United States District Court, D. Nebraska
PATRICK M. MIKSCH, Petitioner,
BRAD HANSEN, Warden, Respondent.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
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.
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.
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).
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).
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. 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.
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. (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.
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,  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. 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.” The judge applied Nebraska's one-year
state of limitations. Neb. Rev. Stat. § 29-3001
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).
federal habeas corpus action was commenced on January 18,
2018. (Filing no. 1.)
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.
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) and stopped upon the filing of the first
state post-conviction action on August 11, 2015, pursuant to 28
U.S.C. § 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) ...