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McPherson v. Frakes

United States District Court, D. Nebraska

February 25, 2016

ROGER MCPHERSON, Petitioner,
v.
SCOTT R. FRAKES, and MICHAEL L. KENNEY, Respondents.

MEMORANDUM AND ORDER

Richard G. Kopf Senior United States District Judge

In 2001, McPherson was found guilty of sexually assaulting his two daughters who were then ages 12 and 11 and he was also found guilty of child abuse respecting the children. The girls both testified against him.

Over a decade too late, he filed his § 2254 habeas corpus petition. I now dismiss it with prejudice. Briefly, the reasons for my decision that the relevant statute of limitations has run are set forth below.

BACKGROUND

Respondents have moved for summary judgment. The matter has been fully briefed and the record has been supplied by Respondents. I find that the following facts to be undisputed:

1. On November 16, 2001, in the District Court of Lancaster County, Nebraska, a jury found Petitioner Roger McPherson guilty of two counts of first degree sexual assault on a child and two counts of child abuse. (Filing No. 7-3 at CM/ECF pp. 1-4.)

2. On January 24, 2002, the state district court sentenced McPherson to 25 to 40 years in prison for each count of sexual assault and 5 years in prison for each count of child abuse. (Id. at CM/ECF pp. 5-7.)

3. On September 12, 2003, the Nebraska Supreme Court affirmed McPherson’s convictions and sentences. (Filing No. 7-1 at CM/ECF p. 3.)

4. On September 14, 2005, McPherson filed a motion for postconviction relief in the state district court. (Filing No. 7-4 at CM/ECF p. 1.) After dismissing the majority of the claims without an evidentiary hearing, a hearing was ordered on one of the claims raised in the postconviction motion. (Id. at CM/ECF pp. 8-10.) On January 11, 2007, the district court denied postconviction relief on the remaining claim following an evidentiary hearing. (Id. at CM/ECF pp. 11-15.) McPherson did not appeal the district court’s judgment. (Filing No. 7-5 at CM/ECF p. 7.)

5. On September 5, 2013, McPherson filed a second motion for postconviction relief, and an amended postconviction motion was later filed. (Filing No. 7-4 at CM/ECF pp. 16, 43.) The state district court dismissed McPherson’s second postconviction motion as untimely filed under Neb. Rev. Stat. § 29-3001(4)(a)-(e) (Cum. Supp. 2012). (Filing No. 7-4 at CM/ECF pp. 77-80.)

6. On June 23, 2014, the Nebraska Court of Appeals affirmed the state district court’s judgment by sustaining the State’s motion for summary affirmance. (Filing No. 7-2 at CM/ECF p. 2.)

7. On July 24, 2014, the Nebraska Supreme Court denied McPherson’s petition for further review. (Id.)

8. McPherson’s habeas petition was filed with this Court on May 4, 2015. (Filing No. 1.)

9. His wife was also convicted of one count of aiding and abetting first degree sexual assault on a child and two counts of child abuse, and she was sentenced to 12 to 20 years’ imprisonment. ...


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