Jacob v. Houston

Filing 228

MEMORANDUM OPINION that Jacob's amended petition for a writ of habeas corpus (Filing No. 136) will be denied in its entirety. Jacob's objection (Filing No. 225) to the Court's March 13, 2017, order (Filing No. 222) will be overruled. J acob's motion to certify questions to the Nebraska Supreme Court (Filing No. 224) will be denied. Finally, Jacob's request for an evidentiary hearing will be denied. A certificate of appealability will not be issued in this case. A separate order will be entered herein in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party) (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
STEVEN M. JACOB,

)
)
Petitioner,
)
)
v.
)
)
SCOTT FRAKES,
)
)
Respondent.
)
______________________________)

4:10CV3073

MEMORANDUM OPINION

This matter is before the Court on a petition for a
writ of habeas corpus pursuant to the Antiterrorism and Effective
Death Penalty Act (“AEDPA”) (Filing No. 136).

Steven M. Jacob

(“petitioner” or “Jacob”) seeks relief from his state convictions
of first degree murder, second degree murder, and using a firearm
to commit a felony (Id.).

In addition, petitioner has moved to

certify questions to the Nebraska Supreme Court (Filing No. 224),
and has filed an objection (Filing No. 225) to the Court’s March
13, 2017, Memorandum and Order (Filing No. 222).

After careful

review of the voluminous record, the Court finds as follows.
BACKGROUND
In August 1989, petitioner’s former girlfriend, Melody
Hopper (“Hopper”), and Jim Etherton (“Etherton”) were murdered.
State v. Jacob, No. S-11-439, 1 (Neb. Jul. 10, 2013) (“Jacob
III”).

The state initially prosecuted Jacob for the murders of

Hopper and Etherton, and he was convicted of two counts of murder

in the first degree and two counts of using a firearm to commit a
felony.
I”).

State v. Jacob, 494 N.W.2d 109, 113 (Neb. 1993) (“Jacob

The Nebraska Supreme Court reversed Jacob’s convictions and

remanded the case for a new trial, finding that statements
admitted into evidence in the trial constituted inadmissible
hearsay.

Jacob III supra, at 2.
Prior to retrial, Jacob filed a “plea in bar,” which

the state district court treated as a motion to dismiss.
2-3.

Id. at

Jacob’s “plea in bar” alleged prosecutorial misconduct as a

claim triggering the Double Jeopardy Clause.

Id.

Jacob’s claim

of prosecutorial misconduct was denied by the state district
court.

Id.

The state district court noted, “that substantially

all of [Jacob’s] allegations are frivolous, scurrilous and
without merit.

There is not one shred of evidence to support the

bare allegations of prosecutorial misconduct set forth by
[Jacob].”

Id. at 3 (internal quotation marks omitted).
Following the Nebraska Supreme Court’s remand, Jacob

petitioned this Court for a writ of habeas corpus arguing
prosecutorial misconduct as a bar to being subject to double
jeopardy (Id.).

This Court denied his petition, and he appealed

to the United States Court of Appeals for the Eighth Circuit
(Id.).

The Eighth Circuit affirmed the denial of habeas relief

finding that “Jacob has not overcome the state court’s finding of
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no prosecutorial misconduct.”

Jacob v. Clarke, 52 F.3d 178, 179-

80 (8th Cir. 1995).
At retrial in state district court, Jacob was
subsequently found guilty of one count of first degree murder,
one count of second degree murder, and two counts of use of a
firearm to commit the crimes (Jacob III supra, at 4).

On direct

appeal to the Nebraska Supreme Court, Jacob was represented by
counsel, and he also filed a pro se brief addressing issues Jacob
asserts his appellate counsel refused to raise.
also Filing No. 136 at 12.
Jacob’s convictions.

Id. at 4.

See

The Nebraska Supreme Court affirmed

State v. Jacob, 574 N.W.2d 117, 143 (Neb.

1998)(“Jacob II”).
Jacob filed a motion for state postconviction relief in
1999 (Filing No. 88-4 at 1).

For unexplained reasons, Jacob’s

state motion was left unresolved for a substantial period of time
(Id. at 10).

On April 25, 2011, the state district court issued

an order denying Jacob’s motion for postconviction relief
stating, “[t]he court has reviewed the files and records in this
case and finds that all of the contentions of Jacob are either
conclusory, do not constitute Constitutional violations, were
decided on direct appeal in State v. Jacob II or involve issues
of defense trial strategy.”

Id. at 10-11.

The Nebraska Supreme

Court subsequently affirmed the state district court’s denial of
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postconviction relief holding that Jacob’s claims “are either
procedurally barred or otherwise without merit.”

Jacob III

supra, at 32.
On April 23, 2010, while his state motion for
postconviction relief was pending, Jacob filed his habeas
petition with this Court pursuant to 28 U.S.C. § 2254 (Filing No.
1).

On June 22, 2010, Judge Bataillon found that six of

petitioner’s claims were potentially cognizable for federal court
review (Filing No. 6).

After extensive motion practice by the

parties, the Court directed the parties to have this case ready
for disposition.

Filing No. 211 at 1-4.

Pursuant to this

Court’s order, Jacob and Scott Frakes (“respondent”) filed
supplemental briefs on March 24, 2017, and April 24, 2017,
respectively (Filing Nos. 223, 226).

In addition, Jacob filed a

motion to certify ten questions to the Nebraska Supreme Court
(Filing No. 224) and an objection (Filing No. 225) to the Court’s
March 13, 2017, order clarifying the Final Progression Order
(Filing No. 222).
DISCUSSION
I. Objection to Court’s March 13, 2017, Order
Jacob filed an objection to the Court’s March 13, 2017,
order (Filing No. 222) denying his motion to order the Clerk of
the Court or the respondent to provide petitioner with a page
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index of the number exhibits from Schlichtman v. Jacob (Filing
No. 225).

Jacob claims he did not receive a response from the

Clerk of the Court after his request for the index (Id. at 1).
Jacob explains the purpose of obtaining the page index is to
verify specific records are contained in the federal record.
id.

See

Jacob attached a list of specific exhibits that he wishes to

verify are in the federal record and states, “[i]f the exhibits
are in the federal courts record a part of [Filing No. 216] then
nothing more needs to be done.”

Id.

Finally, Jacob requests an

evidentiary hearing in the event that the exhibits are not in the
federal record (Id. at 1).
The Court has reviewed the list of exhibits attached to
Jacob’s objection and verified that all of them are included in
Filing No. 216-3.

Accordingly, Jacob’s objection to the Court’s

order will be overruled.

Furthermore, Jacob’s request for an

evidentiary hearing with regard to this issue will be denied as
moot.
II. Motion to Certify Questions to the Nebraska Supreme Court
Jacob moves this Court to certify ten questions to the
Nebraska Supreme Court (Filing No. 224).

These ten questions all

revolve around Jacob’s claim that Nebraska’s second degree murder
statute is unconstitutional.

See Filing No. 224.

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The ability of the Nebraska Supreme Court to answer
certified questions is provided by statute.
The Supreme Court may answer questions of law
certified to it by the Supreme Court of the
United States, a Court of Appeals of the
United States, or a United States District
Court, when requested by the certifying
court, if there are involved in any
proceeding before it questions of law of this
state which may be determinative of the cause
then pending in the certifying court as to
which it appears to the certifying court
there is no controlling precedent in the
decisions of the Supreme Court of this state.
Such request shall not obligate the Supreme
Court to accept such request for
certification and the Supreme Court may, in
its absolute discretion, accept or reject
such request for certification as it shall in
each case determine.
Neb. Rev. Stat. § 24-219.

In addition, this Court’s local rules

provide guidelines for the certification of a question to the
highest court of a state.

“A party may move to certify a

question of state law to the highest court of that state when it
appears that (a) an issue of that state’s law is determinative of
the case and (b) there is no clear controlling state law
precedent.”

NECivR 7.4.

As discussed below, Jacob’s claim that Nebraska’s
second degree murder statute is unconstitutional is procedurally
barred, thus depriving this Court of subject matter jurisdiction
over that claim.

See Coleman v. Thompson, 501 U.S. 722, 729, 111

-6-

S. Ct. 2546, 115 L. Ed. 2d 640 (1991) (noting that the
independent and adequate state ground doctrine is
jurisdictional).

There are no state law determinations necessary

for resolution of Jacob’s claims.

Accordingly, Jacob’s motion to

certify questions to the Nebraska Supreme Court (Filing No. 224)
will be denied.
III. Petition for Habeas Corpus
A. Standard of Review
When a state court has adjudicated a habeas
petitioner’s claim on the merits, there is a very limited and
extremely deferential standard of review as to the facts and the
law.

See 28 U.S.C. § 2254(d).

With regard to the deference owed

to factual findings of a state court’s decision, a federal court
is bound by those findings unless the state court made a
“decision that was based on an unreasonable determination of the
facts in light of evidence presented in the State court
proceeding.”

28 U.S.C. § 2254(d)(2).

In addition, a federal

court must presume that a factual determination made by the state
court is correct unless the petitioner “rebut[s] the presumption
of correctness by clear and convincing evidence.”

28 U.S.C.

§ 2254(e)(1).
Furthermore, Section 2254(d)(1) states that a federal
court may not grant a writ of habeas corpus unless the state
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court’s decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States.”

28 U.S.C. § 2254(d)(1).

As explained by the Supreme Court in Williams v. Taylor, 529 U.S.
362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000), a state court
acts contrary to clearly established federal law if it applies a
legal rule that contradicts the Supreme Court’s prior holdings,
or if it reaches a different result from one of the Court’s cases
despite confronting indistinguishable facts.
at 399.

Williams, 529 U.S.

Furthermore, “it is not enough for [the court] to

conclude that, in [its] independent judgment, [it] would have
applied federal law differently from the state court; the state
court’s application must have been objectively unreasonable.”
Rousan v. Roper, 436 F.3d 951, 956 (8th Cir. 2006).
As the Supreme Court noted, “[i]f this standard is
difficult to meet, that is because it was meant to be.”
Harrington v. Richter, 562 U.S. 86, 101, 131 S. Ct. 770, 178 L.
Ed. 2d 624 (2011).

The deference due to state court decisions

“preserves authority to issue the writ in cases where there is no
possibility fairminded jurists could disagree that the state
court’s decision conflicts with [Supreme Court] precedents.”
Harrington, 562 U.S. at 102.

In short, “[i]t bears repeating

that even a strong case for relief does not mean the state
-8-

court’s contrary conclusion was unreasonable.”

Id.

This high

degree of deference only applies where a claim has been
adjudicated on the merits by the state court.

See Brown v.

Luebbers, 371 F.3d 458, 460-61 (8th Cir. 2004) (“[A]s the
language of the statute makes clear, there is a condition
precedent that must be satisfied before we can apply the
deferential AEDPA standard to [the petitioner’s] claim.

The

claim must have been ‘adjudicated on the merits’ in state
court.”).
The Eighth Circuit clarified what it means for a claim
to be adjudicated on the merits, finding that “AEDPA’s
requirement that a petitioner’s claim be adjudicated on the
merits by a state court is not an entitlement to a wellarticulated or even correct decision by a state court.”
Worthington v. Roper, 631 F.3d 487, 496-97 (8th Cir. 2011)
(internal quotation marks and citations omitted).

The Eighth

Circuit also determined that a federal court reviewing a habeas
claim under AEDPA must “look through” the state court opinions
and “apply AEDPA review to the ‘last reasoned decision’ of the
state courts.”

Worthington, 631 F.3d at 497.

A district court

should do “so regardless of whether the affirmance was reasoned
as to some issues or was a summary denial of all claims.”
The Supreme Court agrees, stating:
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Id.

There is no text in the statute requiring a
statement of reasons. The statute refers
only to a “decision,” which resulted from an
“adjudication.” As every Court of Appeals to
consider the issue has recognized,
determining whether a state court’s decision
resulted from an unreasonable legal or
factual conclusion does not require that
there be an opinion from the state court
explaining the state court’s reasoning.
Harrington, 562 U.S. at 98.
Finally, a defendant’s federal constitutional claim may
be procedurally barred when the defendant’s conviction rests upon
an independent and adequate state ground.

Trevino v. Thaler, 133

S. Ct. 1911, 1913, 185 L. Ed. 2d 1044 (2013).

A state procedural

bar for a defendant failing to raise a claim of error at the time
or in the place that state law requires “normally rests upon an
independent and adequate state ground.”
1917 (internal quotation marks omitted).

Trevino, 133 S. Ct. at
However, “[a] prisoner

may obtain federal review of a defaulted claim by showing cause
for the default and prejudice from a violation of federal law.”
Martinez v. Ryan, 566 U.S. 1, 10, 132 S. Ct. 1309, 182 L. Ed. 272
(2012).
B. Ineffective Assistance of Counsel and Adequacy of
Nebraska Postconviction and Appellate Procedure Claims
Jacob raises ineffective assistance of counsel claims
for both appellate counsel (claim one) and second trial counsel
(claim three) (Filing No. 136 at 9, 42).
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In addition, Jacob

asserts inadequate postconviction and appellate procedures as
cause and prejudice to overcome any procedural bar to his claims
(claim nine).

See Filing Nos. 136 at 177-182; 163 at 9, 99-104.

The clearly established rule regarding ineffective
assistance of counsel claims has two parts.

A defendant must

show both that counsel’s performance was deficient and that the
deficient performance resulted in prejudice to the defendant.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L. Ed. 2d 674 (1984).

In other words, the right to effective

assistance of counsel “is denied when a defense attorney’s
performance falls below an objective standard of reasonableness
and thereby prejudices the defense.”

Yarborough v. Gentry, 540

U.S. 1, 5, 124 S. Ct. 1, 157 L. Ed. 2d 1 (2003).

The prejudice

prong of the Strickland standard requires the petitioner to “show
that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.”

Strickland, 466 U.S. at 694.

Jacob’s claim for ineffective assistance of appellate
counsel is premised on:

(1) a purported breach of the Nebraska

Rules of Professional Conduct; (2) failure to raise the issue of
Double Jeopardy on direct appeal, and (3) failure to raise issues
with regard to ineffective assistance of trial counsel on direct
appeal.

See Filing 136 at 9-16.

The Nebraska Supreme Court

-11-

noted that the only instance of ineffective assistance of
appellate counsel Jacob preserved dealt with a failure to raise
the Double Jeopardy issue.

See Jacob III supra, at 29-30.

Because Jacob raised the issue of Double Jeopardy on direct
appeal, the Nebraska Supreme Court found that Jacob suffered no
prejudice.

Id.
Jacob’s argument for ineffective assistance of trial

counsel asserts issues relating to:

(1) Hopper’s cause of death

and alleged gross negligence of Dr. Cherry (Filing No. 136 at
42); (2) failure to present a ballistics expert and alleged false
testimony from John Ingram (Id. at 54); (3) failure to
investigate and present Jacob’s complete defense (Id. at 70); (4)
foundational ineffective assistance claims (Id. at 100); and (5)
inadequate handling of alleged false testimony from Jake
Faulkerson (Id. at 106-114).

The Nebraska Supreme Court held on

appeal of the state district court’s denial of postconviction
relief that “[t]he only ineffective assistance of trial counsel
claims preserved for our review are those that were raised on
direct appeal, asserted in Jacob’s motion for postconviction
relief, and argued in his brief on appeal from the denial of
postconviction relief.”
citation omitted).

Jacob III supra, at 27-28 (internal

The Nebraska Supreme Court found that the

only issues that met this criteria were his issues with failure
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to present evidence from a ballistics expert and issues relating
to Jake Faulkerson.

Id. at 28.

Ultimately, the Nebraska Supreme

Court found these issues were also barred.

Id. at 28-30.

The Court has reviewed Jacob’s extensive arguments
regarding ineffective assistance of both appellate and trial
counsel.

In addition, the Court has reviewed the Nebraska

Supreme Court’s decision in Jacob III supra, as the last reasoned
decision.

See Worthington v. Roper, 631 F.3d at 497.

The Court

finds that Jacob’s claims of ineffective assistance of counsel
are either procedurally barred from review, lack merit, or are
the result of a reasonable application of federal law as
determined by the United States Supreme Court.
Jacob asserts that inadequate Nebraska postconviction
and appellate procedural rules establish cause and prejudice to
overcome any procedural bar imposed by the Nebraska courts.
Filing No. 163 at 8.

See

In addition, Jacob argues that the

procedures followed by the Nebraska courts violate the
fundamental principles of Due Process (Filing No. 163 at 101).
Under Nebraska law, a prisoner in custody is entitled
to postconviction relief “[i]f the court finds that there was
such a denial or infringement of the rights of the prisoner as to
render the judgment void or voidable under the Constitution of
[Nebraska] or the Constitution of the United States.”
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Neb. Rev.

Stat. § 29-3001(2).

However, “a motion for postconviction relief

cannot be used to secure review of issues which were known to the
defendant and which were or could have been litigated on direct
appeal.”

State v. Thoi Vo, 783 N.W.2d 416, 421 (Neb. 2010).

In

addition, “if the motion [for postconviction relief] alleges only
conclusions of fact or law, or the records and files in the case
affirmatively show that the movant is entitled to no relief, no
evidentiary hearing is required.”

Thoi Vo, 783 N.W.2d at 420.

The Court has reviewed Jacob’s arguments that
Nebraska’s postconviction and appellate procedures establish
cause for default and prejudice and finds they lack merit.
Martinez, 566 U.S. at 10.

See

In addition, the Court finds that

Jacob’s arguments fail to establish a violation of the Due
Process Clause.

For the foregoing reasons, Jacob’s claims of

ineffective assistance of counsel (claims one and three) and
inadequate postconviction and appellate procedures (claim nine)
will be denied.
C. Right to a Fair Trial
Jacob asserts he was denied a fair trial, arguing
failure to grant a change of venue motion, inadequate voir dire,
and lack of an impartial judge and jury.
17-41.

See Filing No. 136 at

These issues were presented to the Nebraska Supreme Court

in Jacob II, which denied Jacob the relief.
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See Jacob II supra,

574 N.W.2d at 128-136.

Jacob asserts that because the Nebraska

Supreme Court did not identify the “controlling U.S. Supreme
Court decisions,” this Court should review these claims de novo.
Filing No. 136 at 41 (citing Johnson v. Williams, 568 U.S. 289,
133 S. Ct. 1088, 185 L. Ed. 2d 105 (2013)).
As an initial matter, Jacob’s reliance on Johnson is
misplaced.

“When a state court rejects a federal claim without

expressly addressing that claim, a federal habeas court must
presume that the federal claim was adjudicated on the merits –but that presumption can in some limited circumstances be
rebutted.”

Johnson, 133 S. Ct. at 1096.

The “unencumbered de

novo review” Jacob seeks is the exception to the rule rather than
the rule itself.

See id. (“When the evidence leads very clearly

to the conclusion that a federal claim was inadvertently
overlooked in state court, § 2254(d) entitles the prisoner to an
unencumbered opportunity to make his case before a federal
judge.”).
The Court has reviewed Jacob’s arguments and the
Nebraska Supreme Court’s order in Jacob II as the last reasoned
decision with regard to Jacob’s second claim.
631 F.3d at 497.

See Worthington,

The Court finds that Jacob has not met his

burden to overcome the rebuttable presumption discussed in
Johnson.

Furthermore, the Court finds that the Nebraska Supreme
-15-

Court’s decision with regard to Jacob’s claims relating to a fair
trial and due process constitutes an objectively reasonable
application of clearly established federal law as determined by
the Supreme Court of the United States.
§ 2254(d)(1).

See 28 U.S.C.

Accordingly, Jacob’s second claim fails.

D. Prosecutorial Misconduct
Jacob’s fourth claim asserts prosecutorial misconduct
arguing: (1) improper statements by the prosecutor during closing
arguments (Filing No. 136 at 115); (2) improper impeachment of
petitioner (id. at 118; (3) use of false testimony from Jake
Faulkerson (id. at 122); (4) misconduct and improper influence of
juror Meier (id. at 123); (5) use of false testimony from John
Ingram (id. at 123-24); and (6) misrepresentation of a suspect
vehicle (id. at 124).
From a review of the record, the Court notes that Jacob
asserted his claims of prosecutorial misconduct at varying stages
following his conviction.

Jacob’s assertion of misconduct by

improper statements during closing arguments and use of false
testimony were expressly decided by the Nebraska Supreme Court in
Jacob II supra.

574 N.W.2d at 137-39.

Jacob’s arguments regarding improper impeachment and
the misrepresentation of a suspect vehicle were guised under
Jacob’s ineffective assistance of counsel claims.
-16-

The Nebraska

Supreme Court in Jacob II declined to address these issues
stating, “[a]n issue not presented to or decided by the trial
court is not an appropriate issue for consideration on appeal.”
Id. at 138.

Finally, Jacob asserted his argument with regard to

a DWI arrest of John Ingram and its alleged implication of
prosecutorial misconduct in his motion for postconviction relief
(Filing No. 88-5 at 95-99).

Again, this argument is presented

under the guise of an ineffective assistance of counsel claim.
See id.

In discussing Jacob’s ineffective assistance of counsel

claims, the state district court stated,
[d]espite Jacob’s elaborate theories and
assumptions, his claims of a “conspiracy”
between his attorneys and the prosecution,
his conclusion that the trial was a puppet
show and farce, the fact is, as shown by the
record, that all of his claims either are
conclusory, were raised on direct appeal or
clearly involve strategic defense strategy
and are not the basis for postconviction
relief.
Filing No. 88-4 at 10.

The Nebraska Supreme Court affirmed the

denial of postconviction relief holding that Jacob’s claims for
ineffective assistance of counsel were barred.

Jacob III supra,

at 28.
The Court has reviewed Jacob’s arguments, the last
reasoned decisions of the Nebraska courts, and the voluminous
record.

The Court finds that Jacob’s claims for prosecutorial

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misconduct are either procedurally barred or decided on the
merits under a reasonable application of clear federal law as
determined by the United States Supreme Court.
§ 2254(d)(1).

See 28 U.S.C.

In addition, Jacob has failed to provide

sufficient evidence to establish cause and prejudice for
prosecutorial misconduct claims that are procedurally barred.
See Martinez, 566 U.S. at 10.
E. Double Jeopardy
On April 20, 1993, following the first trial, a hearing
was held on a plea in bar filed by Jacob (Filing 88-4 at 4).
During this hearing, Jacob argued instances of prosecutorial
misconduct upon which his Double Jeopardy claim is premised.
id. at 4-5.

See

“The trial court concluded that Jacob’s allegations

of misconduct were frivolous and without merit finding that there
was not one shred of evidence to support the allegations of
prosecutorial misconduct.”

Id. at 5.

Jacob subsequently

petitioned this Court for a writ of habeas corpus and appealed
this Court’s denial of relief to the Eighth Circuit.

Id.

The

Eighth Circuit concluded that Jacob had failed to prove
prosecutorial misconduct as grounds for triggering the Double
Jeopardy Clause.
Cir. 1995).

See Jacob v. Clarke, 52 F.3d 178, 180-82 (8th

Jacob reasserted his Double Jeopardy claim on direct

appeal in Jacob II, upon which the Nebraska Supreme Court found
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it to be procedurally barred.

Jacob II supra, at 141.

Jacob

again argued his claim under Double Jeopardy in postconviction
relief.

The last reasoned state court decision regarding Jacob’s

Double Jeopardy claim is found in Jacob III, finding that Jacob’s
legal argument on direct appeal lacked merit, precluding the
possibility of prejudice.

See Jacob III supra, at 23.

See also

Worthington, 631 F.3d at 497.
Reversal of a conviction based upon the erroneous
admission of evidence does not trigger the Double Jeopardy
Clause, so long as the remaining evidence is sufficient to
support a finding of guilt beyond a reasonable doubt.

See

Lockhart v. Nelson, 488 U.S. 33, 40-42, 109 S. Ct. 285, 102 L.
Ed. 2d 265 (1988).

Reversal based upon trial error “implies

nothing with respect to the guilt or innocence of the defendant,
but is simply a determination that he has been convicted through
a judicial process which is defective in some fundamental
respect.”

Lockhart, 488 U.S. at 40 (internal quotation marks

omitted).

In other words, “the Double Jeopardy Clause imposes no

limitation upon the power of the government to retry a defendant
who has succeeded in persuading a court to set his conviction
aside, unless the conviction has been reversed because of the
insufficiency of the evidence.”

Oregon v. Kennedy, 456 U.S. 667,

666, 102 S. Ct. 2083, 72 L. Ed. 2d 416 n.6 (1982).
-19-

The Court has reviewed Jacob’s arguments, relevant law,
and the Nebraska Supreme Court’s decision regarding Double
Jeopardy, and finds that the Nebraska Supreme Court’s decision in
Jacob III is an objectively reasonable application of clearly
established federal law.

Accordingly, Jacob’s Double Jeopardy

claim will be dismissed under the deferential standard of AEDPA.
F. Abuse of Process
Jacob’s amended petition asserts an abuse of process as
an individual claim (Filing No. 136 at 158).

Upon review of

Jacob’s arguments, the Court finds Jacob’s abuse of process
argument asserts prejudice as a result of allegedly being
subjected to double jeopardy.

The Court finds this claim

insufficient to allege a separate constitutional violation, and
it is insufficient to establish prejudice for the purposes of his
double jeopardy claim.
G. Constitutional Validity of Nebraska Second Degree Murder
Statute
In reviewing Jacob’s appeal following denial of
postconviction relief, the Nebraska Supreme Court rejected
Jacob’s arguments that Nebraska’s Second Degree Murder Statute,
Neb. Rev. Stat. § 28-304, is unconstitutionally vague.
supra, at 25.

Jacob III

In addition, the Nebraska Supreme Court found that

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“Jacob’s attacks on the constitutionality of the murder statutes
are procedurally barred.”

Id.

In an attempt to overcome the procedural bar for this
issue, Jacob argues that the constitutionality of § 28-304 deals
with the Nebraska courts’ subject matter jurisdiction to enforce
a conviction under the statute; therefore, it cannot be waived or
procedurally barred.

See Filing No. 136 at 164.

In addition,

Jacob asserts that because the Nebraska Supreme Court determined
§ 28-304 is constitutional, the court waived any procedural bar.
See id. at 172 (citing Niederstadt v. Nixon, 505 F.3d 832, 835
(8th Cir. 2007)).
Jacob has failed to provide, and the Court has not
found, any authority to support his proposition that Nebraska
courts are deprived of subject matter jurisdiction over criminal
offenses due to the Nebraska Unicameral’s alleged ambiguity in
drafting.

Furthermore, the Court is not persuaded that Jacob’s

arguments are sufficient to stip Nebraska courts of subject
matter jurisdiction over this criminal conduct.
The Court now turns to Jacob’s argument regarding
waiver of a procedural bar.

Jacob’s waiver argument is premised

on the Nebraska Supreme Court’s determination that § 28-304 is
constitutional.
supra, at 25.

See Filing No. 136 at 172.

See also Jacob III

“The independent and adequate state ground
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doctrine is jurisdictional.”

Coleman, 501 U.S. at 729.

If the

state court judgment relies on an independent and adequate state
ground, a review of an independent federal claim could not change
the judgment and would result in an advisory opinion.
501 U.S. at 729.

Coleman,

When a state court rests its decision on

alternative state and federal grounds, a federal reviewing court
“may reach the federal question on review unless the state
court’s opinion contains a plain statement that its decision
rests upon adequate and independent state grounds.”

Harris v.

Reed, 489 U.S. 255, 261, 109 S. Ct. 1038, 103 L. Ed. 2d 308
(1989) (internal quotation marks omitted).
Jacob’s reliance on Niederstadt is misplaced due to
distinguishing facts in the cases.

In Niederstadt, the state

court’s decision gave “no indication that the Court was invoking
a procedural bar, particularly if the State did not argue that
the due process issue was defaulted.”

505 F.3d at 835.

In this

case the Nebraska Supreme Court expressly stated that “Jacob’s
attacks on the constitutionality of the murder statutes are
procedurally barred.”

Jacob III supra, at 25.

The Nebraska

Supreme Court went on to state that Jacob did not raise
constitutional challenges to the murder statutes on direct
appeal, and “the statutory language of § 28-304 has remained
unchanged since 1978.”

Id.
-22-

The Court is not persuaded by Jacob’s arguments with
regard to subject matter jurisdiction.

In addition, the Court

finds that the Nebraska Supreme Court’s decision contains a plain
statement that its decision rests upon adequate and independent
state grounds.

Accordingly, Jacob’s attack on the

constitutionality of § 28-304 is procedurally barred.
Furthermore, the Court finds that Jacob has failed to establish
cause and prejudice to overcome the procedural bar.
H. Constitutional Validity of AEDPA
Jacob’s eighth claim asserts that AEDPA violates the
Due Process Clause of the Fourteenth Amendment by failing to
require states to adhere to its principles.
at 174-75.1

See Filing No. 136

Liberally construing his arguments, it appears that

Jacob is generally attacking the limitations imposed on federal
courts in reviewing state court judgments as well as the
procedural process for which the United States Supreme Court
determines federal law.

See Filing Nos. 136 at 174-176; 163 at

95-98.

1

The Court finds that Jacob’s argument asserts not only
that AEDPA fails to adequately require states to adhere to the
Due Process Clause, but also asserts other constitutional issues
already rejected by the Nebraska Supreme Court and this Court’s
determinations. See Filing Nos. 136 at 174-176; 163 at 95-98.
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Federal statutes are presumed to be constitutional, and
the party challenging the statute bears the heavy burden of
proving that it violates the Constitution.

N.Y. State Club

Ass’n, Inc. v. City of N.Y., 487 U.S. 1, 17, 108 S. Ct. 2225, 101
L. Ed. 2d 1 (1988).

Furthermore, “the constitutional foundations

of § 2254(d)(1) are solidified by the Supreme Court’s repeated
application of the statute.”

Bowling v. Parker, 882 F. Supp. 2d

891, 902-03 (E.D. Ky. 2012) (collecting cases); see also Brian R.
Means, Federal Habeas Manual § 3:72 (May 2017)(noting that no
provisions of AEDPA have been found unconstitutional).
The Court has reviewed Jacob’s arguments and finds that
he has failed to overcome his burden to prove that AEDPA is
unconstitutional.

Accordingly, his claim that AEDPA violates the

Due Process Clause will be denied.
I. Evidentiary Hearing(s)
Jacob requests an evidentiary hearing to establish the
factual basis of his claims (Filing No. 136 at 183).

See also

Filing No. 221 at 2-4 (requesting an evidentiary hearing
specifically to present evidence on the medical cause of death).
If the [petitioner] has failed to develop the
factual basis of a claim in State court
proceedings, the court shall not hold an
evidentiary hearing on the claim unless the
applicant shows that–
(A) the claim relies on-24-

(I) a new rule of constitutional law,
made retroactive to cases on collateral
review by the Supreme Court, that was
previously unavailable; or
(ii) the factual predicate that could
not have been previously discovered through
the exercise of due diligence; and
(B) the facts underlying the claim would be
sufficient to establish by clear and
convincing evidence that but for
constitutional error, no reasonable
factfinder would have found the applicant
guilty of the underlying offense.
28 U.S.C. § 2254(e)(2).
The Court has reviewed the record to include Jacob’s
arguments and request for an evidentiary hearing to establish the
factual basis for his claims.

The Court finds that Jacob has

failed to meet the heavy burden entitling him to an evidentiary
hearing.

Accordingly, the Court will deny his request for an

evidentiary hearing.
IV. CONCLUSION
For the foregoing reasons, Jacob’s amended petition for
a writ of habeas corpus (Filing No. 136) will be denied in its
entirety.

Jacob’s objection (Filing No. 225) to the Court’s

March 13, 2017, order (Filing No. 222) will be overruled.
Jacob’s motion to certify questions to the Nebraska Supreme Court
(Filing No. 224) will be denied.

Finally, Jacob’s request for an

evidentiary hearing will be denied.

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CERTIFICATE OF APPEALABILITY
A petitioner cannot appeal an adverse ruling on his
petition for writ of habeas corpus under Section 2254 unless he
is granted a certificate of appealability.
§ 2253(c)(1); Fed. R. App. P. 2(b)(1).

28 U.S.C.

A certificate of

appealability cannot be granted unless the petitioner “has made a
substantial showing of the denial of a constitutional right.”
U.S.C. § 2253(c)(2).

28

To make such a showing, “[t]he petitioner

must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or
wrong.”

Slack v. Daniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 146

L. Ed. 2d 542 (2000).
Jacob has failed to make a substantial showing of the
denial of a constitutional right.

The Court is not persuaded

that the issues raised in Jacob’s petition are debatable among
reasonable jurists, that a court could resolve the issues
differently, or that the issues deserve further proceedings.
Accordingly, a certificate of appealability will not be issued in
this case.

A separate order will be entered herein in accordance

with this memorandum opinion.
DATED this 2nd day of June, 2017.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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