United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
Lee Ruegge, sentenced as a habitual offender, has filed
another habeas corpus petition attacking his conviction in a
second case. Because the petition comes too late, and
also because the sole claim that Ruegge's trial
counsel 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.
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.)
state district court found Ruegge to be a habitual criminal
and sentenced him to 10 years in prison. (Id.)
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.)
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.)
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.)
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.)
Ruegge's habeas petition was filed on April 28, 2016.
(Filing No. 1.)
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.
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).
filed his state post-conviction action on August 11, 2014. By
that time, no less than 305 days ...