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Ruegge v. Hansen

United States District Court, D. Nebraska

August 30, 2016

LARRY LEE RUEGGE, Petitioner,
v.
BRAD HANSEN, Warden, and SCOTT FRAKES, Director, Respondents.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         Larry Lee Ruegge, sentenced as a habitual offender, has filed another habeas corpus petition attacking his conviction in a second case.[1] Because the petition comes too late, and also because the sole[2] claim that Ruegge's trial counsel[3] was ineffective (for failing to use a police report) is procedurally defaulted as it was never presented to the Nebraska Supreme Court on the direct appeal by separate appellate counsel, the petition will be denied and dismissed with prejudice.

         Facts

         1. Petitioner was convicted by a jury in the District Court of Holt County, Nebraska, of theft by receiving stolen property. (Filing No. 7-3 at CM/ECF p. 4.)

         2. The state district court found Ruegge to be a habitual criminal and sentenced him to 10 years in prison. (Id.)

         3. Ruegge filed a direct appeal through new counsel. (Filing No. 7-3); State v. Ruegge, 837 N.W.2d 593 (Neb.App. 2013). Ruegge raised numerous claims on appeal, including that his trial counsel was ineffective for (1) failing to make a timely motion for mistrial, (2) failing to object to alleged instances of prosecutorial misconduct, (3) waiving argument in support of the directed verdict motion, and (4) failing to present a defense. (Filing No. 7-3 at CM/ECF pp. 13-16.)

         4. On September 10, 2013, the Nebraska Court of Appeals affirmed Ruegge's conviction and sentence on direct appeal in a published opinion. (Filing No. 7-3); State v. Ruegge, 837 N.W.2d 593 (Neb.App. 2013). Ruegge did not petition the Nebraska Supreme Court for further review. (Filing No. 7-1 at CM/ECF p. 3.)

         5. On August 11, 2014, Ruegge filed a motion for postconviction relief in the state district court. (Filing No. 7-4 at CM/ECF p. 1.) The state district court denied postconviction relief in an extensive opinion. (Id. at CM/ECF pp. 8-15.)

         6. On December 11, 2015, the Nebraska Court of Appeals affirmed the state district court's judgment without a written opinion. (Filing No. 7-2 at CM/ECF p. 2.) Ruegge petitioned the Nebraska Supreme Court for further review, which was denied on February 4, 2016. (Id.) The mandate was issued on February 18, 2016. (Id.)

         7. Ruegge's habeas petition was filed on April 28, 2016. (Filing No. 1.)

         Statute of Limitations

         The one year statute of limitations (28 U.S.C. § 2241(d)(1)(A)) ran before the petition was filed on April 28, 2016. That is, 374 days passed by the time Ruegge filed his petition in this case. (305 plus 69=374.) A brief explanation follows.

         Because Ruegge did not seek further review of the Nebraska Court of Appeals decision in the Nebraska Supreme Court, the clock began to tick 30 days after the Court of Appeals ruled-that is, the clock started on October 10, 2013. See Gonzalez v. Thaler, 132 S.Ct. 641 (2012) (limitations period for habeas petition under AEDPA commenced when the time for seeking discretionary review in state's highest court expired); Neb. Ct. R. App. § 2-102(F)(1) (stating that a petition for further review must be filed within 30 days after release).

         Ruegge filed his state post-conviction action on August 11, 2014. By that time, no less than 305 days ...


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