Allee v. Nebraska Attorney General et al

MEMORANDUM AND ORDER that respondents' motion for summary judgment {{51}} is granted and petitioner's objection to the motion {{55}} is overruled; this case is dismissed and respondents are entitled to judgment as a matter of law; a separate judgment is entered in conjunction with this Memorandum and Order. Ordered by Chief Judge Joseph F. Bataillon.

District of Nebraska, ned-8:2005-cv-00229

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8:05-cv-00229-JFB-TDT Doc # 59 Filed: 12/17/08 Page 1 of 15 - Page ID # 253 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA JUSTIN J. ALLEE,)) 8:05CV229 Petitioner,)) v.)) MEMORANDUM AND ORDER NEBRASKA ATTORNEY GENERAL and) WARDEN OF USP-LEAVENWORTH,)) Respondents.)) This matter is before the court on respondents' motion for summary judgment, Filing No. 51, and petitioner's objection to the motion, Filing No. 55. Respondents argue that there are no material facts and they are entitled to judgment as a matter of law pursuant to Fed. R. Civ. P. 56(b). Justin Allee filed a habeas corpus action pursuant to 28 U.S.C. § 2254. Allee is currently serving a sentence for his September 2003 conviction in Douglas County District Court, Omaha, Nebraska, of second-degree murder and use of a weapon to commit a felony. On August 13, 2007, this court entered an order dismissing two of his § 2254 claims but granted a stay and abeyance to allow Allee to exhaust his remaining ineffective assistance of counsel claim in state court. Filing No. 39. Allee's post-conviction relief claims have now been denied by the state district court. Allee filed a motion to lift the stay. Filing No. 43. Respondents first contend that Allee has procedurally defaulted. Second, respondents argue that Allee is time barred. Third, respondents contend that Allee is not entitled to counsel on his state post-conviction claim. In this petition, Allee states "The district court, Hon. James T. Gleason on October 31, 2007, denied petitioner's application finding that 'the defendant has failed to set forth 8:05-cv-00229-JFB-TDT Doc # 59 Filed: 12/17/08 Page 2 of 15 - Page ID # 254 any facts, which, if proved, would constitute a denial or violation of his or her (sic) rights under the state or federal constitution.'" Filing No. 43. Allee admits that he did not appeal this October 31, 2007, order, but instead, he filed a motion for reconsideration. Allee contends that he did not receive a hearing on his initial motion, or on his motion for reconsideration. Upon denial of his motion for reconsideration, Allee appealed to the Nebraska Court of Appeals. The Nebraska Court of Appeals denied his appeal. Allee contends that he placed a notice of appeal for the Nebraska Supreme Court and a motion for an extension of time in the prison system on December 5, 2007. He alleges that he placed a second notice of appeal dated January 11, 2008, notifying the Nebraska Supreme Court that he had inadvertently sent the first notice of appeal to the Nebraska Federal District Court. He offers no evidence that this in fact occurred, such as a return envelope or a letter from the federal district court returning the appeal. The Clerk of the Douglas County District Court filed both of Allee's notices of appeal on January 25, 2008. On January 30, 2008, the Nebraska Supreme Court returned Allee's notice of appeal for failure to include a filing fee and/or an in forma paupers affidavit. In his amended habeas petition, Allee contends in a new claim that he is also entitled to counsel in his state post-conviction proceedings. Filing No. 47. DISCUSSION A. Right to Counsel Respondents contend that Allee's new claim regarding post-conviction counsel is without merit.1 This court agrees. There is no constitutional right to an attorney in a state 1 Allee does not address this new allegation in his brief in opposition to the m otion for sum m ary judgm ent. 2 8:05-cv-00229-JFB-TDT Doc # 59 Filed: 12/17/08 Page 3 of 15 - Page ID # 255 post-conviction proceeding. State v. Livingston, 244 Neb. 757, 762-63 (1993), citing Coleman v. Thompson, 501 U.S. 722 (1991). B. Exhaustion and Procedural Default A state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus. Picard v. Connor, 404 U.S. 270, 275 (1971). The exhaustion-of-state-remedies doctrine is now codified in the federal habeas statute. Id.; 28 U.S.C. § 2254 (b)(1). The doctrine "reflects a policy of federal-state comity, 'an accommodation of our federal system designed to give the State an initial 'opportunity to pass upon and correct' alleged violations of its prisoners' federal rights.'" Picard, 404 U.S. at 275 (quoting Wilwording v. Swenson, 404 U.S. 249, 250 (1971) (per curiam)). Once the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied. Id. (stating that "[o]nly if the state courts have had the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding does it make sense to speak of the exhaustion of state remedies"). "The question of exhaustion 'refers only to remedies still available at the time of the federal petition,' it requires federal courts to ask whether an applicant for federal relief could still get the relief he seeks in the state system." O'Sullivan v. Boerckel, 526 U.S. 838, 850 (Stevens, J., dissenting) (quoting Engle v. Isaac, 456 U.S. 107, 125-26 n.28 (1982)); see O'Sullivan, 526 U.S. at 848 (Court's opinion) (noting agreement with the dissent's description of the law of exhaustion and procedural default). If the applicant currently has a state avenue available for raising his claims, a federal court, in the interest of comity, must generally abstain from intervening. Id. at 850. "State-court remedies are described as having been 'exhausted' when they are no longer available, regardless of the reason 3 8:05-cv-00229-JFB-TDT Doc # 59 Filed: 12/17/08 Page 4 of 15 - Page ID # 256 for their unavailability," including a petitioner's failure "to comply with the deadline for seeking state-court review or for taking an appeal." Woodford v. Ngo, — U.S. —, —,126 S. Ct. 2378, 2387 (2006); see also Gray v. Netherland, 518 U.S. 152, 162-63 (1996). State petitioners 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, 526 U.S. at 845. Also, the petitioner must "fairly present" the "substance" of his federal habeas corpus claim to the state courts. Anderson v. Harless, 459 U.S. 4, 6 (1982). In order to fairly present a federal claim to the state courts, the petitioner must have referred to a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or a state case raising a pertinent federal constitutional issue in a claim before the state courts. Carney v. Fabian, 487 F.3d 1094, 1096 (8th Cir. 2007) (noting that state courts must be alerted to the fact that petitioners are asserting claims under the United States Constitution). As a general rule, federal courts are precluded from reviewing in § 2254 cases those claims which a petitioner has not yet presented to the state tribunals in the state of conviction. See 28 U.S.C. § 2254(b). Federal review of a habeas petition is barred when a state court dismisses or rejects a prisoner's claims on independent and adequate state grounds. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). Dismissal of a claim because of a state procedural rule may constitute an independent and adequate state ground only if the state procedural rule is firmly established, regularly followed, and readily ascertainable. See Ford v. Georgia, 498 U.S. 411, 423-24 (1991). The underlying principle is "that failure to follow state procedures will warrant withdrawal of a federal remedy only if those procedures provided the habeas petitioner with a fair opportunity to 4 8:05-cv-00229-JFB-TDT Doc # 59 Filed: 12/17/08 Page 5 of 15 - Page ID # 257 seek relief in state court." Easter v. Endell, 37 F.3d 1343, 1347 (8th Cir. 1994). A petitioner may pursue federal review of a procedurally defaulted claim if he can demonstrate cause and prejudice. See Coleman, 501 U.S. at 750. Ineffective assistance of appellate counsel may constitute cause and prejudice to excuse a procedural default. See Boysiewick v. Schriro, 179 F.3d 616, 619 (8th Cir. 1999). The procedural bar doctrine is a corollary to the habeas statute's exhaustion requirement. See Dretke v. Haley, 541 U.S. 386, 388 (2004) (stating that the concepts of exhaustion and procedural bar are related, but distinct, concepts). The procedural default doctrine is a separate waiver doctrine, crafted to protect the integrity of the exhaustion provision. See O'Sullivan, 526 U.S. at 853 (Stevens, J., dissenting); 848 (noting Supreme Court's agreement); Engle v. Isaac, 456 U.S. at 125-26 n.28 (1982) ("[T]he problem of waiver is separate from the question whether a state prisoner has exhausted state remedies."). Under the concept of procedural bar, the failure of a prisoner to invoke an available state procedure may provide the basis for the conclusion that he has waived a claim. O'Sullivan, 526 U.S. at 853. This failure to comply with the state's procedural rules can furnish an independent and adequate state ground of decision that will block federal collateral review. See Harris v. Reed, 489 U.S. 255, 262 (1989); Coleman, 501 U.S. at 729-30 (stating that the procedural bar doctrine operates to bar federal habeas corpus review when a state court declines to address a petitioner's federal claims because the prisoner has failed to meet a state procedural requirement—"[i]n these cases, the state judgment rests on independent and adequate state procedural grounds"). 5 8:05-cv-00229-JFB-TDT Doc # 59 Filed: 12/17/08 Page 6 of 15 - Page ID # 258 A state procedural rule is "independent" if it is not linked to or dependent on federal law. Easter v. Endell, 37 F.3d 1343, 1345 (8th Cir. 1994). A state procedural ruling meets the due process requirement of adequacy only if it is firmly established and regularly followed. Lee v. Kemna, 534 U.S. 362, 376 (2002) ("[t]o be adequate, a state's procedural rule must be proclaimed in advance and regularly followed"); Ford, 498 U.S. at 424 (noting that a court will decline to apply a procedural rule when a defendant could not be deemed to know of its existence); Easter, 37 F.3d at 1345. The "adequate and independent" state law ground applies with equal force whether the state law ground is substantive or procedural. Lee v. Kemna, 534 U.S. at 375. Also, "there are, however, exceptional cases, in which the exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question." Id. at 376 (finding the ordinarily "unassailable" procedural rule requiring a contemporaneous objection was inadequate to bar consideration of a defendant's due process claim in a case involving an "unusual sequence of events" that included the state's belated reliance on the rule and a lack of caselaw that required "flawless compliance" with the rule). "'[T]he adequacy of state procedural bars to the assertion of federal questions,' is not within the state's prerogative finally to decide; rather, adequacy 'is itself a federal question.'" Id. at 375 (quoting Douglas v. Alabama, 380 U.S. 415, 422 (1965)). "'[F]ailure to follow state procedures will warrant withdrawal of a federal remedy only if those procedures provided the habeas petitioner with a fair opportunity to seek relief in state court.'" Easter v. Endell, 37 F.3d at 1347 (quoting Harmon v. Ryan, 959 F.2d 1457, 1461 (9th Cir. 1992)). 6 8:05-cv-00229-JFB-TDT Doc # 59 Filed: 12/17/08 Page 7 of 15 - Page ID # 259 An adequate and independent state procedural disposition, however, provides only a strong prudential reason not to address a defaulted constitutional claim that is presented for federal habeas review. Dretke, 541 U.S. at 392-93. A procedural default can be excused in certain circumstances where the factual predicate of the claim has been presented to a post-conviction court and the petitioner has made an effort to bring it to the attention of appropriate state courts. Clemmons v. Delo, 124 F.3d 944, 946 n.1, 948-50 (8th Cir. 1997); Easter v. Endell, 37 F.3d at