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Gardner v. State

United States District Court, D. Nebraska

August 21, 2018

JUSTIN GARDNER, Petitioner,
v.
STATE OF NEBRASKA, Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         Pending before me is a petition for writ of habeas corpus. Respondent has filed the state court records and the matter has now been submitted after briefing.[1] Three of Petitioner's claims have been procedurally defaulted without excuse and the fourth has no merit. I will deny the petition with prejudice and deny a certificate of appealability. Because this case borders on the frivolous, I will be brief.

         The claims, as I summarized and condensed them, are these:

CLAIM ONE: Petitioner was the subject of an illegal search and seizure and an illegal interrogation in violation of the Fourth and Fifth Amendments.
CLAIM TWO: Petitioner was subjected to double jeopardy in violation of the Fifth Amendment.
CLAIM THREE: The declaration of a mistrial and the subsequent proceedings violated Petitioner's due process rights under the Fourteenth Amendment.
CLAIM FOUR: In violation of the Sixth Amendment, Petitioner was denied effective assistance of trial counsel and the district court failed to appoint appellate counsel after allowing trial counsel to withdraw or if appellate counsel was appointed then appellate counsel was ineffective.

(Filing no. 4 at CM/ECF pp. 1-2.)

         Summarized, the background[2] is this:

1. On July 25, 2017, Petitioner Justin Gardner was convicted by a jury in the District Court of Douglas County, Nebraska, of possession of a controlled substance and possession of a deadly weapon by a prohibited person.
2. That same day, the state district court sentenced Petitioner to concurrent prison sentences of 1 year to 2 years for possession of a controlled substance and 3 years to 3 years and 2 days for possession of a deadly weapon by a prohibited person.
3. Petitioner represented himself at trial and on direct appeal. The trial court appointed standby counsel for the trial proceedings. After sentencing, and in the presence of Petitioner, standby counsel informed the trial judge that Petitioner desired to represent himself on appeal. Petitioner did not contradict standby counsel's statement. Standby counsel then moved to withdraw. Petitioner did not object. The trial court granted the motion. There is no record that I can find showing Petitioner requested appellate counsel during the course of the direct appeal.
4. On September 1, 2017, the Nebraska Court of Appeals dismissed Petitioner's direct appeal for lack of jurisdiction because the appeal was not properly perfected under Nebraska law. Petitioner did not petition the Nebraska Supreme Court for further review.
5. In addition to the direct appeal, Petitioner filed various other pro se appeals to the Nebraska Court of Appeals (both prior to and following the jury trial), all of which ...

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