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Chuol v. State

United States District Court, D. Nebraska

May 3, 2016

GAMAR G. CHUOL, Petitioner,
v.
STATE OF NEBRASKA, Respondent.

MEMORANDUM AND ORDER

Richard G. Kopf, Senior United States District Judge.

This matter is before the court on Respondent’s Motion for Summary Judgment (Filing No. 16). Respondent argues all of Petitioner’s habeas corpus claims are procedurally defaulted. The court agrees.

I. BACKGROUND

On April 2, 2012, Petitioner pled guilty to First Degree Assault and Use of a Deadly Weapon to Commit a Felony. (Filing No. 17-1 at CM/ECF pp. 1-2.) On July 20, 2012, Petitioner was sentenced by the state court to 30 to 40 years imprisonment for the assault charge, and 25 to 30 years imprisonment for the weapons charge. (Filing No. 17-3 at CM/ECF p. 7.)

Petitioner filed an appeal with the Nebraska Court of Appeals on August 1, 2012, arguing that his sentences were excessive. (Filing No. 17-4 at CM/ECF p. 6; Filing No. 17-1 at CM/ECF p. 7.) The Nebraska Court of Appeals summarily affirmed the judgment on January 9, 2013. (Filing No. 17-2 at CM/ECF p. 2.) Petitioner filed a petition for further review on February 4, 2013. (Filing No. 17-2 at CM/ECF p. 2.) The Nebraska Supreme Court denied the petition and the mandate issued on March 26, 2013. (Id.)

On January 28, 2014, Petitioner filed a motion for post-conviction relief in the state district court. (Filing No. 17-6 at CM/ECF pp. 1-7.) On March 10, 2014, the state court denied Petitioner’s motion without an evidentiary hearing. (Filing No. 17-6 at CM/ECF pp. 8-13.) On April 7, 2014, Petitioner appealed to the Nebraska Court of Appeals. (Filing No. 17-1 at CM/ECF p. 5.) The Court of Appeals affirmed the judgment in a memorandum and opinion on December 30, 2014. (Filing No. 17-5 at CM/ECF p. 2.) Petitioner did not file a petition for further review and the mandate issued on February 10, 2015. (Id.)

Petitioner filed a Petition for Writ of Habeas Corpus in this court on April 8, 2015. (Filing No. 1.) An Amended Petition was filed on August 20, 2015. (Filing No. 6.)

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 ...

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