Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rush v. Thurber

United States District Court, Eighth Circuit

August 27, 2013

CLIFFORD RUSH, Petitioner,
v.
MICHAEL THURBER, Respondent.

MEMORANDUM AND ORDER

LAURIE SMITH CAMP, Chief District Judge.

This matter is before the court on Respondent's Motion for Summary Judgment. (Filing No. 7.) Petitioner Clifford Rush ("Rush") did not submit a response to the Motion. ( See Docket Sheet.) As set forth below, the Motion for Summary Judgment is granted.

I. BACKGROUND

Rush filed his Petition for Writ of Habeas Corpus ("Petition") in this matter on December 19, 2012. (Filing No. 1.) On initial review, the court liberally construed the Petition to allege two claims:

Claim One: Rush was denied the effective assistance of trial counsel in violation of the Sixth and Fourteenth Amendments because his trial counsel failed to appeal his conviction.
Claim Two: Rush was denied due process in violation of the Fourteenth Amendment because he was denied the right to appeal.

(Filing No. 5 at CM/ECF p. 1.)

On March 13, 2013, Respondent filed a Motion for Summary Judgment (Filing No. 7), Brief (Filing No. 9), and State Court Records (Filing No. 8) arguing, among other things, that the Petition is meritless because Rush's attorney filed a notice of appeal in his criminal case and his case is currently on appeal in state court. (Filing No. 9 at CM/ECF p. 3.) Rush did not respond. ( See Docket Sheet.)

II. UNDISPUTED FACTS

1. On December 17, 2012, Rush was sentenced, in Case No. CR12-399, to serve a prison term of 4 to 5 years for a third offense of driving under the influence, and 3 months for the offense of driving during revocation. (Filing No. 8-1 at CM/ECF pp. 3, 6.)

2. On December 19, 2012, Rush filed his Petition in this court, alleging that his attorney failed to appeal his conviction and that he was denied the right to appeal. (Filing No. 1.)

3. On January 14, 2013, Rush's attorney filed a timely notice of appeal in Case No. CR12-399, with the District Court for Lancaster County, Nebraska. (Filing No. 8-1 at CM/ECF pp. 6-7.)

4. On January 16, 2013, the Nebraska Court of Appeals acknowledged the receipt and filing of Rush's Notice of Appeal in Case ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.