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Mason v. Boyd

United States District Court, D. Nebraska

February 19, 2019

DAVID A. MASON, Petitioner,
v.
TAGERT BOYD, Warden LCC, Respondent.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE

         This is 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 be granted.

         Undisputed Material Facts

          The material undisputed facts[1] are these:

         1. On 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, 3.)

         2. On 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.)

         3. 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.)

         4. On 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.)

         5. 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.” (Id.)

         6. Mason's habeas petition was filed with this Court on October 11, 2018. (Filing No. 1.)

         Mason's Claims

         Mason 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 ...

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