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Sanders v. Cruickshank

United States District Court, D. Nebraska

August 28, 2018

RICKY J. SANDERS, Petitioner,
v.
RICHARD CRUICKSHANK, Warden Nebraska Penitentiary; and SCOTT R. FRAKES, Director Nebraska Department of Correctional Services; Respondents.

          MEMORANDUM AND ORDER

          LAURIE SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE.

         This 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.

         BACKGROUND

         Sanders's 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, [1] and 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.

         After 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. 2014).

         Sanders 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).

         Sanders 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).

         STANDARD OF REVIEW

         “Rule 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).

         DISCUSSION

         Sanders's 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.

         After a preliminary review of Sanders's Petition, the Court[2] 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 illegal ...

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