Opinion
4:00CV3150
March 9, 2001
MEMORANDUM AND ORDER ON OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
This matter comes before me on the petitioner's objections, filing 8, to the magistrate judge's Report and Recommendation, filing 5. After reviewing the petitioner's habeas petition, the magistrate judge concluded that the petitioner's first three claims were procedurally defaulted, that the fourth claim lacked merit, and that the petition should therefore be dismissed. For the reasons discussed below, I agree with the magistrate judge's Report and Recommendation in part, and I find that the petition must be dismissed with prejudice.
I. Background
The background as set forth in this order is taken from Svoboda's Petition for Writ of Habeas Corpus, filing 1, and from his Index of Exhibits For Petitioner's Objections to Magistrate's Report and Recommendation, filing 9.
On December 23, 1993, the petitioner was convicted of two counts of burglary in Lancaster County District Court. On the advice of counsel, the petitioner pleaded no contest to the burglary counts. In exchange for his plea, the State abandoned its efforts to pursue sentencing enhancements on the basis of the petitioner's alleged status as a habitual criminal. Following his conviction, the petitioner was sentenced to two terms of five to ten years imprisonment, to be served consecutively.
On direct appeal, the petitioner, represented by new counsel, challenged the excessiveness of his sentence. The Nebraska Court of Appeals affirmed the petitioner's conviction and sentence in a November 29, 1994, order. The petitioner then filed a motion for post-conviction relief, raising three claims: ineffective assistance of trial counsel, involuntary plea, and ineffective assistance of appellate counsel. The District Court of Lancaster County denied the petitioner's motion on September 8, 1998, and the petitioner moved for a new trial. The petitioner's motion was placed into the prison mail system on September 17, 1998, but it was not filed stamped until September 21, 1998. The district court denied the petitioner's motion for new trial on November 30, 1998, and the petitioner filed his notice of appeal on December 7, 1998, challenging the denial of both his post-conviction motion and his motion for new trial. In an order dated March 1, 1999, the Nebraska Court of Appeals dismissed the petitioner's appeal for lack of jurisdiction, concluding that the petitioner's untimely motion for new trial did not toll the time for perfection of an appeal and did not extend or suspend the time limit for filing the notice of appeal. The petitioner then filed a Petition for Further Review with the Nebraska Supreme Court, arguing that the court of appeals abused its discretion and violated his due process rights in dismissing his appeal for lack of jurisdiction when his motion for new trial was, in fact, timely filed. On June 23, 1999, the Nebraska Supreme Court overruled the Petition for Further Review without opinion.
II. Federal Habeas Petition
The petitioner filed the present Petition for Writ of Habeas Corpus, filing 1, on June 15, 2000, raising the following four grounds for relief:
trial counsel rendered ineffective assistance in failing to investigate the petitioner's eligibility for the habitual criminal enhancement before advising the petitioner to accept the State's plea offer;
the no-contest plea was coerced by overcharging and was not voluntarily, knowingly, and intelligently entered because the petitioner was not eligible for the habitual criminal enhancement under Nebraska law, and the value of the State's plea offer was therefore illusory;
appellate counsel rendered ineffective assistance in (a) raising only one issue, i.e., the excessiveness of the petitioner's sentence, on appeal; (b) refusing the petitioner's request to investigate and challenge the effectiveness of the petitioner's trial counsel; (c) refusing to investigate the petitioner's eligibility for the habitual criminal enhancement; and (d) failing to investigate the constitutional infirmity underlying one of the petitioner's prior convictions;
the Nebraska Court of Appeals and Nebraska Supreme Court arbitrarily denied the petitioner's state-created right to an appeal in failing to recognize that his motion for new trial was timely filed, and therefore violated his due process rights, equal protection rights, and his First Amendment right to access to the courts.
After reviewing the petition, the magistrate judge recommended that I dismiss the petitioner's claims with prejudice. In reaching this decision, she first addressed the related habeas doctrines of exhaustion and procedural default:
The honorable Kathleen A. Jaudzemis, United States Magistrate Judge for the District of Nebraska.
The exhaustion doctrine, codified in 28 U.S.C. § 2254(b), is based upon notions of federalism and comity, and requires that a federal court, before considering the merits of a habeas claim, determine whether the precise claim has first been presented to the highest court of the state in which the judgment of conviction was entered, if procedures are available to do so. . . .
If the petition contains claims which have not been presented to the state's highest court, the next step is to determine whether petitioner has a presently available state court remedy. . . . If petitioner does not have a presently available state court remedy, but had one available to him at an earlier time and failed to pursue it, the federal court must determine whether the resulting procedural default in the state courts bars consideration of his claims in the federal courts.
Report and Recommendation at 4, filing 5 (citations omitted). Applying these principles, the magistrate judge found that the petitioner had procedurally defaulted his first three habeas claims. Id. at 6-7. In so finding, the magistrate judge recognized that these claims were included in the petitioner's state post-conviction motion, which was denied by the district court. Id. at 4. Noting that the Nebraska Court of Appeals then dismissed the petitioner's post-conviction appeal for lack of jurisdiction, the magistrate judge concluded that the appellate court's decision was based on "independent and adequate" state procedural grounds. Id. at 6-7, 9.
The magistrate judge then examined whether there was sufficient cause and prejudice to excuse the petitioner's default. Id. at 6, 7-10 (citing Ivy v. Caspari, 173 F.3d 1136, 1140 (8th Cir. 1999) ("Federal review of a habeas corpus petition is barred when a state court dismisses or rejects a prisoner's claims on independent and adequate state grounds unless the petitioner establishes cause for the default and actual prejudice resulting from the alleged violations of federal law." (citations omitted)). According to the magistrate judge, the petitioner attempted to show cause by alleging that the motion for new trial was timely filed, based on Nebraska law and the prison mailbox rule of Houston v. Lack, 487 U.S. 266 (1988). Id. at 7. While agreeing that prison mailbox rule provided the petitioner with additional time to mail his motion for new trial, the magistrate judge, relying on State v. Plymate, 598 N.W.2d 65 (Neb.Ct.App. 1999), nevertheless concluded that the petitioner's arguments failed because "a motion for new trial following the denial of postconviction relief does not extend the time for filing a notice of appeal under Nebraska case law." Id.
In support of her decision, the magistrate judge explained that in Plymate, the petitioner filed a motion for post-conviction relief in June 1997, and this motion was denied on September 29, 1997, without a hearing. See Plymate, 598 N.W.2d at 66. On October 7, 1997, the petitioner filed a motion captioned "Motion for New Trial," which the district court overruled on October 24, 1997. Id. The petitioner then filed a notice of appeal on November 24, 1997, purporting to challenge the October 24 order overruling his motion for new trial. Id. The petitioner's assigned errors, however, concerned "strictly the issues decided by the court in overruling his motion for postconviction relief." Id. Thus, upon review, the Nebraska Court of Appeals first addressed whether it had jurisdiction to review the district court's September 29 order. In discussing this issue, the appellate court noted that generally, filing a motion for new trial tolls the running of the statutory time limit for filing an appeal from a final order. Id. (citing Neb. Rev. Stat. § 25-912 (Cum. Supp. 1998)). The court also recognized, however, that "such is not the case unless the proceedings leading up to the motion for a new trial constitute a trial." Id. (citing Jarrett v. Eichler, 506 N.W.2d 682 (Neb. 1993). Thus, the court concluded that "[i]n the present case, because the district court denied Plymate an evidentiary hearing, there was no `trial' preceding Plymate's motion." Id. Accordingly, Plymate's motion, which the court characterized as a motion for reconsideration, did not toll the running of the thirty-day time limit for him to appeal the district court's order overruling his motion for post-conviction relief, and the only issue properly before the court was whether the district court abused its discretion in denying Plymate's motion for reconsideration. Id. at 66-67.
The magistrate judge, relying primarily on the above authority, determined that because there was no "trial" leading to the petitioner's motion for post-conviction relief, his motion for new trial did not toll the thirty-day statutory time limit to appeal the district court's order denying his motion. Report and Recommendation at 7, 9, filing 5. In reaching this decision, however, the magistrate judge did seem to suggest that if the petitioner had, indeed, been afforded an evidentiary hearing on his motion for post-conviction relief, the result may be different:
For a discussion of § 25-1912, the provision governing the time in which parties have to appeal, see infra Part IV.D.
Petitioner makes reference to a "hearing" on the postconviction motion in Lancaster County District Court. He does not allege that it was an evidentiary hearing under state postconviction law. In Plymate, no hearing was held. The Nebraska Court of Appeals' dismissal of the appeal as untimely does not appear to have been based on a distinction concerning whether a hearing was held. If a complete evidentiary hearing was held on petitioner's postconviction motion, petitioner may provide evidence of it along with any objection to this Report and Recommendation.Id. at 9, n. 1. Nevertheless, in the absence of evidence regarding an evidentiary hearing, the magistrate judge concluded that the petitioner's notice of appeal was untimely, due to his own failure to comply with state procedural rules. Id. at 9. Accordingly, the magistrate judge recommended that I dismiss the petitioner's first three claims for relief on procedural default grounds. See id. at 11. Turning then to the petitioner's final claim for relief, the magistrate judge found no merit to the contention that the state appellate courts had denied the petitioner's right to appeal and recommended that this claim also be dismissed. Id. at 10.
Pursuant to NELR 72.4, the petitioner was directed to file any objections to the magistrate judge's Report and Recommendation within ten days after being served with a copy of the recommendation. Id. at 11. On September 25, 2000, the petitioner requested an extension of time to file his objections, filing 6, and I granted his request, extending the deadline to October 31, 2000, filing 7. The petitioner then filed a Statement of Objections to Magistrate Judge's Report and Recommendation, filing 8, alleging the following:
the magistrate judge mislabeled his motion for new trial as a motion for "postconviction relief" on page three, paragraph four of the Report of Recommendation;
the magistrate judge did not conduct the proper inquiry into exhaustion as required by 28 U.S.C.A. § 2254(b);
the magistrate judge did not liberally construe his allegations as challenging the independence and adequacy of the state-law grounds supporting the dismissal of his post-conviction appeal in the state courts;
the magistrate judge did not liberally construe the term "hearing" as meaning an "evidentiary hearing";
the magistrate judge improperly assumed the role of "advocate for the State" in presenting a new theory, not relied upon by the Nebraska Court of Appeals, as to why the appellate court did not have jurisdiction over the petitioner's post-conviction appeal; and
the magistrate judge improperly recommended dismissal, rather than affording the petitioner an opportunity to file an amended petition to correct "technical defects" in his initial petition.
The petitioner requested that I reject the magistrate judge's recommendation, permit him to file an amended petition, and order the State to respond and produce the relevant state court records. After reviewing the petitioner's petition, it appears to me that some of his objections do, indeed, have merit. Nevertheless, I find that his Petition for Writ of Habeas Corpus, filing 1, must be dismissed.
III. Standard of Review
Pursuant to NELR 72.4, the petitioner has filed an objection to the magistrate judge's report and recommendation. I shall review the magistrate judge's recommendation de novo. See Jones v. Pillow, 47 F.3d 251, 252 (8th Cir. 1995) (citations omitted); NELR 72.4.
IV. Analysis
The initial inquiry in habeas cases is whether the petitioner has exhausted his available state court remedies. To satisfy the exhaustion requirement, codified at 28 U.S.C.A. § 2254, a petitioner must generally show that he either "made a fair presentation of his claims to the state courts or that he has no other presently available state remedies to pursue." Gentry v. Lansdown, 175 F.3d 1082, 1083 (8th Cir. 1999) (citations omitted). A petitioner may, however, trigger a statutory exception to the exhaustion requirement by showing that "there is an absence of available State corrective process" or that "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C.A. § 2254(b)(1)(B)(i)-(ii) (West Supp. 2000).
If a petition includes claims that were raised in the state courts but were not considered on the merits, the habeas court must determine whether it is barred from considering such claims. Generally, federal courts should not review a question of federal law decided by a state court "if the decision of that [state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991) (citations omitted). The "independent and adequate" state law ground may be either substantive or procedural in nature. Id. In the context of federal habeas proceedings, this principle bars review "when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement." Id. at 729-30. In such cases, "the state judgment rests on independent and adequate state procedural grounds." Id. at 729-30. The United States Supreme Court has recognized that the "independent and adequate state ground" doctrine is a necessary corollary to the exhaustion requirement, explaining as follows:
A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer "available" to him. In the absence of the independent and adequate state ground doctrine in federal habeas, habeas petitioners would be able to avoid the exhaustion requirement by defaulting their federal claims in state court. The independent and adequate state ground doctrine ensures that the States' interest in correcting their own mistakes is respected in all federal habeas cases.Id. at 732 (internal citations omitted); see also Gray v. Netherland, 518 U.S. 152, 161-62 (1996).
A petitioner who has procedurally defaulted his claims in state court pursuant to an independent and adequate state procedural bar may, however, overcome the presumption against federal habeas review. The petitioner's procedural default will be excused if the petitioner "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." Coleman, 501 U.S. at 750.
A. Petitioner's First Objection
The petitioner first notes that the magistrate judge, in discussing the petitioner's fourth ground for relief, mislabeled his motion for new trial as a "motion for postconviction relief." See Report and Recommendation at 3, ¶ 4, filing 5 ("Petitioner argues that the motion for postconviction relief was timely filed based on state law and the prison mailbox rule." (emphasis supplied)). I agree with the petitioner that this was probably a typographical error, and I have noted the correction.
B. Petitioner's Second Objection
Next, the petitioner contends that the magistrate judge did not conduct the proper inquiry into exhaustion as required by 28 U.S.C.A. § 2254(b). According to the petitioner, the magistrate judge should have inquired whether there was "an absence of available State corrective processes," or whether "circumstances exist that render such process ineffective to protect the rights of the applicant." See 28 U.S.C.A. § 2254(b)(1)(B)(i)-(ii). The petitioner therefore concludes that the magistrate judge failed "to liberally construe [his] allegations to fall under these exceptions to the exhaustion requirement." Brief in Support of Petitioner's Objections to the Magistrate's Report and Recommendations at 2, Svoboda v. Kenney, No. 4:00cv03150 (D.Neb.) [hereinafter Petitioner's Brief].
The petitioner appears to have misinterpreted the magistrate judge's conclusion regarding exhaustion. In finding that the petitioner had procedurally defaulted his first three grounds for relief, the magistrate judge must have also implicitly determined that the petitioner had satisfied the exhaustion requirement of § 2254(b). See Coleman, 501 U.S. at 732 ("A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer `available' to him."); see also Gray, 518 U.S. at 161-62 ("Title 28 U.S.C. § 2254(b) bars the granting of habeas corpus relief `unless it appears that the applicant has exhausted the remedies available in the courts of the State.' Because `[t]his requirement . . . refers only to remedies still available at the time of the federal petition,' . . . it is satisfied `if it is clear that [the habeas petitioner's] claims are now procedurally barred under [state] law.'" (citations omitted)). I am convinced that the magistrate judge's determination regarding exhaustion was correct, as the petitioner no longer appears to have a remedy available in the state courts with respect to his first three claims for relief. See infra Part IV.D (concluding that the petitioner has procedurally defaulted his first three claims for relief). Thus, because the petitioner has technically exhausted these claims, there is no reason to apply the exhaustion "exceptions" found in § 2254(b). Accordingly, the petitioner's second objection is without merit.
The remaining arguments in the petitioner's second objection are more properly characterized as challenges to the independence and adequacy of the state law ground underlying the Nebraska Court of Appeals' decision dismissing the petitioner's post-conviction appeal. See Petitioner's Brief at 3-4. Accordingly, these arguments will be fully addressed below. See infra Part IV.D.
C. Petitioner's Fifth Objection
In his fifth ground for relief, the petitioner asserts that the magistrate judge improperly assumed the role of "advocate for the State" in presenting a new theory, not relied upon by the Nebraska Court of Appeals, as to why the appellate court did not have jurisdiction over the petitioner's post-conviction appeal. According to the petitioner, this "new theory," derived from State v. Plymate, should not serve as the basis for finding a procedural default. The petitioner also alleges that the Plymate decision does not bar federal review, because the Lancaster County District Court did afford him an evidentiary hearing before dismissing his post-conviction motion. See Plymate, 598 N.W.2d at 66 ("[B]ecause the district court denied Plymate an evidentiary hearing, there was no "trial" preceding Plymate's motion. . . . Because there was no trial and because Plymate's motion for a new trial was not properly a motion for a new trial, it does not toll the running of the statutory time for him to file an appeal. . . .").The petitioner's fifth objection appears to have merit. I agree with the petitioner that the magistrate judge, by relying on Plymate, improperly "extended the state courts [sic] reasoning on why [it] did not have jurisdiction over the appeal." Petitioner's Brief at 12. The Nebraska Court of Appeals, in dismissing the petitioner's post-conviction appeal for lack of jurisdiction, concluded that the petitioner's "untimely motion for new trial is ineffectual, does not toll the time for perfection of an appeal, and does not extend or suspend the time limit for filing the notice of appeal." Order, State v. Svoboda, No. A-99-0117 (Neb.Ct.App. March 1, 1999), Petitioner's Ex. 6 (filing 9). In support of this conclusion, the appellate court cited State v. McCracken, 537 N.W.2d 502 (Neb. 1995) and Manske v. Manske, 518 N.W.2d 144 (Neb. 1994). Neither of these cases pertains to the situation addressed in Plymate, where the Nebraska Court of Appeals concluded that the petitioner's motion for new trial was more properly characterized as a motion for reconsideration, which does not toll the running of statutory time for filing an appeal. Plymate, 598 N.W.2d at 66. I therefore find that the magistrate judge erred in advancing a new procedural theory, not relied upon by the Nebraska Court of Appeals, as to why the appellate court did not have jurisdiction over the petitioner's post-conviction appeal. Accordingly, this new theory cannot serve as an "independent and adequate" state law ground barring me from reviewing the petitioner's first three claims for relief.
In McCracken, the defendant was found guilty on May 26, 1994, and his counsel orally moved for a new trial on the same day. McCracken, 537 N.W.2d at 504. On May 31, 1994, the defendant then filed a written motion for new trial. Id. The defendant was sentenced on August 15, 1994, and on September 7, 1994, the district court, after conducting a hearing, denied the defendant's motion for new trial. Id. On September 28, 1994, the defendant filed a notice of intent to appeal his conviction and the judgment imposed at the August 15 sentencing hearing. Id. Noting that the thirty-day filing requirement found in § 25-1912 of the Nebraska Code began running on August 15, the day the defendant was sentenced, the Nebraska Supreme Court concluded that the petitioner's notice of intent to appeal was untimely. Id. at 505. In dismissing the appeal for lack of jurisdiction, the court also noted that in criminal cases, "a motion for a new trial does not toll the running of the 30-day jurisdictional requirement of § 25-1912." Id.
In Manske, a divorced wife brought an action to modify her former husband's child support obligation. Manske, 518 N.W.2d at 146. On July 30, 1992, the district court modified the decree, and on August 11, the former husband filed a "Combined Motion Re: Leave to File Post-Trial Motion Out of Time; Enlargement of Findings; New Trial; Notice of Hearing." Id. The district court overruled the motion for new trial on August 21, and, on the same day, modified the July 30 order. Id. The former husband then filed a notice of appeal as to both the July and August orders on September 18. Id. On appeal, the Nebraska Supreme Court first concluded that the ten-day period for a filing a new trial motion expired on August 10, and that the former husband's August 11 motion was therefore untimely. Id. Accordingly, his motion for new trial was "ineffectual, [did] not toll the time for perfection of an appeal, and [did] not extend or suspend the time limit for filing a notice of appeal." Id. at 146-47 (citations omitted). In the absence of a timely motion for new trial, the former husband had thirty days from the July 30 order to file his notice of appeal as to this order. Id. at 147. Since his notice of appeal was not filed until September 18, well beyond the statutorily mandated thirty-day time limit, the court concluded that it did not have jurisdiction to review the July 30 order. Id.
D . Petitioner's Third Objection
I turn now to the petitioner's third objection, in which he alleges that the magistrate judge failed to construe his allegations as questioning the independence and adequacy of the state law ground underlying the Nebraska Court of Appeals' decision dismissing his post-conviction appeal. According to the petitioner, the allegations included in his fourth ground for relief show that the appellate court's decision "(1) was a novel and unexpected procedural decision because it ignores the prison mailbox rule and Neb.Rev.Stat. §§ 25-534, and 49-1201, (2) that it was dependent, not independent, of the federal constitutional question, and (3) that it was not a strictly or regularly enforced procedure sufficient to bar federal review." Petitioner's Brief at 4. Thus, the petitioner concludes, the "independent and adequate state law" doctrine does not bar this court from reviewing his first three grounds for relief. I disagree.
Section 25-1912 of the Nebraska Code prescribes the time within which a notice of appeal must be filed to vest jurisdiction with an appellate court. Neb. Rev. Stat. Ann. § 25-1912(1) (Michie 1995). According to this provision:
The proceedings to obtain a reversal, vacation, or modification of judgments and decrees rendered or final orders made by the district court . . . shall be by filing in the office of the clerk of the district court in which such judgment, decree, or final order was rendered, within thirty days after the rendition of such judgment or decree or the making of such final order, a notice of intention to prosecute such appeal signed by the appellant or appellants or his, her, or their attorney of record and . . . by depositing with the clerk of the district court the docket fee required by section 33-103.Id. (emphasis supplied). This thirty-day jurisdictional requirement may, however, be tolled by the filing of a timely motion for new trial. See id. § 1912(2) (Michie 1995) (stating that "[t]he running of the time for filing a notice of appeal shall be terminated as to all parties (a) by a motion for a new trial under section 25-1143 if such motion is filed by any party within ten days after the verdict, report, or decision was rendered . . ."); Wanha v. Long, 587 N.W.2d 531, 538 (Neb. 1998) ("A timely motion for new trial suspends the time limit for filing a notice of appeal, until the motion for new trial has been disposed of by the court rendering the decision." (citing Manske, 518 N.W.2d at 144); Williams v. Gering Public Schools, 463 N.W.2d 799, 803 (Neb. 1990) ("In general, the timely filing of a motion for new trial extends the time within which a notice of appeal must be filed to a period of 30 days following the overruling of that motion." (citations omitted)); see also Manske, 518 N.W.2d at 147 ("When a motion for new trial is filed out of time, the overruling thereof does not extend the time for appeal." (citing Ricketts v. Continental Nat. Bank, 101 N.W.2d 153 (Neb. 1960)); Metrejean v. Gunter, 481 N.W.2d 176, 178 (Neb. 1992) ("An untimely motion for new trial is ineffectual, does not toll the time for perfection of an appeal, and does not extend or suspend the time limit for filing a notice of appeal." (citations omitted). Generally, a motion for new trial must be filed "within ten days, either within or without the term, after the verdict, report or decision was rendered. . . ." Id. § 25-1143 (Michie 1995).
The quoted passage is the version of § 25-1912(1) that was in effect when the Nebraska Court of Appeals rendered its decision on March 1, 1999. This provision, however, has since been revised. See Neb. Rev. Stat. Ann. § 25-1912(1) (Lexis Supp. 2000).
This provision has also recently been revised. See Neb. Rev. Stat. Ann. § 25-1912(3) (Lexis Supp. 2000).
Section 25-1143 provides two "exceptions" to the ten-day time limitation where (1) the movant has been "unavoidably prevented" from filing his motion within the statutory time, or (2) where the movant's motion is based on "newly discovered evidence" that is material and "could not, with reasonable diligence" have been discovered and produced at trial. Neb. Rev. Stat. Ann. § 25-1143 (Michie 1995). Section 25-1145 requires that motions for new trial based on newly-discovered evidence be filed within one year after the final judgment was rendered. Id. § 25-1145 (Michie 1995). In this case, there is no indication that the petitioner based his motion for new trial on either of the exceptions outlined above.
Section 25-1143 has been repealed, effective July 13, 2000, and replaced with § 25-1144.01, which provides that "[A] motion for a new trial shall be filed no later than ten days after the entry of the judgment." Neb. Rev. Stat. Ann. § 25-1144.01 (Lexis Supp. 2000). Section 25-1145 has also been repealed, effective July 13, 2000. Id. § 25-1145 (Lexis Supp. 2000).
As discussed above, the Lancaster County District Court denied the petitioner's motion for post-conviction relief on September 8, 1998. According to the petitioner, he was notified of this decision by mail. See Petition at 11, ¶ 1, filing 1. He alleges that he then placed his motion for new trial in the prison mail on September 17, 1998. Id. ¶ 2. The motion was file-stamped by the Lancaster County District Court on September 21, 1998, and denied by the district court on November 30, 1998. The petitioner claims that he placed his notice of appeal in the prison mail on December 3, 1998. Id. ¶ 4. The notice was stamped as filed on December 7, 1998.
According to the petitioner, the Nebraska Court of Appeals erred in concluding that his motion for new trial was untimely. In support of his claim, the petitioner asserts, inter alia, that he was entitled to the benefit of the "prison mailbox rule," as derived from the United States Supreme Court's decision in Houston v. Lack, 487 U.S. 266 (1988). This rule, the petitioner argues, requires courts to recognize that pro se prisoners "file" their legal documents on the day such documents are delivered to prison authorities for forwarding to the clerk of court. In applying this rule, the petitioner asserts that his motion for new trial was "filed" on September 17, within the ten-day period prescribed by state law. Thus, the petitioner concludes that his timely motion for new trial tolled the running of the statutory time limit for filing an appeal from the district court's September 8 order, that the time for filing an appeal began running on November 30, the day his motion for new trial was denied, and that his December 7 notice of appeal was therefore timely filed. See Neb. Rev. Stat. Ann. § 25-1912(2) (Michie 1995 Lexis Supp. 2000); Wanha, 587 N.W.2d at 538; Williams, 463 N.W.2d at 803.
The magistrate judge determined that the petitioner was entitled to the benefit of the prison mailbox rule. See Report and Recommendation at 7, filing 5 ("Petitioner's contention that the prison mailbox rule provided him additional time to mail the motion for new trial is accurate."). I, however, disagree. In reviewing the relevant case law, I found no authority indicating that the Nebraska courts have adopted this rule for purposes of calculating the timing requirements of § 25-1143. Thus, in the absence of such authority, I find it difficult to conclude that the Nebraska Court of Appeals' decision was "novel" or "unexpected" in that it "ignored" the prison mailbox rule. See Petitioner's Brief at 4; see also Forgy v. Norris, 64 F.3d 399, 402 (8th Cir. 1995) ("As we have previously held, `unexpectable state procedural bars are not adequate to foreclose federal review of constitutional claims.'" (quoting Easter v. Endell, 37 F.3d 1343, 1346 (8th Cir. 1994)); Oxford v. Delo, 59 F.3d 741, 744-45 (8th Cir. 1995), cert. denied, 517 U.S. 1124 (1996) ("Federal review is not barred where a state procedural rule is inconsistently enforced or the state court undertakes a novel application of the rule." (citation omitted)). To the contrary, the petitioner could have certainly anticipated that the appellate court would not apply this rule. See Forgy, 64 F.3d at 402 (concluding that federal review was not barred where the petitioner "could not have anticipated that the Arkansas Supreme Court would refuse to consider his inadequate-notice claim. . . ."). Accordingly, the petitioner's adequacy challenge must fail, insofar as it is based on the applicability of the prison mailbox rule.
The Nebraska Supreme Court has, however, specifically rejected the prison mailbox rule in the context of calculating the thirty-day jurisdictional requirement of § 25-1912. See State v. Parmar, 586 N.W.2d 279 (Neb. 1998). In Parmar, the petitioner urged the Nebraska Supreme Court to adopt this rule and to find that his pro se notice of appeal and poverty affidavit were timely "filed" under § 25-1912. Parmar, 586 N.W.2d at 283. The court, however, refused to do so. Id. at 283-84. After first recognizing the reasonableness of the rationale behind Houston v. Lack, the court then reminded the petitioner that "jurisdictional statutes must be strictly construed." Id. at 283 (citation omitted). Noting that § 25-1912 "specifically states that an appeal shall be perfected by `filing [a notice of appeal and docket fee] in the office of the clerk of the district court' within 30 days," the court determined that "there is no statutory basis on which to conclude that the `prison delivery rule' applies in Nebraska." Id. at 283, 284 (emphasis in original). In reaching this decision, the court also commented that "prisoners acting pro se are subject to the same filing rules as other litigants." Id. at 284.
Next, the petitioner claims that the Nebraska Court of Appeals' decision was "novel" and "unexpected" because it ignored § 25-534 of the Nebraska Code. This provision provides, in part, as follows:
Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him or her and the notice or paper is served upon him or her by mail, three days shall be added to the prescribed period.
Neb. Rev. Stat. Ann. § 25-534 (Michie 1995) (emphasis supplied). The petitioner contends that because he was notified of the district court's September 8 order by mail, the above provision added three days to the ten-day time period he had in which to move for new trial. See id. § 25-1143 (Michie 1995). Thus, the petitioner concludes, the deadline for filing his motion for new trial was September 21, 1998, and his motion was therefore timely.
I disagree. Section 25-534's three-day extension is triggered where a party has the right to take some proceedings "within a prescribed period after the service of a notice or other paper upon him or her and the notice or paper is served upon him or her by mail." Id. at § 25-534 (Michie 1995) (emphasis supplied). Here, however, the petitioner had the right to move for a new trial "within ten days . . . after the . . . [September 8, 1998] decision was rendered . . .," as opposed to within ten days after service of a notice regarding the decision. Compare id. § 25-1143 (Michie 1995), with id. § 25-821 (Michie 1995) ("The answer or demurrer of the defendant shall be filed within thirty days after service of the summons and petition or completion of service by publication." (emphasis supplied)), and Neb. R. Discov. Rule 36 (providing that with respect to requests for admissions, "[t]he matter is admitted unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter . . ." (emphasis supplied)); see also Neb. Rev. Stat. Ann. § 24-734 (Michie 1995) ("Within three working days after the rendition of any civil judgment . . . the clerk of the court shall send a postcard or notice by United States mail to each party . . . and state the date of rendition of such judgment."). In short, § 25-1143 is simply not a statute where the running of the prescribed time limitation is tied to "service of a notice or other paper." See id. § 25-534 (Michie 1995). It was therefore not surprising that my review of the relevant case law uncovered no authority indicating that Nebraska courts apply § 25-534's three-day extension to motions for new trial. Thus, I am convinced that the Nebraska Court of Appeals decision was not "novel" or "unexpected" in that it "ignored" § 25-534. The petitioner's adequacy argument must therefore fail, to the extent that it is based on the applicability of this provision.
This provision was eliminated from the Code, effective August 28, 1999. See Neb. Rev. Stat. Ann. § 24-734 (Lexis Supp. 2000).
Finally, the petitioner contends that his motion for new trial was timely filed, and the Nebraska Court of Appeals' decision was therefore "unexpected," based on § 49-1201 of the Nebraska Code. This provision provides as follows:
Any report, claim, tax return, statement, or any payment required or authorized to be filed or made to the State of Nebraska, or to any political subdivision thereof, which is: (1) Transmitted through the United States mail . . . shall be deemed filed or made and received on the date it was mailed if the sender establishes by competent evidence that the report, claim, tax return, statement or payment was deposited in the United States mail on or before the date for filing or paying.
Neb. Rev. Stat. Ann. § 49-1201 (Michie 1995). In applying this provision, the petitioner contends that his motion for new trial was deemed "filed" on September 17, 1998, the date he deposited it in the United States mail system. Thus, the petitioner concludes, his motion for new trial was timely, as it was filed within ten days after the September 8 order dismissing his post-conviction motion, and it effectively tolled the running of the statutory time limit for filing an appeal.
I disagree. The petitioner's motion does not seem to fit within the categories specifically enumerated in § 49-1201, as it not easily characterized as a "report, claim, tax return, statement, or payment." Id. In addition, I have found no cases indicating that the Nebraska courts apply this provision in the context of motions for new trial. Thus, there was no reason for the petitioner to anticipate that § 49-1201 would apply and that his motion would therefore be deemed "filed" on September 17. See Forgy, 64 F.3d at 402 (concluding that federal review was not barred where the petitioner "could not have anticipated that the Arkansas Supreme Court would refuse to consider his inadequate-notice claim. . . ."). Accordingly, the petitioner's adequacy argument must fail, to the extent he asserts that the Nebraska Court of Appeals "ignored" § 49-1201.
As noted above, the petitioner also claims that Nebraska Court of Appeals' decision dismissing his post-conviction appeal was "dependent, not independent, of the federal constitutional question." Petitioner's Brief at 4. This contention, however, is without merit. State grounds for a decision are "independent" when they are not premised upon an antecedent determination of federal law. See Ake v. Oklahoma, 470 U.S. 68, 75 (1985). Thus, "when resolution of the state procedural law question depends on a federal constitutional ruling, the state-law prong of the court's holding is not independent of federal law," and a federal habeas court may review the petitioner's claim. Id. Here, the Nebraska Court of Appeals' dismissal for lack of jurisdiction "fairly appears" to have rested wholly on state procedural law. See Coleman, 501 U.S. at 740. The appellate court did not mention federal law in its dismissal, and there is no indication that the procedural rules on which it relied were linked to, or dependent upon, federal constitutional law. Accordingly, the petitioner's dependence argument must fail.
Finally, the petitioner asserts that the "adequate and independent state ground" doctrine does not bar federal review because the Nebraska Court of Appeals based its dismissal on a procedural rule that "was not . . . strictly or regularly enforced." Petitioner's Brief at 4. In support of his claim, the petitioner refers me to Eighth Circuit authority providing that "[a] claim that is procedurally defaulted under state law . . . is barred from federal review only if the state procedural rule is both (1) firmly established and (2) regularly followed." Oxford, 59 F.3d at 744 (citations omitted); see also Wyldes v. Hundley, 69 F.3d 247, 252 (8th Cir. 1995), cert. denied, 517 U.S. 1172 (1996) ("It is axiomatic that we may not review state prisoners' habeas claims dismissed by state courts on `independent and adequate state law grounds.' . . . This important precept applies, however, only when the state procedural rule is both 1) firmly established and 2) regularly followed." (citation omitted)). Here, there is no question that the ten-day filing requirement of § 25-1143 was "firmly established." The statutory source notes indicate that this provision had been in existence for several years prior to the petitioner's post-conviction appeal. See § 25-1143 (Michie 1995); see also Wyldes, 69 F.3d at 252 ("The Iowa legislature enacted § 822.8 in 1970, and there is little question that the rule was firmly established at the time of Wylde's postconviction appeal."). Furthermore, there is no indication that Nebraska courts have failed to enforce the ten-day statutory deadline. To the contrary, a review of the relevant case laws reveals that Nebraska appellate courts have consistently adhered to this requirement. See, e.g., Manske, 518 N.W.2d at 146-47 (finding that motion for new trial filed one day after the expiration of ten-day statutory period was ineffectual, did not toll the time for perfection of appeal, and did not extend or suspend the time limit for filing a notice of appeal); Zoet v. Zoet, 507 N.W.2d 42, 44 (Neb.Ct.App. 1993) (noting that because the appellee's motion for new trial was not filed in conformance with § 25-1143's timing requirement, the motion itself, as well as the trial court's ruling on such motion, were nullities); Metrejean, 481 N.W.2d at 178 (concluding that the motion for new trial, filed after the expiration of the ten-day statutory period, was ineffectual, did not toll the time for perfection of appeal, and did not extend the time limit for filing a notice of appeal); In re interest of B.M.H., 446 N.W.2d 222, 224 (Neb. 1989) (same); In re interest of C.M.H., 418 N.W.2d 226, 228 (Neb. 1988) (providing that an untimely motion for new trial is a nullity and does not extend the statutory time for appeal); Smith v. Smith, 402 N.W.2d 688, 689 (Neb. 1987) (finding that where appellant's motion for new trial was filed seventeen days after the rendition of the divorce decree, and her notice of appeal was filed more than two months after the decree was rendered, the court did not have jurisdiction over her appeal); Wells v. Bartholomew, 369 N.W.2d 62, 63 (Neb. 1985) (stating that where a motion for new trial was not timely filed, the time for appeal began to run "from the rendition of the [challenged] judgment"); Corell v. Corell, 266 N.W.2d 84, 85-86 (Neb. 1978) (recognizing that an untimely motion for new trial does not extend the statutory time for filing a notice of appeal); Rickets v. Continental Nat'l Bank, 101 N.W.2d 153, 156-57 (Neb. 1960) (recognizing that a motion for new trial filed more than ten days after the challenged decision was rendered is untimely and does not extend the time for appeal); Pallis v. Dailey, 99 N.W.2d 6, 7 (Neb. 1959) (same); Molczyk v. Molczyk, 47 N.W.2d 405, 407 (Neb. 1951) (same). Accordingly, the petitioner's "adequacy" argument must fail, to the extent it is based on his claim that Nebraska courts have failed to apply the ten-day filing requirement of § 25-1143 in a consistent manner.
Based on the discussion above, it appears to me that the petitioner has procedurally defaulted his first three claims for relief. The petitioner apparently raised these same claims before the District Court of Lancaster County in a motion for post-conviction relief. See Petition at 3, ¶ 13(a)(3), filing 1. The district court denied the petitioner's motion, and the Nebraska Court of Appeals dismissed the petitioner's subsequent appeal for lack of jurisdiction. The Nebraska Supreme Court then overruled the petitioner's Petition for Further Review without opinion. The decision of the court of appeals clearly rested on a state law ground that was both independent of federal law and adequate to support the dismissal. See Coleman, 501 U.S. at 729. In addition, there is no indication in any of the materials submitted by the petitioner that he can demonstrate "cause" for his procedural default. See id. at 750 (noting that a petitioner's procedural default may be excused if the petitioner can show "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" (citation omitted)); McCleskey v. Zant, 499 U.S. 467, 493-94 (1991) (defining "cause" as "some objective factor external to the defense" that impedes counsel's efforts to comply with the applicable procedural rule); id. at 494 (stating that objective factors constituting cause include (1) "`interference by officials' that makes compliance with the State's procedural rule impracticable"; (2) "`a showing that the factual or legal basis for a claim was not reasonably available to counsel'"; and (3) constitutionally ineffective assistance of counsel (citations omitted)); Ivy, 173 F.3d at 1140 ("At a minimum, however, [the petitioner] must show that `something external to [him], something that cannot fairly be attributed to him,' caused the procedural default." (emphasis in original) (citations omitted)); see also Vasquez v. Lockhart, 867 F.2d 1056, 1058 (8th Cir. 1988), cert. denied, 490 U.S. 1100 (1989) (concluding that petitioner's pro se status and lack of familiarity with the American language and court system did not constitute cause). Nor has the petitioner submitted any argument that this court's failure to consider his defaulted claims will result in a "fundamental miscarriage of justice." See Coleman, 501 U.S. at 750; McCleskey, 499 U.S. at 494 (explaining that the "fundamental miscarriage of justice" standard is implicated in those "extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime" (citation omitted)). I therefore find that the petitioner's first three grounds for relief must be dismissed.
E. Petitioner's Fourth and Sixth Objections
The petitioner's fourth and sixth objections appear to be based on the following language from the magistrate judge's Report and Recommendation: "Petitioner makes reference to a `hearing' on the postconviction motion in Lancaster County District Court. He does not allege that it was an evidentiary hearing under the state postconviction law." Report and Recommendation at 9, n. 1, filing 5. According to the petitioner, the magistrate judge erred in (1) failing to construe the word "hearing" as meaning an "evidentiary hearing," and (2) failing to recommend that the petitioner be given leave to file an amended petition to correct the technical defect of using the word "hearing" rather than the words "evidentiary hearing."
Specifically, in support of his fourth objection, the petitioner alleges that "state court procedures for an appeal were not strictly and consistently followed by the courts" in that "the Bill of Exceptions was never produced as requested." Petitioner's Brief at 8. Thus, according to the petitioner, the failure to follow required procedures permitted the appellate courts "to evade having to rule upon the merits of the Petitioner's claims." Id. at 11; see also id. at 8 ("It seems that every time a defendant raises a valid constitutional claim that the state courts want to evade, they fail to follow their own rules, thus achieving a `lack of jurisdiction' over the uncomfortable or embarrassing claims."). I disagree. As discussed above, the Nebraska Court of Appeals' decision dismissing the petitioner's post-conviction appeal was based on an independent and adequate state procedural bar. See supra Part IV.D. I therefore find no merit to the petitioner's contention regarding the alleged absence of a Bill of Exceptions.
Finally, the petitioner's remaining arguments supporting his fourth and sixth objections appear to be tied to the petitioner's claim that the magistrate judge improperly presented a new theory, not relied upon by the Nebraska Court of Appeals, as to why the appellate court did not have jurisdiction over the petitioner's post-conviction appeal. Because I have already determined that the magistrate judge erred in relying on State v. Plymate, 598 N.W.2d (Neb.Ct.App. 1999) , there is no need to address these arguments. Accordingly, for the reasons outlined above, the petitioner's fourth and sixth objections will be denied.
F. Petitioner's Fourth Ground for Relief
In his fourth ground for relief, the petitioner claims that the Nebraska appellate courts denied his due process rights, his equal protection rights, and his First Amendment right to access to the courts by "refus[ing] to recognize the statutory extension for the filing deadline, the statutory definition of `filed and received,' or the `prison mailbox rule'. . . ." Petition at 12, ¶ 7, filing 1. As discussed above, I construed this ground as a challenge to the independence and adequacy of the state law ground underlying the Nebraska Court of Appeals' decision dismissing the petitioner's appeal. To the extent that this ground also alleges separate claims for relief, it must be dismissed.
The Eighth Circuit has repeatedly recognized that "[b]ecause there is no federal constitutional requirement that states provide a means of post-conviction review of state convictions, an infirmity in a state post-conviction proceeding does not raise a constitutional issue cognizable in a federal habeas petition." Williams-Bey v. Trickey, 894 F.2d 314, 317 (8th Cir. 1990), cert. denied, 495 U.S. 936 (1990) (citing Williams v. State of Missouri, 640 F.2d 140, 143 (8th Cir. 1981), cert. denied, 451 U.S. 990 (1981)); see Gee v. Groose, 110 F.3d 1346, 1351-52 (8th Cir. 1997); Jolly v. Gammon, 28 F.3d 51, 54 (8th Cir. 1994), cert. denied, 513 U.S. 983 (1994); Smith v. Lockhart, 882 F.2d 331, 334-35 (8th Cir. 1989), cert. denied, 493 U.S. 1028 (1990); Noble v. Sigler, 351 F.2d 673, 678 (8th Cir. 1965), cert. denied, 385 U.S. 853 (1966). Here, the petitioner's due process, equal protection, and First Amendment claims represent an attack on a proceeding collateral to his conviction and detention, not on the detention itself, and are therefore not cognizable in a § 2254 petition. Accordingly, the petitioner's fourth ground for relief must fail, insofar as it alleges independent claims for habeas relief.
IT IS ORDERED that the petitioner's Statement of Objections To Magistrate Judge's Report and Recommendation, filing 8, is denied, except that it is granted insofar as it is based on claims that (1) the recommendation included a typographical error, and (2) the magistrate judge presented a new theory, not relied upon by the Nebraska Court of Appeals, as to why the appellate court lacked jurisdiction over the petitioner's post-conviction appeal;
IT IS FURTHER ORDERED that the petitioner's Petition for Writ of Habeas Corpus, filing 1, is dismissed with prejudice.
JUDGMENT
In accordance with the Memorandum and Order on Objections to the Magistrate Judge's Report and Recommendation:
IT IS ORDERED that judgment be entered for the respondent and against the petitioner.