United States District Court, D. Nebraska
DAVID A. MASON, Petitioner,
TAGERT BOYD, Warden LCC, Respondent.
MEMORANDUM AND ORDER
RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE
a habeas corpus case in which the Respondent moves for
summary judgment. Respondent asserts that Mason procedurally
defaulted his claims at the state post-conviction appellate
phase of the state court litigation. Mason does not dispute
that he defaulted his claims. Rather he endeavors to
establish “cause” and “prejudice” as
an excuse. He has failed to do so, and summary judgment will
material undisputed facts are these:
January 4, 2017, in the District Court of Douglas County,
Nebraska, Petitioner David A. Mason pled guilty to burglary
and attempted first degree sexual assault in two separate
criminal dockets. (Filing no. 10-3 at CM/ECF pp. 1,
March 21, 2017, the state district court sentenced Mason to
consecutive prison sentences of 10 to 16 years for burglary
and 16 to 20 years for attempted first degree sexual assault.
(Id. at CM/ECF pp. 2, 4.)
Mason filed a consolidated direct appeal, assigning solely
that the district court abused its discretion by imposing
excessive sentences. (Filing no. 10-2 at CM/ECF p.
4.) The Nebraska Court of Appeals affirmed the lower
court's judgment by sustaining the State's motion for
summary affirmance. (Filing no. 10-1 at CM/ECF pp.
2, 4.) Mason did not petition the Nebraska Supreme Court
for further review. (Id. at CM/ECF pp. 2, 4.)
November 29, 2017, Mason filed a consolidated motion for
post-conviction relief in the state district court, alleging
that (1) his pleas were not knowing, intelligent, and
voluntary; (2) he received ineffective assistance of counsel;
and (3) the district court abused its discretion by imposing
excessive sentences. (Filing no. 10-4 at CM/ECF pp.
1, 3-9.) The state district court entered a written
order denying Mason's consolidated post-conviction motion
without an evidentiary hearing and the judge specifically
addressed the claim that trial counsel was ineffective.
(Id. at CM/ECF pp. 12-16.)
Mason did not appeal the state district court's order.
(See Filing no. 1 at CM/ECF p. 5.) Mason states in
his petition that the “prison legal aide that wrote the
postconviction motion did not tell me that I needed to
appeal, and when I found out it was too late.”
Mason's habeas petition was filed with this Court on
October 11, 2018. (Filing No. 1.)
asserted three potentially cognizable claims. (Filing No.
7.) They are:
Claim One: Petitioner's guilty pleas were not knowing,
intelligent and voluntary for one or more of the reasons set
forth in filing no. 1 at CM/ECF p.5.
Claim Two: Petitioner was denied effective assistance of
trial counsel for one or more of the reasons set forth in