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Ruegge v. Gage

United States District Court, D. Nebraska

February 29, 2016

LARRY RUEGGE, Petitioner,
v.
BRIAN GAGE, Respondent.

MEMORANDUM AND ORDER

Richard G. Kopf Senior United States District Judge.

Larry Ruegge (Ruegge) is a habitual offender. Summarized and condensed, he brings this § 2254 habeas petition attacking counsel’s representation on direct appeal. He claims that the appellate lawyer failed to attack Ruegge’s trial counsel for not calling another lawyer as a witness. That lawyer had interviewed a critical witness who was cooperating with the State against Ruegge. I will deny the motion with prejudice and dismiss it. Briefly, the reasons for my decision are set forth below.

BACKGROUND

The burglary charge against Ruegge stems from an incident that occurred in October 2010. Evidence adduced at trial revealed that in the early morning hours of October 28, 2010, the office of Sandy View Nursery, a “swine nursery” was burglarized. The office door was pried open such that the side of the door was splintered and the metal pieces around the door’s knob were “smashed in.” When an employee of the nursery arrived to work that morning, she observed that there were multiple items missing from the office, including a toolbox with numerous tools inside, a nightlight, some batteries, and a case of soda.

The identity of the burglar or burglars was disputed at trial. The State presented evidence that Ruegge burglarized the nursery office along with one of his acquaintances, Collin O’Connell. The State’s key piece of evidence to tie Ruegge to the burglary was the testimony of O’Connell. O’Connell had been given immunity for his testimony. In fact, O’Connell agreed to an immunity deal where he would tell the police about a number of unsolved burglaries not only the burglary at issue in this case. The jury was aware of the immunity deal.

As is pertinent to Ruegge’s claim, trial counsel (Mr. Brewster) subjected O’Connell to a withering cross-examination. For example, he got O’Connell to admit that he had spoken with another attorney representing Ruegge (Mr. Hoffman). Specifically, Brewster got O’Connell to admit the following regarding his conversation with Mr. Hoffman:

Q. And you told Mr. Hoffman that everything you told the police was a lie, didn’t you?
A. Yes.
Q. And you told him that Mr. Ruegge didn’t have anything to do, as far as you knew, with Sandy View Farms; is that right?
A. Yes.
Q. And you told him that you had agreed to testify against Mr. Ruegge and then you agreed to convict him; isn’t that right?
A. Yes.

(Filing no. 12-3 at CM/ECF pp. 31-32.)

The prosecutor came back aggressively. On redirect, O’Connell testified this way:

Q. (BY M R. HERZOG) Actually, there’s nothing that you ever told the police that was a lie, is there, in any of the statements that you gave to Deputy Parks when you were ...

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