United States District Court, D. Nebraska
RICKY J. SANDERS, Petitioner,
RICHARD CRUICKSHANK, Warden Nebraska Penitentiary; and SCOTT R. FRAKES, Director Nebraska Department of Correctional Services; Respondents.
MEMORANDUM AND ORDER
SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Motion to Alter or Amend
under Rule 59(e) of the Federal Rules of Civil Procedure, ECF
No. 45, filed by Petitioner Ricky Sanders. For the reasons
stated below, the Motion will be denied.
Motion asks the Court to alter or amend its Judgment, ECF No.
44, denying his Petition for Habeas Corpus under 28 U.S.C.
§ 2254. The Court incorporates the background discussion
from its Memorandum and Order, ECF No. 43, Page ID 7327-30,
by reference, and provides the following summary:
On November 16, 2011, in the District Court for Douglas
County, Nebraska, Sanders was convicted of discharging a
firearm, in violation of Neb. Rev. Stat. § 28-1212.04,
using a firearm to commit a felony, in violation of Neb. Rev.
Stat. § 28- 1205(1)(a)(c). On January 20, 2012, Sanders
directly appealed his conviction to the Nebraska Court of
Appeals arguing there was insufficient evidence to support
his convictions and that the district court imposed an
excessive sentence. Sanders did not seek further review of
this decision by the Nebraska Supreme Court.
his direct appeal, Sanders filed a pro se motion for
postconviction relief under the Nebraska Postconviction
Relief Act, Neb. Rev. Stat. § 29-3001 et seq.,
with the Douglas County District Court. The motion asserted a
claim for ineffective assistance of counsel based on
counsel's failure to challenge the
constitutionality-state and federal- of Neb. Rev. Stat.
§ 28-1212.04, and counsel's failure to move to
suppress evidence obtained from a warrantless search of the
vehicle. The district court denied Sanders's motion, and
he appealed the denial directly to the Nebraska Supreme
Court. The Nebraska Supreme Court affirmed the denial.
State v. Sanders, 855 N.W.2d 350, 356, 359 (Neb.
then filed a petition for habeas corpus under Neb. Rev. Stat.
§ 29-2801 et seq, in the District Court for
Lancaster County, Nebraska, arguing his judgment of
conviction was void because Neb. Rev. Stat. §
28-1212.04, on its face, violates the Nebraska Constitution
and the U.S. Constitution. The district court denied the
petition because, under Nebraska law, Sanders's
conviction was a final judgment that could not be
collaterally attacked with a petition for habeas corpus. The
Nebraska Supreme Court affirmed the denial. Sanders v.
Frakes, 888 N.W.2d 514 (Neb. 2016).
filed his Petition under 28 U.S.C. § 2254 with this
Court on February 15, 2017. The Court denied the Petition,
Memorandum and Order, ECF Nos. 43, 44, and Sanders filed a
Motion under Fed.R.Civ.P. 59(e).
59(e) motions serve the limited function of correcting
‘manifest errors of law or fact or to present newly
discovered evidence.'” United States v. Metro.
St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006)
(quoting Innovative Home Health Care v. P. T.-O. T.
Assoc. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir.
1998)). “Such motions cannot be used to introduce new
evidence, tender new legal theories, or raise arguments which
could have been offered or raised prior to entry of
judgment.” Id. (quoting Innovative Home
Health Care, 141 F.3d at 1286).
Rule 59(e) Motion argues the Court failed to consider the
evidence submitted with his Petition that shows Neb. Rev.
Stat. § 28-1212.04 disparately impacts African
Americans. Pl.'s Br., ECF No. 46, Page ID 7347. This is
an as-applied challenge to § 28-1212.04.
preliminary review of Sanders's Petition, the
Court found that he had asserted the following
two potentially cognizable claims:
Claim One: Petitioner was denied effective assistance of
counsel because (1) trial and appellate counsel
(same counsel) failed to motion to quash the Information on
the ground that Neb. Rev. Stat. § 28-1212.04 is facially
unconstitutional under Neb. Const. art. III, § 18 and
under equal protection, and (2) trial and appellate counsel
(same counsel) failed to file a motion to suppress the