Engstrom v. Frakes - FILE ALL PLEADINGS IN CASES 8:17CV166 and 8:17CV327
MEMORANDUM AND ORDER that the petition for a writ of habeas corpus (filing no. 1 ) is denied and dismissed with prejudice. A separate judgment will be issued. However, no certificate of appealability will be issued. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SCOTT R. FRAKES,
SCOTT R. FRAKES,
Michael Engstrom (Engstrom or Petitioner) has filed one habeas corpus petition
attacking the related convictions and sentences handed down in Johnson County,
Nebraska, and Pawnee County, Nebraska, by the same trial judge.1 The Respondent
has moved for summary judgment primarily on the grounds that the petition is
Rule 2(e) of the Rules Governing Habeas Corpus Cases provides that a
“petitioner who seeks relief from judgments of more than one state court must file a
separate petition covering the judgment or judgments of each court.” Therefore, two
federal cases have been created, although the legal issues are identical. All citations
to the record are to 8:17CV166.
untimely. Petitioner has not responded. The motion for summary judgment will be
granted. I next briefly explain my reasoning.
In two separate but related cases (one filed in the District Court for Johnson
County and one filed in the District Court for Pawnee County), Engstrom pled no
contest to multiple felonies. Essentially, Engstrom robbed a store in Pawnee County,
the police gave chase and the chase ended in Johnson County.
He was sentenced in both cases on January 13, 2014. He took a direct appeal
in both cases. The Nebraska Court of Appeals summarily affirmed the convictions and
sentences and the mandate in the Johnson County case was issued on October 1, 2014,
and the mandate for the Pawnee County case was issued on October 21, 2014.
Engstrom did not seek further review by the Nebraska Supreme Court.
Engstrom filed a motion for post-conviction relief in the District Court of
Johnson County, Nebraska, on November 23, 2015. The next day, November 24,
2015, he filed a motion for post-conviction relief in the District Court of Pawnee
The district judge dismissed the post-conviction actions as untimely under the
provisions of Neb. Rev. Stat. § 29-3001 (West 2016), a one-year statute of limitations.
Essentially, the judge ruled that more than a year passed after the date of the issuance
of the mandates in Engstrom’s direct appeals. On February 14, 2017, the Nebraska
Court of Appeals affirmed the dismissals agreeing with the district judge.
Engstrom sought further review in each post-conviction case, but his requests
were denied. The mandates issued on May 3, 2017. This case was filed on May 15,
After initial review, I found the following claims might be cognizable:
Claim One: Petitioner was denied the effective assistance of counsel
because trial counsel allowed Petitioner to enter a guilty plea and be
sentenced without a mental evaluation and while the Petitioner was on
Claim Two: Petitioner was denied due process of law when the state
post-conviction courts denied him relief based upon the alleged fact that
the petition for post-conviction action was untimely, particularly when
trial and appellate counsel could not raise the mental health issues on
direct appeal because counsel in both courts was one and the same and
because no evidentiary hearing in the post-conviction proceedings was
held to determine whether the untimely filing was due to the Petitioner’s
As noted above, Engstrom has not disputed the material facts set forth by the
Respondent. Indeed, Engstrom has not responded at all. I therefore find that the
material facts set forth by Respondent (filing no. 13 at CM/ECF pp. 1-3) are not
A one-year statute of limitations applies to habeas corpus petitions filed
pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2244(d)(1). “For state prisoners, the
limitations period runs from ‘the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking such review.’”
Gordon v. Arkansas, 823 F.3d 1188, 1194-1195 (8th Cir. 2016) (State prisoner who
filed his federal habeas petition nearly eight months after one-year limitations period
under Antiterrorism and Effective Death Penalty Act (AEDPA) failed to show that he
exercised reasonable diligence in pursuit of his rights, as required for equitable tolling,
despite his contention that he was in the prison’s mental health unit for four months
following his guilty plea) (citation omitted).
Here it is undisputed that more than one year passed between the issuance of
the mandates in the direct appeals (October 1, 2014 and October 21, 2014) and the
filing of the state post-conviction actions (November 23, 2015 and November 24,
2015).2 That being so, the AEDPA statute of limitations ran out long before this
federal action was filed.
Even though Engstrom has not responded, I have considered whether his
petition and associated documents might provide him an escape from the statute of
limitations through the device of equitable tolling. A litigant seeking equitable tolling
must establish two elements: “(1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way.” Walker v. Norris, 436
F.3d 1026, 1032 (8th Cir. 2006). Petitioner has not established either one of these two
There are references to Engstrom having mental health problems that required
medication. However, attached to Engstrom’s post-conviction motion in the Johnson
County case is a transcript of the plea-taking proceeding where Engstrom told the
judge that while he had a head injury “a few years ago . . . I’d say I’m fine.” (Filing
no. 12-9 at CM/ECF p. 23.) Additionally, Engstrom told the judge about the
medications he was taking, observing that he had taken his medications “last night”
and believed he was “clearheaded” and understood “clearly the nature of these
proceedings and the consequences.” (Id. at CM/ECF pp. 27-28.) Still further, his
For a state prisoner like Petitioner who does not seek review in a state’s
highest court, the judgment becomes “final,” within meaning of Antiterrorism and
Effective Death Penalty Act’s (AEDPA) statute of limitations for habeas petitions, on
the date that the time for seeking such review expires. See, e.g., King v. Hobbs, 666
F.3d 1132, 1135 (8th Cir. 2012); Riddle v. Kemna, 523 F.3d 850, 855 (8th Cir. 2008),
abrogated in part by Gonzalez v. Thaler, 565 U.S. 134 (2012). Giving Engstrom the
benefit of every doubt, I have measured the clock starting time from the date the
mandates were issued regarding the direct appeals.
petition in this case and in the state post-convictions actions were clear and wellwritten.
There are also references in some of the documents to a prison riot3 and a
suggestion that the riot may have impaired Engstrom’s ability to timely file for relief.
But even Engstrom seems to admit that he had “the assistance of legal aids within
Tecumseh [the prison where the riot took place] . . . .” (Filing no. 1 at CM/ECF p. 7.)
In any event, there is certainly no competent evidence that the prison riot would have
impaired Engstrom’s ability to file an action for an entire year or even for a
particularly long period of time.
In short, I agree with the Nebraska Court of Appeals:
The fact that Engstrom alleges a mental disadvantage from an injury he
claims occurred in March 2011, years before his convictions and
sentencings, does not explain why those circumstances prevented him
from filing his postconviction motions by October 1 and 21, 2015. There
is nothing to indicate that Engstrom attempted to file before the statutory
deadlines or otherwise diligently pursued his rights during those 1-year
periods. Further, there was no extraordinary circumstance which
prevented a timely filing.
(Filing no. 12-14 at CM/ECF p. 5.)4
According to the Nebraska Court of Appeals, the prison riot took place on
May 10, 2015. (Filing no. 12-14 at CM/ECF p. 3.)
Additionally, in McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013), the
Supreme Court held that a habeas petitioner who can show actual innocence under the
rigorous standard of Schlup v. Delo, 513 U.S. 298 (1995), is excused from the
procedural bar of the statute of limitations under the miscarriage of justice exception.
A habeas petitioner, who seeks to overcome the one-year statute of limitations in
§ 2244(d)(1) upon a showing of “actual innocence,” must support his allegations with
“new, reliable evidence” that was not presented at trial and must show that it was more
likely than not that, in light of the new evidence, no juror, acting reasonably, would
Finally, 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. 28
U.S.C. § 2253(c)(1); 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b)(1). The standards
for certificates (1) where the district court reaches the merits or (2) where the district
court rules on procedural grounds are set forth in Slack v. McDaniel, 529 U.S. 473,
484-485 (2000). I have applied the appropriate standard and determined that Petitioner
is not entitled to a certificate of appealability.
IT IS ORDERED the petition for a writ of habeas corpus (filing no. 1) is denied
and dismissed with prejudice. A separate judgment will be issued. However, no
certificate of appealability will be issued.
DATED this 8th day of September, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
have voted to find the petitioner guilty beyond a reasonable doubt. Schlup, 513 U.S.
at 324-27. Petitioner has not come close to making such a showing.
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