United States District Court, D. Nebraska
JOSEPH A. STOLTENBERG, Petitioner,
BARBARA LEWIEN, Respondent.
MEMORANDUM AND ORDER
LAURIE SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE.
This matter is before the Court on Petitioner Joseph Stoltenberg’s (“Stoltenberg”) Petition for Writ of Habeas Corpus (“petition”). For the reasons that follow, the Court will dismiss the petition with prejudice and deny a certificate of appealability.
Stoltenberg pled no-contest to two counts of theft by unlawful taking on April 8, 2009, in the District Court of Lancaster County, Nebraska (“state district court”). (Filing No. 1 at ECF 1.) In exchange for Stoltenberg’s plea, the State of Nebraska agreed not to file a habitual-criminal charge against him. (Filing No. 16-2 at ECF 18.) The state district court sentenced Stoltenberg to two consecutive sentences of not less than six nor more than ten years’ imprisonment. (Filing No. 16-1 at ECF 21-22.)
Stoltenberg appealed to the Nebraska Court of Appeals, arguing only that the sentence imposed by the state district court was excessive. (Filing No. 16-1 at ECF 33-46.) The Nebraska Court of Appeals denied relief on October 20, 2009, and the Nebraska Supreme Court denied a petition for further review on December 10, 2009. (Filing No. 7-1 at ECF 2.) Stoltenberg did not file a postconviction action.
Stoltenberg filed his petition (Filing No. 1) in this Court on October 6, 2014. He raised three claims. In Claim One, he argued his no-contest plea was not knowing and voluntary. In Claim Two he argued his lawyer was ineffective because she failed to raise the issue of his competency, advise him about all of his potential defenses, and failed to move to suppress prejudicial evidence. Finally, in Claim Three, he argued officials with the Nebraska Department of Correctional Services took his good-time credits in violation of the trial court’s sentencing order.
Respondent Barbara Lewien (“Respondent”) moved for summary judgment on January 23, 2015. (Filing No. 8.) She argued Stoltenberg’s habeas corpus petition was barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244. The Court denied the motion without prejudice to reassertion because it did not address Claim Three of the petition. (Filing No. 15.)
Respondent filed the relevant state court records (Filing No. 16), an Answer (Filing No. 17), and a Brief in support of her Answer (Filing No. 18) on April 21, 2015. She argued Claims One and Two are time barred and procedurally defaulted, and Claim Three is procedurally defaulted. Stoltenberg did not respond to Respondent’s Answer and Brief. (See Docket Sheet.)
II. 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 ...