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Gardner v. State
United States District Court, D. Nebraska
August 21, 2018
JUSTIN GARDNER, Petitioner,
STATE OF NEBRASKA, Respondent.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
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. 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.
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.)
the background 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
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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