Sunday, September 09, 2007
US District Court habeas action was too late under Federal AEDPA because the defendant failed to appeal his original Nebraska state court conviction and obtained a direct appeal only years later to remedy his claim that his counsel was ineffective for failing to file a direct appeal on time. 063893P.pdf 09/06/2007 Keva Tyree O'Neal v. Michael Kenny U.S. Court of Appeals Case No: 06-3893 District of Nebraska - Lincoln. Something for all those goons in the joint who discover that their public defenders should have appealed the plea bargains they reach for them to think about: in federal court the merry-go-round comes to a stop. The defendant plead guilty to a few counts of first degree assault. His attorney botched the appeal because the poverty affidavit he drafted was deficient. Only much later did the Nebraska state court grant the defendant a direct appeal to remedy his counsel's ineffectiveness. Eight Circuit agrees that under Nebraska law, the direct appeal to remedy ineffective counsel is a new proceeding and not the original one. To determine whether a new direct appeal constitutes direct review within the meaning of AEDPA, we must examine the underlying state law and in State v McCracken the Nebraska Supreme Court explicitly rejected the defendant's position. "In State v. McCracken, the court held that the grant of a new direct appeal constitutes a new appellate process and does not reinstate the original appellate process. State v. McCracken, 615 N.W.2d 882, 882 (Neb. 2000); State v. McCracken, 615 N.W.2d 902 (Neb. 2000) (McCracken II)"