United States District Court, D. Nebraska
ROY L. ELLIS, Petitioner,
BRAD HANSEN, Warden, Respondent.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
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.
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, 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
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.)
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,
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.)
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.)
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).
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 ...