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Engstrom v. Frakes

United States District Court, D. Nebraska

September 8, 2017

MICHAEL ENGSTROM, Petitioner,
v.
SCOTT R. FRAKES, Respondent. MICHAEL ENGSTROM, Petitioner,
v.
SCOTT R. FRAKES, Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge

         Michael Engstrom (Engstrom or Petitioner) has filed one habeas corpus petition attacking the related convictions and sentences handed down in Johnson County, Nebraska, and Pawnee County, Nebraska, by the same trial judge.[1] The Respondent has moved for summary judgment primarily on the grounds that the petition is untimely. Petitioner has not responded. The motion for summary judgment will be granted. I next briefly explain my reasoning.

         Background

         In two separate but related cases (one filed in the District Court for Johnson County and one filed in the District Court for Pawnee County), Engstrom pled no contest to multiple felonies. Essentially, Engstrom robbed a store in Pawnee County, the police gave chase and the chase ended in Johnson County.

         He was sentenced in both cases on January 13, 2014. He took a direct appeal in both cases. The Nebraska Court of Appeals summarily affirmed the convictions and sentences and the mandate in the Johnson County case was issued on October 1, 2014, and the mandate for the Pawnee County case was issued on October 21, 2014. Engstrom did not seek further review by the Nebraska Supreme Court.

         Engstrom filed a motion for post-conviction relief in the District Court of Johnson County, Nebraska, on November 23, 2015. The next day, November 24, 2015, he filed a motion for post-conviction relief in the District Court of Pawnee County, Nebraska.

         The district judge dismissed the post-conviction actions as untimely under the provisions of Neb. Rev. Stat. § 29-3001 (West 2016), a one-year statute of limitations. Essentially, the judge ruled that more than a year passed after the date of the issuance of the mandates in Engstrom's direct appeals. On February 14, 2017, the Nebraska Court of Appeals affirmed the dismissals agreeing with the district judge.

         Engstrom sought further review in each post-conviction case, but his requests were denied. The mandates issued on May 3, 2017. This case was filed on May 15, 2017.

         After initial review, I found the following claims might be cognizable:

Claim One: Petitioner was denied the effective assistance of counsel because trial counsel allowed Petitioner to enter a guilty plea and be sentenced without a mental evaluation and while the Petitioner was on heavy medication.
Claim Two: Petitioner was denied due process of law when the state post-conviction courts denied him relief based upon the alleged fact that the petition for post-conviction action was untimely, particularly when trial and appellate counsel could not raise the mental health issues on direct appeal because counsel in both courts was one and the same and because no evidentiary hearing in the post-conviction proceedings was held to determine whether the untimely filing was due to the Petitioner's mental condition.

         As noted above, Engstrom has not disputed the material facts set forth by the Respondent. Indeed, Engstrom has not responded at all. I therefore find that the material facts set forth by Respondent (filing no. 13 at CM/ECF pp. 1-3) are not disputed.

         Analysis

         A one-year statute of limitations applies to habeas corpus petitions filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2244(d)(1). “For state prisoners, the limitations period runs from ‘the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.'” Gordon v. Arkansas, 823 F.3d 1188, 1194-1195 (8th Cir. 2016) (State prisoner who filed his federal habeas petition nearly eight months after one-year limitations period under Antiterrorism and Effective Death Penalty Act (AEDPA) failed to show that he exercised reasonable diligence in pursuit of his ...


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