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Miksch v. Hansen

United States District Court, D. Nebraska

April 12, 2018

PATRICK M. MIKSCH, Petitioner,
v.
BRAD HANSEN, Warden, Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         Patrick M. Miksch filed his petition for writ of habeas corpus on January 18, 2018. The matter was progressed and Respondent filed what Respondent asserted were the relevant state court records. Respondent also filed a motion for summary judgment claiming that the statute of limitations for filing this action had long since passed. The matter has been briefed and is now submitted.

         Petitioner has objected to the motion explaining that Respondent has not submitted what Petitioner considers to be all the necessary state court records. While I disagree with Petitioner that Respondent has failed to file the necessary state court records and I deny the objection, out of an abundance of caution, I also take judicial notice of the entire state court records that are available to the public online through the “Nebraska Courts Case Search“ platform. See Stutzka v. McCarville, 420 F.3d 757, 761, n.2 (8th Cir. 2005) (court may take judicial notice of public records); Federal Rule of Evidence 201 (providing for judicial notice of adjudicative facts). Having done so, I now grant the motion for summary judgment.

         Background

         1. On November 4, 2013, the state district court entered an order indicating that Petitioner Patrick M. Miksch had entered a plea of no contest (as part of a plea agreement) to First Degree Sexual Assault, a Class II felony. (Filing no. 10-4, at CM/ECF pp. 1-2).

         2. On January 22, 2014, the state district court entered an order sentencing Petitioner to 20 to 25 years in prison, with 14 days' credit for time served. (Filing no. 10-4, at CM/ECF pp. 3-4).

         3. On February 20, 2014, Petitioner timely appealed. (Filing no. 10-1, at CM/ECF p. 11). On appeal, Petitioner argued various matters including that his sentence was excessive and that he received ineffective assistance of trial counsel in several respects. (Filing no. 10-8). Renee Mathias, together with Michael J. Wilson, signed the appellate brief on behalf of Petitioner.[1] Id. On January 23, 2015, the Nebraska Court of Appeals affirmed Petitioner's sentence but did not address the question of whether trial counsel was ineffective due to the lack of an adequate record. (Filing no. 10-10). Petitioner did not file a petition for further review. (Filing no. 10-2, at CM/ECF p. 2). The mandate was issued on March 9, 2015. Id.

         4. On August 11, 2015, Petitioner filed a motion for post-conviction relief in the state district court by and through a separate and independent retained lawyer Sean Conway.[2] (E.g., filing no. 10-5). On January 8, 2016, on Conway's motion to dismiss without prejudice, a copy of which was served on Renee Mathias, who Conway asserted was then representing Miksch (filing no. 10-5, CM/ECF pp. 15-18), the state district court dismissed Petitioner's motion for post-conviction relief without prejudice. (Filing no. 10-5, at CM/ECF p. 19).

         5. About a year later, on January 4, 2017, Petitioner filed another post-conviction action while proceeding pro se. (Filing no. 10-7.) After counsel (a third separate lawyer Bradley A. Ewalt) was appointed to represent Petitioner, [3] the state district court held a hearing with Petitioner present, the judge accepted an offer of proof by Ewalt in lieu of testimony by Petitioner, and then the judge dismissed the post-conviction action as time-barred.[4] The judge ruled that there “was no impediment to timely filing [that] had been created by State action or that any alleged impediment prevented the filing of defendant['s] motion within the statutory time limit.”[5] The judge applied Nebraska's one-year state of limitations. Neb. Rev. Stat. § 29-3001 (West).

         6. On June 5, 2017, Petitioner appealed. (Filing no. 10-1, at CM/ECF p. 7). On appeal, Petitioner took issue with the state district court's order denying Petitioner's second post-conviction action as time-barred. (Filing no. 10-9). On October 26, 2017, the Nebraska Court of Appeals summarily affirmed the judgment. (Filing no. 10-3, at CM/ECF p. 2); (filing no. 10-11). Petitioner filed a petition for further review, which was denied, and the mandate was issued on January 3, 2018. (Filing no. 10-3, at CM/ECF p. 2).

         7. This federal habeas corpus action was commenced on January 18, 2018. (Filing no. 1.)

         Analysis

         It is undisputed that Miksch filed his petition in this court more than one year from the date on which his conviction became final. 28 U.S.C. § 2244(d)(1) (establishing a one-year limitations period for state prisoners to file for federal habeas relief). It is also undisputed that none of the statutory time exclusions apply.

         To be specific (1) the statute began to run on February 23, 2015, following the direct appeal (30 days after the time for filing a petition for further review with the Nebraska Supreme Court[6]) and stopped upon the filing of the first state post-conviction action on August 11, 2015[7], pursuant to 28 U.S.C. ยง 2244(d)(2); (2) on January 8, 2016, the statute began to run again when the state district court dismissed without prejudice the first action for post-conviction relief; and (3) ...


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