                      United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-2974
                                   ___________

Lloyd R. Trackwell,                   *
                                      *
            Plaintiff-Appellant,      *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * District of Nebraska.
David Domina; Craig Howell; Domina *
Law Office, P.C.,                     *     [UNPUBLISHED]
                                      *
            Defendants-Appellees.     *
                                 ___________

                             Submitted: April 19, 2006
                                 Filed: May 9, 2006
                                 ___________

Before ARNOLD, LAY, and COLLOTON, Circuit Judges.
                           ___________

PER CURIAM.

      Lloyd R. Trackwell appeals from the district court’s1 dismissal of his legal
malpractice claim against David Domina, Craig Howell, and Domina Law Office, P.C.
(“Domina Law”). Trackwell argues the Equal Protection and Due Process Clauses of
the United States Constitution require that Nebraska’s two-year statute of limitations
governing professional malpractice claims be tolled during the pendency of a



      1
        The Honorable Joseph F. Bataillon, Chief Judge, United States District Court
for the District of Nebraska.
defendant’s criminal conviction in cases where that conviction is ultimately vacated.
We affirm.

       In January 2001, a jury found Trackwell guilty in a criminal proceeding in the
District Court for Lancaster County, Nebraska. Trackwell was represented at trial by
Domina and Howell of Domina Law. On September 5, 2001, Trackwell was
sentenced to four to eight years’ imprisonment. Trackwell directly appealed his
conviction pro se and the Nebraska Court of Appeals reversed and remanded for a
new trial on the grounds that a required lesser-included offense instruction had not
been given. State v. Trackwell, No. A-01-1174, 2003 WL 22231883 (Neb. Ct. App.
Sept. 30, 2003), review overruled (Feb. 19, 2004). On March 9, 2004, Trackwell was
released from incarceration pending retrial. The State of Nebraska elected not to retry
Trackwell and dismissed his case on August 11, 2004.

       On August 25, 2004, Trackwell filed an action in federal district court against
Domina, Howell, and Domina Law, alleging they were professionally negligent while
representing him from August 2000 through February 2001.2 The defendants moved
to dismiss Trackwell’s complaint, arguing that the two-year statute of limitations
governing professional negligence claims in Nebraska had expired. See Neb. Rev.
Stat. § 25-222. The district court granted the defendants’ motion to dismiss on the
grounds that Trackwell’s action was untimely.

      We review a district court’s decision granting a motion to dismiss de novo.
Norwood v. Dickey, 409 F.3d 901, 903 (8th Cir. 2005). As the district court noted,
under Nebraska law the professional negligence statute of limitations is not tolled
during a criminal defendant’s incarceration. See Gordon v. Connell, 545 N.W.2d 722,
726 (Neb. 1996). Trackwell argues, however, that requiring him to file a civil legal
malpractice claim during the pendency of his criminal conviction violated his right to


      2
       Jurisdiction was founded on diversity of citizenship. See 28 U.S.C. § 1332.

                                         -2-
equal protection and due process. According to Trackwell, such a rule required him
to diagnose his own legal malpractice problem, prepare the pleadings, and seek a stay
while his criminal appeal was pending—a series of steps he asserts imposes “an
extreme and necessarily unconstitutional burden on criminal defendants who believe
their criminal [cases have been] handled negligently.”

       As the district court pointed out, however, Trackwell knew that his conviction
had been reversed and remanded for a new trial before the two-year statute of
limitations had run, but waited nearly a year to file his malpractice claim. The district
court held that “[n]o denial of due process is apparent from these facts.” We agree.
Under Nebraska law, Trackwell was obligated to file his malpractice complaint
“within two years of his attorney’s last day of service in the matter in which the
alleged negligence occurred.” Seevers v. Potter, 537 N.W.2d 505, 511 (Neb. 1995).
The Nebraska Supreme Court has clearly directed that, when criminal defendants have
preserved their claims in this manner, they “can and should seek a stay in the civil suit
until the criminal case is resolved.” Id. Because this process comports with
constitutional requirements, Trackwell’s constitutional claims fail.

       Trackwell also argues that the district court erred by refusing to allow him to
amend his pleadings to offer additional details regarding facts alleged in the
complaint. He maintains these additional details would warrant the conclusion that
the statute of limitations should be equitably tolled. As the district court observed,
however, even if Trackwell added more details to his pleadings, an equitable tolling
claim could not be successful.

       Having carefully reviewed the record and applicable law, we conclude the
district court did not err in its conclusions of law. We therefore affirm for the reasons
stated by the district court. See 8th Cir. Rule 47B.
                          ______________________________



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