Baker v. Houston

Filing 18

MEMORANDUM AND ORDER - Petitioner Henry Eugene Baker's Petition for Writ of Habeas Corpus (filing no. 1 ) is dismissed with prejudice. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Chief Judge Joseph F. Bataillon. (Copy mailed/e-mailed to pro se party) (AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HENRY EUGENE BAKER,
Petitioner,
v.
ROBERT P. HOUSTON, Director
NDCS,
Respondent.

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4:10CV3228

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner Henry Eugene Baker’s (“Baker”)
Petition for Writ of Habeas Corpus (“Petition”). (Filing No. 1.) Respondent filed an
Answer (filing no. 10), Brief on the merits of the Petition (filing no. 11), and relevant
State Court Records (filing no. 9). Baker filed a Brief in response to the Answer.
(Filing No. 13.) This matter is therefore deemed fully submitted.
Liberally construing the allegations of Baker’s Petition, he argues that he is
entitled to a writ of habeas corpus because:
Claim One:

Petitioner was denied the effective assistance of counsel in
violation of the Sixth Amendment because his trial counsel
(1) forced the victim to identify Petitioner at deposition
even though she testified that “she had never seen
[Petitioner] before that day” and failed to “bring this fact”
to the trial court’s attention; and (2) failed to file any
motion to suppress Petitioner’s statement.

Claim Two:

Petitioner was denied due process of law in violation of the
Sixth and Fourteenth Amendments because the trial court
did not consider (1) the inconsistencies between witness
and victim testimony; (2) that Petitioner was “under the
influence of medication” at the time of his questioning; (3)
that the State used “dismissed or unfiled” cases to get the

“maximum sentence” for Petitioner; (4) that there was no
physical evidence linking Petitioner to the crime; (5) that
the enhancement hearing request was untimely, leading to
an excessive sentence for Petitioner; (6) that the
prosecutors engaged in prosecutorial misconduct by
providing incomplete discovery documents; and (7) that
Petitioner was incarcerated at the time of the crime and
therefore could not have committed the crime.
(Filing No. 1, together, the “Habeas Claims.”)
BACKGROUND
I.

Baker’s Conviction and Direct Appeal

On July 21, 2006, after a bench trial, a Platte County, Nebraska District Court
judge found Baker guilty of one count of first degree sexual assault. (Filing No. 9-1,
Attach. 1, at CM/ECF pp. 22-23.)1 The Platte County District Court thereafter
determined that Baker was a habitual criminal under Nebraska law and sentenced him
to serve a prison term of 25-40 years on that conviction. (Id. at CM/ECF pp. 24-40.)
Baker filed a timely direct appeal arguing that the evidence was insufficient to
support the verdict and that the Platte County District Court erred in reconsidering
its habitual criminal determination because the State of Nebraska did not timely file
its motion to reconsider. (Id. at CM/ECF pp. 44-56.) Baker did not raise any of his
Habeas Claims on direct appeal. (Id.) The Nebraska Court of Appeals summarily
affirmed the convictions and sentences on July 23, 2007. (Filing No. 9-5, Attach. 5,
at CM/ECF p. 2.) Baker filed a petition for further review with the Nebraska
Supreme Court, which denied relief on August 29, 2007. (Id.)

1

The Platte County District Court acquitted Baker on a second count of first
degree sexual assault. (Filing No. 9-1, Attach. 1, at CM/ECF pp. 22-23.)
2

II.

Baker’s Amended Post Conviction Motion and Appeal

On June 20, 2008, Baker filed a verified motion for postconviction relief in the
Platte County District Court. Baker, through counsel, filed an amended motion for
postconviction relief on January 26, 2009, through counsel (the “Amended Post
Conviction Motion”)2. (Filing No. 9-3, Attach. 3, at CM/ECF pp. 5, 38-40.)
Liberally construed, the Amended Post Conviction Motion set forth various claims,
including Claim One, Part 2.3 (Id.) However, the Amended Post Conviction Motion
did not raise any other Habeas Claim. (Id.) The Platte County District Court held an
evidentiary hearing and issued a detailed opinion denying relief on all claims asserted
in the Amended Post Conviction Motion. (Id. at CM/ECF pp. 42-49.) Baker filed a
timely appeal of the denial of post conviction relief. On appeal, Baker assigned
several errors, encompassing Claim One, Parts 1 and 2, but no other Habeas Claim.
(Id. at CM/ECF pp. 55-69; Filing No. 9-4, Attach. 4, at CM/ECF pp. 1-12.) On
August 12, 2010, the Nebraska Court of Appeals affirmed the Platte County District
Court’s denial of post conviction relief, also issuing a detailed opinion. (Filing No.
9-4, Attach. 4, at CM/ECF pp. 44-58.) Baker filed a petition for further review with
the Nebraska Supreme Court, which also denied relief to Baker on October 14, 2010,
without issuing an opinion. (Filing No. 9-5, Attach. 5, at CM/ECF p. 5.) On
November 24, 2010, Baker timely filed his Petition in this court. (Filing No. 1.)

2

The court assumes from the record that the Platte County District Court treated
the Amended Post Conviction Motion as superseding the original motion, as it
considered only claims raised through counsel in the Amended Post Conviction
Motion. (Filing No. 9-3, Attach. 3, at CM/ECF pp. 42-49.)
3

Although not raised in the pleadings, Baker asserted Claim One, Part 2 orally
during the evidentiary hearing. (Filing No. 9-3, Attach. 3, at CM/ECF pp. 43-44.)
The Platte County District Court treated Claim One, Part 2 as properly raised during
the hearing and, “for completeness . . . address[ed] this issue regardless of the fact it
was not specifically pled in Baker’s amended motion.” (Id. at CM/ECF p. 44.)
3

ANALYSIS
I.

Claim One, Part 2
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 both 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 the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(2). Additionally, 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).
Further, section 2254(d)(1) states that a federal court may not grant a writ of
habeas corpus unless 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.” 28 U.S.C. § 2254(d)(1). As explained by the
Supreme Court in Williams v. Taylor, 529 U.S. 362 (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 that Court’s cases
despite confronting indistinguishable facts. Id. at 399. Further, “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 recently noted, “[i]f this standard is difficult to meet,
that is because it was meant to be.” Harrington v. Richter, ___ U.S. ___, 131 S. Ct.
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770, 786 (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. In
short, “[i]t bears repeating that even a strong case for relief does not mean the state
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 recently 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 well-articulated or even
a correct decision by a state court. . . . Accordingly, the postconviction
trial court’s discussion of counsel’s performance–combined with its
express determination that the ineffective-assistance claim as a whole
lacked merit–plainly suffices as an adjudication on the merits under
AEDPA.
Worthington v. Roper, 631 F.3d 487, 496-97 (8th Cir. 2011) (quotations and citations
omitted). The court also determined that a federal district 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.” Id. 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. The Supreme Court agrees, recently
stating:
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
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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, 131 S. Ct. at 784.
B.

The Strickland Standard

Claim One, Part 2, the only Habeas Claim adjudicated on the merits by the
Nebraska state courts, relates to the ineffective assistance of counsel. Claims of
ineffective assistance of counsel are reviewed under the two-pronged standard of
Strickland v. Washington, 466 U.S. 668, 694 (1984). Strickland requires that the
petitioner demonstrate both that his counsel’s performance was deficient, and that
such deficient performance prejudiced the petitioner’s defense. Id. at 687; see also
Bryson v. United States, 268 F.3d 560 (8th Cir. 2001); Williamson v. Jones, 936 F.2d
1000, 1004 (8th Cir. 1991).
The first prong of the Strickland test requires that the petitioner demonstrate
that his attorney failed to provide reasonably effective assistance. Strickland, 466
U.S. at 687-88. In conducting such a review the courts “indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. at 689. The second prong requires the petitioner to demonstrate “a
reasonable probability that but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694; see also Hubbeling v. United
States, 288 F.3d 363, 365 (8th Cir. 2002). A court need not address the
reasonableness of the attorney’s skills and diligence if the movant cannot prove
prejudice under the second prong of this test. United States v. Apfel, 97 F.3d 1074,
1076 (8th Cir. 1996) (quoting Cheek v. United States, 858 F.2d 1330, 1336 (8th Cir.
1988)). Further, as set forth in Strickland, counsel’s “strategic choices made after
thorough investigation are virtually unchallengeable” in a later habeas corpus action.
466 U.S. at 689.

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Additionally, the Supreme Court has very recently emphasized that the
deference due the state courts applies with vigor to decisions involving ineffective
assistance of counsel claims. Knowles v. Mirzayance, 129 S. Ct. 1411, 1418-20
(2009) (reversing the Ninth Circuit Court of Appeals and holding that the decision
of the California Court of Appeals, that the defendant was not deprived of effective
assistance of counsel when his attorney recommended withdrawing his insanity
defense during second phase of trial, was not contrary to or an unreasonable
application of clearly established federal law; also concluding, among other things,
that there was no reasonable probability that, but for counsel’s alleged unprofessional
error, the result of the proceeding would have been different).
In Knowles, the Justices stressed that under the Strickland standard, the state
courts have a great deal of “latitude” and “leeway,” which presents a “substantially
higher threshold” for a federal habeas petitioner to overcome. As stated in Knowles:
The question “is not whether a federal court believes the state court’s
determination” under the Strickland standard “was incorrect but whether
that determination was unreasonable-a substantially higher threshold.”
Schriro, supra, at 473, 127 S. Ct. 1933. And, because the Strickland
standard is a general standard, a state court has even more latitude to
reasonably determine that a defendant has not satisfied that standard.
See Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158
L.Ed.2d 938 (2004) (“[E]valuating whether a rule application was
unreasonable requires considering the rule’s specificity. The more
general the rule, the more leeway courts have in reaching outcomes in
case-by-case determinations”).
Id. at 1420.
C.

Baker’s Claim One, Part 2
1.

State Court Findings

For his Claim One, Part 2, Baker argues that his trial counsel was ineffective
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because he failed to file a motion to suppress statements Baker made to police prior
to his arrest. (Filing No. 1.) Baker raised Claim One, Part 2 in his Amended Post
Conviction Motion and appeal, and the Nebraska courts considered and rejected it.
The Platte County District Court applied Strickland and other precedent to Baker’s
Claim One, Part 2, and determined that the claim was without merit. (Filing No. 9-3,
Attach. 3, at CM/ECF pp. 43-44.) In particular, the Platte County District Court
found:
Here, no evidence was offered such that would establish Baker was in
custody during [police] questioning. To the contrary, the evidence
shows that Baker was not in custody when [police] questioned him and,
as such, the procedural safeguards established by Miranda were not
implicated. Thus, had trial counsel sought the suppression of Baker’s
statement, such a motion would have failed. There is no merit to
Baker’s contention that he was provided ineffective assistance of
counsel for failing to seek the suppression of the statement he made to
police.
(Id. at CM/ECF p. 44.)
Also applying Strickland and other state and federal law, the Nebraska Court
of Appeals affirmed the Platte County District Court’s denial of relief on Claim One,
Part 2. (Filing No. 9-4, Attach. 4, at CM/ECF pp. 53-54.) For its findings on this
issue, the Nebraska Court of Appeals summarized the facts surrounding Baker’s
police questioning as follow:
As stated previously, in analyzing whether a suspect/defendant
was in custody, there are both mitigating and aggravating circumstances
to consider. . . . The mitigating factors weighing against the existence of
custody are: (1) whether the suspect was informed at the time of
questioning that the questioning was voluntary, that the suspect was free
to leave or request the officers to do so, or that the suspect was not
considered under arrest; (2) whether the suspect possessed unrestrained
freedom of movement during questioning; or (3) whether the suspect
initiated contact with authorities or voluntarily acquiesced to official
requests to respond to questions. In the instant case, it appears that
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Baker voluntarily acquiesced to questioning by Investigator Strecker
when Strecker came to Baker’s apartment. Baker was not told that he
was free to leave or that he could request that the officers leave.
However, Baker was not restrained during questioning, he was not
placed under arrest, and he was in his own apartment.
The aggravating factors for the existence of custody: (1) whether
strong-arm tactics or deceptive stratagems were used during questioning,
(2) whether the atmosphere of the questioning was police dominated, or
(3) whether the suspect was placed under arrest at the termination of the
proceeding. In the instant case, there is no indication from the record
that strong-arm tactics or deceptive stratagems were used during
questioning, nor does it appear that the questioning was police
dominated. Baker was not placed under arrest at the termination of the
interrogation.
(Id. (citations omitted).) The Nebraska Court of Appeals weighed these facts and
determined:
Having considered all of the factors described in Rogers, we find that
Baker was not in custody at the time of his interrogation. Because Baker
was not in custody, the procedural safeguards of Miranda were not
implicated and a motion to suppress would have failed. Accordingly,
Baker was not prejudiced by trial counsel’s failure to file a motion to
suppress the statements he made to Strecker. This argument is without
merit.
(Id. at CM/ECF p. 54.)
2.

Deference

Respondent argues that the foregoing findings of fact and conclusions of law
regarding Claim One, Part 2 are entitled to deference under the statutory standard of
review that applies to factual and legal conclusions reached by the state courts.
Indeed, as set forth above, the court must grant substantial deference to the Nebraska
state court decisions. The court has carefully reviewed the record in this matter and

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finds that the Nebraska state court decisions are not “based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(2). Baker has not submitted any evidence, let
alone clear and convincing evidence, that the Platte County District Court or the
Nebraska Court of Appeals was incorrect in any of its factual determinations. 28
U.S.C. § 2254(e)(1). The grant of a writ of habeas corpus is not warranted here
because the Nebraska state courts correctly applied Strickland and other federal law.
In light of these findings, Baker’s Claim One, Part 2 is dismissed.
II.

Claim One, Part 1 and Claim Two
A.

Standards for Procedural Default

As set forth in 28 U.S.C. § 2254(b)(1):
(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)
(ii)

there is an absence of available State corrective process; or
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
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issues by invoking one complete round of the State’s established
appellate review process.
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). A state prisoner must therefore
“fairly present” the substance of each federal constitutional claim to the state courts
before seeking federal habeas relief. Id. at 844. In Nebraska, “one complete round”
ordinarily means that each § 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. See Akins v.
Kenney, 410 F.3d 451, 454-55 (8th Cir. 2005).
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 (1996)). Stated
another way, if a claim has not been presented to the Nebraska appellate courts and
is now barred from presentation, the claim is procedurally defaulted, not unexhausted.
Akins, 410 F.3d at 456 n. 1.
Under Nebraska law, “[a]n appellate court will not entertain a successive
motion for postconviction relief unless the motion affirmatively shows on its face that
the basis relied upon for relief was not available at the time the movant filed the prior
motion.” State v. Ortiz, 670 N.W.2d 788, 792 (Neb. 2003). Additionally, “[a] motion
for postconviction relief cannot be used to secure review of issues which were or
could have been litigated on direct appeal.” Hall v. State, 646 N.W.2d 572, 579 (Neb.
2002). In such circumstances, where a Nebraska state court rejects a claim on state
procedural grounds, and “issues a plain statement that it is rejecting petitioner’s
federal claim on state procedural grounds,” a federal habeas court is precluded from
“reaching the merits of the claim.” Shaddy v. Clarke, 890 F.2d 1016, 1018 (8th Cir.

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1989); see also Greer v. Minnesota, 493 F.3d 952, 957 (8th Cir. 2007) (reiterating
that “when a state court declined to address a prisoner’s federal claims because the
prisoner had failed to meet a state procedural requirement,” federal habeas is barred
because “[i]n such instances, the state prisoner forfeits his right to present his federal
claim through a federal habeas corpus petition”) (quotations omitted). However, the
state court procedural decision must “rest[] on independent and adequate state
procedural grounds.” Barnett v. Roper, 541 F.3d 804, 808 (8th Cir. 2008) (quotation
omitted). “A state procedural rule is adequate only if it is a firmly established and
regularly followed state practice.” Id. (quotation omitted). Even where a claim has
been procedurally defaulted, a petitioner is entitled to an opportunity to demonstrate
cause and prejudice to excuse the default. Akins, 410 F.3d at 456 n. 1.
B.

Baker’s Claim One, Part 1 and Claim Two

As set forth above, Baker pursued a direct appeal and raised two issues, but did
not raise any of his Habeas Claims. (Filing No. 9-1, Attach. 1, at CM/ECF pp. 4456.) However, Baker raised Claim One, Part 1 in his post conviction appeal, and the
Nebraska Court of Appeals rejected it, stating:
Baker argues that his trial counsel’s actions during the victim’s
deposition were ineffective assistance of counsel. However, this claim
was not asserted in Baker’s verified motion for postconviction relief and
it was not addressed by the district court in its disposition of that
motion. We decline to reach the issue, based upon the principle that an
appellate court will not consider as an assignment of error a question not
presented to the district court for disposition through a defendant’s
motion for postconviction relief. See State v. Watkins, 277 Neb. 428,
762 N. W. 2d 589 (2009).
(Filing No. 9-4, Attach. 4, at CM/ECF p. 47 (hyperlinks added).) The Nebraska
Nebraska Supreme Court rejected Baker’s petition for further review on this issue.
(Filing No. 9-5, Attach. 5, at CM/ECF p. 5.) In light of the Nebraska state courts’
“plain statement[s]” that they were rejecting Baker’s federal claim on independent
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and adequate state procedural grounds, this court is barred from addressing the merits
of Claim One, Part 1. Shaddy, 890 F.2d at 1018.
Additionally, Baker did not raise any portion of Claim Two in the Nebraska
state courts, either on direct appeal or in his Amended Post Conviction Motion or
appeal.4 Baker is now barred from doing so because he cannot submit a second
motion for post conviction relief where, as here, the basis for relief was clearly
available at the time of his direct appeal and Amended Post Conviction Motion. See
Ortiz, 670 N.W.2d at 792. As such, Claim One, Part 1 and Claim Two are
procedurally defaulted and the court cannot reach the merits of these claims unless
Baker demonstrates cause and prejudice excusing the default.
C.

Cause and Prejudice

To excuse a procedural default, a petitioner must demonstrate either cause for
the default and actual prejudice as a result of the alleged violation of federal law, or,
in rare cases, that failure to consider the claim will result in a fundamental
miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Although
there is no precise definition of what constitutes cause and prejudice, “the existence
of cause for a procedural default must ordinarily turn on whether the prisoner can
show that some objective factor external to the defense impeded counsel’s efforts to
4

It is clear from the record before the court that Claim Two is a claim for
violation of due process, and not a claim for ineffective assistance of counsel.
However, Baker may have raised a variation of portions of Claim Two as ineffective
assistance of counsel claims in the Nebraska state courts. Those ineffective of
assistance of counsel claims were adjudicated on the merits by the Nebraska state
courts and determined to be wholly “without merit.” (Filing No. 9-3, Attach. 3, at
CM/ECF pp. 42-49.) As set forth above, the court must give such findings by the
Nebraska state courts substantial deference. Thus, for the same reasons set forth
above regarding Claim One, Part 2, and to the extent Baker seeks review of Claim
Two as an ineffective assistance of counsel claim rather than a due process claim, it
is dismissed.
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comply with the State’s procedural rule.” Strickler v. Greene, 527 U.S. 263, 283 n.
24 (1999); see also Bell v. Attorney Gen. of the State of Iowa, 474 F.3d 558, 561 (8th
Cir. 2007) (“A cause is sufficient to excuse procedural default when it is external to
the petitioner, and not attributable to the petitioner.”).
The court has carefully reviewed Baker’s submissions in this matter. Liberally
construed, Baker argues that he raised all of his Habeas Claims in the Nebraska state
courts. (Filing No. 13.) Baker is simply incorrect. As set forth above, Baker did not
properly raise these Claims. Baker does not assert any other argument relating to
cause and prejudice which would excuse his procedural default.5
Although difficult to decipher, Baker states that this court has a “duty” to
review his Habeas Claims for “plain error.” (Filing No. 13 at CM/ECF p. 6.) Baker
misstates the law regarding “plain error” as it relates to procedurally defaulted claims.
It is true that, where a state court conducts a “plain error” review of a defaulted claim,
it may or may not “cure[] a procedural default.” Shelton v. Purkett, 563 F.3d 404, 408
(8th Cir. 2009) (noting, but not resolving, the “unfortunate” and “surprisingly
persistent” split of authority within the Eighth Circuit regarding this issue). However,
it is not a petitioner’s “plain error” argument which may cure a procedural default,
but a state court’s “plain error” review which may do so.
Indeed, even assuming that a plain error review cures a procedural default, that
argument has no effect here because the Nebraska courts did not conduct a “plain
error” review. There is simply nothing for this court to review, and this court “may
not simply conduct [its] own plain error review de novo.” Id. Thus, to the extent he
asserts it, Baker’s “plain error” argument lacks merit. In short, Baker has not

5

Baker does not argue that he is entitled to relief based on a “fundamental
miscarriage of justice” or because he is actually innocent. Regardless, the court has
independently reviewed the record in this matter and finds that the record does not
support such claims.
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submitted any argument or evidence which shows that he, or his counsel, were
objectively impeded from filing all of his claims in his direct appeal and in his
Amended Post Conviction Motion and appeal. Because Baker has not demonstrated
cause and prejudice to excuse his procedural default, Claim One, Part 1, and Claim
Two are dismissed.
IT IS THEREFORE ORDERED that:
1.
Petitioner Henry Eugene Baker’s Petition for Writ of Habeas Corpus
(filing no. 1) is dismissed with prejudice.
2.
A separate judgment will be entered in accordance with this
Memorandum and Order.
DATED this 11th day of May, 2011.
BY THE COURT:
s/ Joseph F. Bataillon
Chief United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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