Banks v. Bakewell et al

Filing 67

MEMORANDUM OPINION - Banks has failed to make a substantial showing of the denial of a constitutional right. The Court is not persuaded that the issues raised in Banks' 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 be not 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) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ANTONIO BANKS,

)
)
Petitioner,
)
)
v.
)
)
SCOTT FRAKES, Director of
)
the Nebraska Department of
)
Corrections,
)
)
Defendant.
)
______________________________)

4:10CV3162

MEMORANDUM OPINION

This matter is before the Court on the petitioner,
Antonio Banks’ (“Banks” or “petitioner”) amended petition for a
writ of habeas corpus (Filing No. 54).

Liberally construed,

Banks argues he is entitled to a writ of habeas corpus based on
the following claims:
Claim One:

petitioner was denied due process of law in

violation of the Sixth and Fourteenth Amendments because the
Nebraska state trial court (1) refused petitioner’s request to
excuse several jurors for cause; (2) denied petitioner’s request
for a change of venue; (3) failed to properly instruct the jury
regarding lesser included offenses, petitioner’s defenses, and
witness credibility determinations which negatively affected the
jury’s “fact finding;” (4) prevented petitioner from cross
examining witnesses regarding drug use; (5) inappropriately
allowed the State to amend the charges against petitioner; and

(6) failed to sustain petitioner’s motion for directed verdict
even though the evidence against petitioner was insufficient.
See id.
Claim Two: petitioner was denied the effective
assistance of counsel because his trial and appellate counsel
failed to:

(1) investigate and call witnesses in support of a

self-defense theory; (2) hire an investigator to assist in
defense strategy; (3) pursue and request a jury instruction “on
self-defense;” and (4) assert that jury selection “was
unconstitutionally tainted” because qualified jurors were
excluded on the basis of race.

See id.

The respondent, Scott Frakes (“Frakes” or “respondent”)
filed an answer to the amended habeas petition (Filing No. 63) as
well as a brief in support of his answer (Filing No. 64).

After

a thorough review of the petition, the respondent’s answer and
supporting brief, and the applicable law, the Court will deny
Banks’ petition for a writ of habeas corpus and finds as follows.
BACKGROUND AND PROCEDURAL HISTORY
A jury found “petitioner guilty of first degree murder
and use of a firearm to commit a felony” on March 9, 2007.
(Filing No. 54 at 4).

Banks was sentenced “to a term of life

imprisonment . . . for first degree murder and to a consecutive
term of not less than twenty years, nor more than thirty years
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. . . for the use of a firearm to commit a felony.”
5).

(Id. at 4-

Petitioner appealed his conviction and sentence.

On direct

appeal, the Nebraska Supreme Court affirmed both Banks’
conviction and sentence after discussing and analyzing each of
petitioner’s assignments of error.

See State v. Banks, 771

N.W.2d 75 (Neb. 2009).
On August 20, 2010, Banks filed his first petition for
a writ of habeas corpus in federal court (Filing No. 1).

On

September 2, 2011, Judge Bataillon granted petitioner’s motion
for a stay and abeyance giving Banks the opportunity to return to
the Nebraska state courts and exhaust his unexhausted claims in a
state postconviction setting (Filing No. 27).

Following the

conclusion of Banks’ postconviction proceedings, Judge Bataillon
lifted the stay and abeyance and petitioner filed an amended
petition on August 12, 2015 (Filing No. 54).

On October 15,

2015, Judge Bataillon ordered respondent to file either a motion
for summary judgment and accompanying brief or to produce the
state court records in support of an answer (Filing No. 55).
Respondent thereafter submitted his designation of state court
records in support of his answer (Filing No. 58).

On February 5,

2016, respondent filed his answer to the amended petition and a
brief in support thereof (Filing Nos. 63 and 64).

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On March 3,

2016, this case was reassigned to the undersigned for disposition
(Filing No. 66).
LAW
A. Exhaustion Requirement
As set forth in 28 U.S.C. § 2254:
(b)(1) An application for a writ of
habeas corpus on behalf of a person
in custody pursuant to the judgment
of a State court shall not be
granted unless it appears that (A) the applicant has exhausted the
remedies available in the courts of
the State; or
(B)(i) there is an absence of
available State corrective process;
or
(ii) circumstances exist that
render such process ineffective to
protect the rights of the
applicant.
28 U.S.C. § 2254(b)(1).
The United States Supreme Court has explained the
habeas exhaustion requirement as follows:
Because the exhaustion doctrine is
designed to give the state courts a
full and fair opportunity to
resolve federal constitutional
claims before those claims are
presented to the federal courts
. . . state prisoners must give the
state courts one full opportunity
to resolve any constitutional
issues by invoking one complete
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round of the State's established
appellate review process.
O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144
L. Ed. 2d 1 (1999).

A state prisoner must therefore present the

substance of each federal constitutional claim to the state
courts before seeking federal habeas corpus relief.

In Nebraska,

"one complete round" ordinarily means that each Section 2254
claim must have been presented in an appeal to the Nebraska Court
of Appeals, and then in a petition for further review to the
Nebraska Supreme Court if the Court of Appeals rules against the
petitioner.
2005).

See Akins v. Kenney, 410 F.3d 451, 454-55 (8th Cir.

Moreover, where
no state court remedy is available
for the unexhausted claim -- that
is, if resort to the state courts
would be futile -- then the
exhaustion requirement in § 2254(b)
is satisfied, but the failure to
exhaust “provides an independent
and adequate state-law ground for
the conviction and sentence, and
thus prevents federal habeas corpus
review of the defaulted claim,
unless the petitioner can
demonstrate cause and prejudice for
the default."

Armstrong v. Iowa, 418 F.3d 924, 926 (8th Cir. 2005) (quoting
Gray v. Netherland, 518 U.S. 152, 162, 116 S. Ct. 2074, 135 L.
Ed. 2d 457 (1996)).

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B. Standard Under 28 U.S.C. § 2254(d)
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 both as to the law and
the facts.

See 28 U.S.C. § 2254(d).

Section 2254(d)(1) states

that a federal court may grant a writ of habeas corpus if the
state 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."
§ 2254(d)(1).

28 U.S.C.

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 that Court's cases despite confronting
indistinguishable facts.

Williams v. Taylor, 529 U.S. 362, 405-

06, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000).

Further, "it is

not enough for [a federal 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) (internal citations omitted).
With regard to the deference owed to factual findings
of a state court's decision, Section 2254(d)(2) states that a
federal court may grant a writ of habeas corpus if a state court
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proceeding "resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding."
§ 2254(d)(2).

28 U.S.C.

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).

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, 102, 131 S. Ct. 770, 178 L.
Ed. 2d 624 (2011).

The deference due 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."

Id.

However, 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 (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.
claim must have been 'adjudicated on the merits' in state

The

court.").

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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 a 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."

Id.

DISCUSSION
With respect to Claim One, the Court finds that the
Nebraska Supreme Court made specific merit determinations as to
each and every one of petitioner’s assignments of error.
Accordingly, Claim One was adjudicated on the merits.
771 N.W.2d 75 at 86-103.

See Banks,

Applying AEDPA’s extremely stringent

standard to Claim One, the Court concludes that the Nebraska
Supreme Court’s decision was not “contrary to, or . . . an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.”
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28 U.S.C.

§ 2254(d)(1).

The Court also finds that the Nebraska Supreme

Court’s factual findings were not unreasonable.

In addition,

Banks has failed to rebut the factual determinations made by the
Nebraska Supreme Court by clear and convincing evidence.
Accordingly, the Court will deny Banks’ petition for a writ of
habeas corpus as to each allegation contained in Claim One.
With respect to Claim Two, the Court concludes that all
but one of the allegations therein are procedurally defaulted.
After filing his original habeas petition, Banks filed a pro se
motion for postconviction relief in Lancaster District Court.
See State v. Banks, 856 N.W.2d 305, 307-08 (Nebraska 2014).
Banks alleged “his trial counsel was ineffective” based on the
same allegations contained in Claim Two of his amended petition
for a writ of habeas corpus.

Banks, 856 N.W.2d at 307-08; see

also Filing No. 54.
The Lancaster District Court “overruled in part and in
part sustained the State’s motion [to deny an evidentiary hearing
and overrule Banks’ motion for postconviction relief].”
856 N.W.2d at 308.

Banks,

The district court concluded “that Banks’

first ineffective assistance of counsel claim regarding the
alleged failure to conduct a reasonable pretrial investigation
was ‘inadequately pled,’ because Banks did not ‘identify the
witness or other exculpatory evidence that would have been
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discovered had his trial counsel performed the pretrial
investigation Banks allege[d] was omitted.’”

Id.

The district

court also determined Banks “was not entitled to relief under any
of the remaining ineffective assistance of counsel claims.”

Id.

The district court sustained the State’s motion to deny an
evidentiary hearing and overruled Banks’ motion for
postconviction relief with respect to all claims except the one
Banks had inadequately pled.
that ruling.

Id.

Banks failed to timely appeal

Id.

Banks’ failure to appeal the Lancaster District Court’s
March 23, 2012, order makes all but one of the allegations
contained in Claim Two procedurally defaulted.

See Armstrong v.

Iowa, 418 F.3d 924, 926 (8th Cir. 2005) (stating that procedural
default provides “‘an independent and adequate state-law ground
for the conviction and sentence, and thus prevents federal habeas
corpus review of the defaulted claim[s], unless the petitioner
can demonstrate cause and prejudice for the default.’”) (quoting
Gray v. Netherland, 518 U.S. 152, 162, 116 S. Ct. 2074, 135 L.
Ed. 2d 457 (1996) (additional citations omitted)).

A thorough

review of the record before the Court reveals no cause or
prejudice for Banks’ failure to appeal the Lancaster District
Court’s March 23, 2012 order.

Therefore, the Court concludes

allegations two through four of Claim Two are procedurally
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defaulted.

The Court will thus deny Banks’ petition for a writ

of habeas corpus as to those allegations.
The Lancaster District Court provided Banks leave to
amend his pro se motion for postconviction relief.
N.W.2d at 308.

Banks, 856

After Banks amended his motion, the district

court, on August 5, 2013, “sustained the State’s motion to deny
an evidentiary hearing and overruled Banks’ amended motion for
postconviction relief.”

Id.

court’s August 5, 2013, order.

Banks timely appealed the district
Id. at 309.

On December 5, 2014, the Nebraska Supreme Court
affirmed the district court’s ruling denying “an evidentiary
hearing on Banks’ ineffective assistance of counsel claim
relating to the pretrial investigation.”

Id. at 309, 310.

The

Nebraska Supreme Court reasoned “Banks was not entitled to an
evidentiary hearing on his ineffective assistance counsel claim
relating to the pretrial investigation, because he alleged only
conclusions of fact or law.”

Id. at 309.

As with the

allegations contained in Claim One, Banks’ ineffective assistance
of counsel claim relating to the pretrial investigation was
determined on the merits by the Nebraska Supreme Court.
at 309-10.

See id.

Thus, the stringent standard provided under AEDPA’s

Section 2254(d) applies.

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The Court finds that the Nebraska Supreme Court’s
decision was not contrary to, or an unreasonable application of
clearly established federal law as determined by the United
States Supreme Court.

The Court also finds that the Nebraska

Supreme Court’s factual findings were not unreasonable.
Furthermore, Banks has failed to rebut the factual determinations
made by the Nebraska Supreme Court by clear and convincing
evidence.

The Court will deny Banks’ petition for a writ of

habeas corpus as to Banks’ ineffective assistance of counsel
claim relating to the pretrial investigation.

Accordingly,

Banks’ petition for a writ of habeas corpus will be denied in its
entirety.
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. 22(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

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wrong.”

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

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

The Court is not persuaded

that the issues raised in Banks’ 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 be not issued in
this case.

A separate order will be entered herein in accordance

with this memorandum opinion.
DATED this 15th day of July, 2016.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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