Pardee v. Kinney

Filing 27

MEMORANDUM OPINION on the respondent's unopposed Motion for Summary Judgment 19 . In this case, Pardee has failed to make a substantial showing of the denial of a constitutional right. The Court is not persuaded that the issues raised in Par dees petition are debatable among reasonable jurists, that a court could resolve the issues differently, or that the issues deserve further proceedings. Accordingly, the Court will not issue a certificate of appealability in this case. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBERT R. PARDEE,

)
)
Petitioner,
)
)
v.
)
)
SCOTT FRAKES, Director,
)
Neb. Dept. C.S.,
)
)
Respondent.
)
______________________________)

8:14CV185

MEMORANDUM OPINION

This matter is before the Court on respondent’s
unopposed Motion for Summary Judgment (Filing No. 19).
Respondent argues all of petitioner Robert Pardee’s (“Pardee”)
habeas corpus claims are procedurally defaulted.

The Court

agrees.
I.

BACKGROUND

The State of Nebraska (“State”) charged Pardee by
information in the District Court of Seward County, Nebraska
(“state district court”) with unlawful racketeering activity.
(Filing No. 20-1 at CM/ECF pp. 1, 5.)
the charge on April 9, 2013.

Pardee pled no contest to

(Id. at CM/ECF p. 5.)

On June 10,

2013, the state district court sentenced Pardee to two to three
years imprisonment.

(Id. at CM/ECF p. 4.)

Pardee did not appeal

his conviction and sentence or file a postconviction action.

Pardee filed a Petition for Writ of Habeas Corpus
(Filing No. 1) in this Court on June 9, 2014.

His claims are

summarized in the Court’s order on initial review dated October
10, 2014.

(See Filing No. 15 at CM/ECF pp. 1-2.)

Respondent

filed the Motion for Summary Judgment (Filing No. 19) at issue
here on November 14, 2014.
II.

Pardee did not oppose the motion.
STANDARD OF REVIEW

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
(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
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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
Court of Appeals rules against the petitioner.

See Akins v.

Kenney, 410 F.3d 451, 454-55 (8th Cir. 2005).
When “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

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

Stated another way, if a claim has not been presented

to Nebraska’s appellate courts and is now barred from
presentation, the claim is procedurally defaulted, not
unexhausted.

Akins, 410 F.3d at 456 n. 1.
III.

DISCUSSION

Pardee did not present any of his claims in Nebraska’s
appellate courts because he did not appeal his sentence or file a
postconviction action.

The Court will briefly explain why he is

now barred from presenting his claims in Nebraska’s appellate
courts.
To perfect an appeal under Nebraska law, a defendant is
required to file a notice of appeal within 30 days after a court
enters its judgment.

Neb. Rev. Stat. § 25-1912.

Pardee did not

file a direct appeal from the state district court’s judgment of
conviction and the time in which to do so has long passed.
Separately, Pardee may not now raise his claims in a
postconviction action in Nebraska’s state courts.

Section 29-

3001(4) of the Nebraska Revised Statutes provides that a one-year
period of limitation for filing a postconviction motion runs from
the latest of four specified dates.

The date applicable here is

“[t]he date the judgment of conviction became final by the

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conclusion of a direct appeal or the expiration of the time for
filing a direct appeal.”

Neb. Rev. Stat. § 29-3001(4)(a).

Pardee’s “judgment of conviction became final” on July
10, 2013, which was 30 days after the state district court
entered its sentencing order (i.e., “the expiration of the time
for filing a direct appeal,” see id.).

Thus, Pardee had until

July 10, 2014, to file a postconviction motion in the state
district court.

He did not do so.

For the foregoing reasons, the Court finds Pardee’s
claims were not presented to Nebraska’s appellate courts and they
are now barred from presentation.
procedurally defaulted.

Accordingly, the claims are

The Court cannot consider the merits of

any procedurally defaulted claim unless Pardee 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)
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(“[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.”).
Here, Pardee has not argued, much less shown, cause and
prejudice to excuse the procedural default of his claims.

In

addition, he has not argued the Court’s failure to consider his
claims will result in a fundamental miscarriage of justice.

The

Court finds Pardee is not entitled to relief on any of the claims
he raised in his habeas corpus petition.
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
court’s assessment of the constitutional claims debatable or
wrong.”

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

showing of the denial of a constitutional right.
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The Court is

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

Accordingly, the Court will not issue a certificate

of appealability in this case.

A separate order will be entered

in accordance with this memorandum opinion.
DATED this 30th day of March, 2015.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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