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Ellis v. Hansen

United States District Court, D. Nebraska

September 6, 2017

ROY L. ELLIS, Petitioner,
v.
BRAD HANSEN, Warden, Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         Roy L. Ellis (Ellis or Petitioner) has filed a petition for writ of habeas corpus attacking his 2007 conviction and sentence for tampering with a witness (Antoinette Pollack). He was found to be a habitual offender and sentenced to 60 years in prison. This petition does not attack his separate conviction, and death sentence, for the murder of Amber Harris. See State v. Ellis, 799 N.W.2d 267 (Neb. 2011) (affirming conviction and death penalty), cert. denied 565 U.S. 967 (2011). I will deny the petition with prejudice. Briefly, I next describe why I do so.

         Background

         As Respondent points out in a thoughtful brief and answer, supported by an evidence index, there are numerous reasons why this petition must be dismissed with prejudice. While I agree with those numerous arguments, in the interests of judicial economy and timeliness[1], I limit my discussion to the one reason that stands out above all the rest. Ellis' federal petition was way too late and there are no excuses available to him.

         Ellis was sentenced as a habitual criminal after pleading “no contest” to tampering with a witness. Among other cautions, advisements and inquiries, the judge carefully explained to Ellis that a “no contest” plea was the same as a guilty plea for sentencing purposes, that his sentence could be enhanced up to 60 years in prison, and that, if so enhanced, Ellis would not receive a reduction for good time. (Filing no. 15-13, at CM/ECF pp. 28-42.) The record reveals a very extensive factual basis for the plea with no disagreement by Ellis or his counsel. (Id. at CM/ECF pp. 36-41.)

         On April 10, 2007, Ellis received a sentence of 60 years. (Filing no. 15-10 at CM/ECF p. 38.) Ellis took a direct appeal to the Nebraska Court of Appeals. The Nebraska Court of Appeals summarily affirmed the conviction and sentence on October 15, 2007. (Filing no. 15-1 at CM/ECF p. 2.) Ellis did not petition the Nebraska Supreme Court for further review and the mandate issued on November 20, 2007. (Id.)

         Ellis waited until October 27, 2011, to file a petition for post-conviction relief. (Filing no. 15-11 at CM/ECF pp. 47-104.) He supplemented that petition several times. On February 26, 2016 (filed on February 29, 2016), the state trial judge denied Ellis post-conviction relief. (Filing no. 15-11at CM/ECF pp. 95-104.) Ellis appealed, the Nebraska Supreme Court took the matter from the Nebraska Court of Appeals, and summarily affirmed the denial of post-conviction relief on November 16, 2016. (Filing no. 15-2 at CM/ECF p. 1.) The mandate issued on December 14, 2016. (Id.)

         Ellis filed his federal petition on December 16, 2016. (Filing no. 1.) Upon initial review, I denied the petition without prejudice on January 5, 2017. (Filing no. 7.) But I gave Petitioner leave to file an amended petition. Ellis filed an amended petition on January 23, 2017. (Filing no. 8.) On February 28, 2017, I found the following claims to be potentially cognizable and dismissed without prejudice any others:

Claim One: Counsel on direct appeal was ineffective for failing to seek further review by the Nebraska Supreme Court of the denial of the direct appeal by the Court of Appeals.
Claim Two: Petitioner was denied due process of law by the trial court because (1) Petitioner was not properly informed that his “no contest” plea could result in an enhanced sentence as a habitual offender, and (b) the trial judge referred to, and improperly relied upon, a pending and, in any event unrelated, murder and rape charge of a child brought against Petitioner as a basis for sentencing.

(Filing no. 10.)

         Analysis

         Ellis' petition is barred by the limitations period of one year set forth in 28 U.S.C. § 2244(d). For a state prisoner like Ellis who does not seek review in a state's highest court, the judgment becomes “final, ” within the meaning of the Antiterrorism and Effective Death Penalty Act's (AEDPA) statute of limitations for habeas petitions, on the date that the time for seeking such review expires. See, e.g., King v. Hobbs, 666 F.3d 1132, 1135 (8th Cir. 2012); Riddle v. Kemna, 523 F.3d 850, 855 (8th Cir. 2008), abrogated in part by Gonzalez v. Thaler, 565 U.S. 134 (2012).

         Giving Ellis the benefit of the doubt, the clock began to run no later than when the mandate of the Nebraska Court of Appeals, regarding the direct appeal, issued on November 20, 2007. Ellis did nothing to pursue any remedy until October 27, 2011, when he filed a petition for state post-conviction relief. The time between those two dates is 1, 437 days from the start date to the end date but not including ...


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