JOSEPH F. BATAILLON, District Judge.
This matter is before the Court on petitioner's objection (Filing No. 5) to the report and recommendation of the magistrate (Filing No. 4). I have carefully reviewed de novo the report and recommendation of the magistrate, the relevant case law, the motion and brief of the petitioner, and the documents submitted by the petitioner. I find that the magistrate is correct in her assessment of the facts and law and accordingly adopt her report and recommendation.
Petitioner has submitted this writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Filing No. 1). He also filed numerous documents in support of his petition (Filing No. 2). A jury found petitioner guilty of drug charges in Nebraska state court on January 28, 1994. On appeal the Nebraska Court of Appeals affirmed his conviction. Petitioner then filed for post-conviction relief in Nebraska state court alleging Fourth Amendment violations. It appears that petitioner lost at the district court level and then appealed to the Nebraska Court of Appeals. The Nebraska Court of Appeals evidently remanded for an evidentiary hearing on whether the respondent's residence had been searched prior to the issuance of a warrant. The district court then denied further relief, and on appeal to the Nebraska Court of Appeals, the denial of relief was affirmed.
Petitioner then filed this writ of habeas corpus in federal district court. He alleges that evidence used to convict him was obtained in violation of the Fourth Amendment and also that he did not receive a full and fair hearing in state court due to lack of pretrial suppression hearings, lack of objections to illegally seized evidence, and failure to raise the defense of entrapment.
DISCUSSION
I agree with the magistrate that the first line of inquiry is whether the petitioner exhausted his state court remedies prior to filing his federal habeas claim pursuant to 28 U.S.C. § 2254(b) and Rose v. Lundy, 455 U.S. 509 (1982). I further agree with the magistrate that the petitioner in this case did not exhaust his state court remedies.
The petitioner did not seek review by the Nebraska Supreme Court. A litigant who seeks review of the Nebraska Court of Appeal's decision must request the Nebraska Supreme Court for that review. See Neb. Rev. Stat. § 24-1107 and Neb. Ct. R. of Prac. 2F. Further, several months prior to the petitioner filing this habeas claim, the United States Supreme Court held that "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 1732 (1999). The petitioner has never requested review from the Nebraska Supreme Court. Therefore, I find that the petitioner failed to exhaust his state court remedies prior to filing this habeas petition.
The magistrate next analyzed whether the petitioner would now be barred from pursuing his state court remedies. I agree with the magistrate that pursuant to Neb. Ct. R. of Prac. 2F(1) the petitioner only had 30 days following the ruling by the Nebraska Court of Appeals to request review from the Nebraska Supreme Court. He failed to do so. Further, the court in Boerckel specifically stated that where the time for appeal [to the state's highest court] has passed, a procedural default results on those claims. Boerckel, 119 S.Ct. at 1734. Thus, petitioner's claim in this case is barred in Nebraska state court, as is his habeas claim in this court.
IT IS ORDERED, ADJUDGED AND DECREED THAT:
1. Petitioner's objection (Filing No. 5) to the magistrate's report and recommendation is hereby overruled;
2. The magistrate's report and recommendation (Filing No. 4) is hereby adopted;
3. That petitioner's petition for writ of habeas corpus (Filing No. 1) should be and hereby is dismissed;
4. A separate judgment will be entered against petitioner and in favor of respondent, and the action will be dismissed with prejudice.
JUDGMENT
In accordance with my Memorandum and Order entered on this date, judgment is entered against petitioner and in favor of respondent, and this action is dismissed with prejudice.