conviction
became final. Pl.’s Br., ECF No. 46, Page ID 7348. Yet a facially neutral law, like § 281212.04, is not unconstitutional “[s]olely because it has a racially disproportionate impact.”
Washington v. Davis, 426 U.S. 229, 239 (1976). “The calculus of effects, the manner in
which a particular law reverberates in a society, is a legislative and not a judicial
responsibility.” Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 272 (1979). A statute,
neutral on its face, “is unconstitutional under the Equal Protection Clause only if that
impact can be traced to a discriminatory purpose.” Id. “Proving discriminatory purpose
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is no simple task.

It requires a showing that the law or practice in question was

‘implemented at least in part because of, not merely in spite of, its adverse effects upon
an identifiable group.’” Villanueva v. City of Scottsbluff, 779 F.3d 507, 511 (8th Cir. 2015)
(quoting Ricketts v. City of Columbia, 36 F.3d 775, 779 (8th Cir. 1994)).
Under this standard, Sanders’s Petition and subsequent Rule 59(e) Motion have
not demonstrated a reasonable probability that the result of his state criminal proceeding
would have been different if his trial and appellate counsel had raised an as-applied,
disparate-impact challenge to § 28-1212.04 under the Equal Protection Clause of either
the U.S Constitution or the Nebraska Constitution. See Strickland, 466 U.S. at 694. Thus,
the Court finds no manifest error in dismissing Claim One.
Accordingly,
IT IS ORDERED:

The Motion to Alter or Amend under Rule 59(e) of the Federal

Rules of Civil Procedure, ECF No. 45, filed by Petitioner Ricky Sanders is denied.

Dated this 28th day of August, 2018.

BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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