Smith v. Britten

Filing 12

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: Smith's Petition (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 to pro se party)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GERALD T. SMITH,
Petitioner,
v.
FRED BRITTEN,
Respondent.

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4:11CV3069

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner Gerald T. Smith’s (“Smith” or
“Petitioner”) Petition for Writ of Habeas Corpus. (Filing No. 1.) Liberally
construing the allegations of Smith’s Petition, Smith argues that he is entitled to writ
of habeas corpus based on the following claims:
Claim One:

Petitioner was denied due process of law in violation
of the Fourteenth Amendment because (1) the trial
court did not have subject matter jurisdiction; (2)
Petitioner was not made aware of his right to a jury
trial, his right to confront witnesses against him, or
his privilege against self incrimination; and (3)
Petitioner was not examined for mental illness prior
to trial.

Claim Two:

Petitioner was denied the effective assistance of
counsel in violation of the Sixth Amendment
because his trial counsel (1) did not interview
witnesses that would have given beneficial
testimony on behalf of Petitioner; (2) did not
investigate or present an insanity defense; (3) did
not seek to quash the amended charges because they
were improperly presented; and (4) did not object to
the trial court’s jurisdiction.

Claim Three:

Petitioner was denied the effective assistance of
counsel in violation of the Sixth Amendment
because his appellate counsel did not preserve
Claims One and Two on appeal.

(Filing No. 5 at CM/ECF pp. 1-2.) For the reasons set forth below, Smith’s Petition
is dismissed with prejudice.
I. BACKGROUND
A.

Smith’s Conviction and Direct Appeal

On February 3, 2009, Smith pled no contest to the charge of attempted use of
a firearm to commit a felony, and pled guilty to the charge of second-degree domestic
assault. (Filing No. 7-2, Attach. 2, at CM/ECF p. 8.) The Butler County District
Court sentenced Smith to not less than 16 nor more than 20 years on the firearm
charge, and not less than 2 nor more than 5 years on the assault charge. (Filing No.
7-4, Attach. 4, at CM/ECF p. 20.) The district court ordered that the sentences be
served consecutively. Id.
Smith timely appealed his sentences to the Nebraska Court of Appeals, arguing
only that the trial court had imposed excessive sentences. (Id. at CM/ECF p. 27.)
The Nebraska Court of Appeals summarily affirmed the district court’s order. (Filing
No. 7-7, Attach. 7, at CM/ECF p. 2.) Smith did not petition the Nebraska Supreme
Court for further review. (See id.)
B.

Smith’s Post-Conviction Motion and Appeal

Smith filed a motion for post-conviction relief (“post-conviction motion”) in
the Butler County District Court on August 6, 2009. (Filing No. 7-5, Attach. 5, at
CM/ECF p. 14.) On February 23, 2010, the Butler County District Court entered an
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order granting an evidentiary hearing on only one of the issues presented in Smith’s
post-conviction motion—that trial counsel was ineffective for failing to raise the
issue of Smith’s competency in the trial court. (Id. at CM/ECF p. 53.) Smith did not
appeal this order to the Nebraska Court of Appeals. See State v. Poindexter, 766
N.W.2d 391, 403 (Neb. 2009) (reiterating that an order granting an evidentiary
hearing on some issues presented in a post-conviction motion but denying a hearing
on others is a final and appealable order). On August 27, 2010, the district court held
an evidentiary hearing on the one issue, and on September 29, 2010, it denied postconviction relief. (Filing No. 7-5, Attach. 5, at CM/ECF pp. 56-60.)
Smith timely appealed the September 29, 2010, denial of post-conviction relief
to the Nebraska Court of Appeals, which summarily affirmed the district court’s
decision. (Filing No. 7-7, Attach. 7, at CM/ECF p. 5.) Smith sought further relief
from the Nebraska Supreme Court in a petition for further review, which the
Nebraska Supreme Court denied. (Id. at CM/ECF p. 5.)
C.

Smith’s Petition for Writ of Habeas Corpus

On May 6, 2011, Smith timely filed his Petition in this court. (Filing No. 1.)
He filed a Brief in support of his Petition on July 21, 2011. (Filing No. 11.) In
response to Smith’s Petition, Respondent filed an Answer, two Briefs, and the
relevant State Court Records. (Filing Nos. 7, 8, 9, and 10.) In light of these filings,
the court deems this matter fully submitted.
II. STANDARD OF REVIEW
A.

Standard of Review 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
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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.” 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. 529 U.S. at 405.
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).
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 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.” 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).
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,131 S. Ct. 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. However, this high degree of deference only
applies where a claim has been adjudicated on the merits by the state court. See
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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. 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 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
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.

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B.

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

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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.
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
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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).
III. DISCUSSION
A.

Procedurally Defaulted Claims
1.

Claim One

Smith did not raise any part of Claim One on direct appeal. Indeed, the only
claim Smith raised on direct appeal was that the court erred in imposing excessive
sentences. (Filing No. 7-4, Attach. 4, at CM/ECF p. 27.) Smith raised Claim One in
his post-conviction motion, but the Butler County District Court determined that the
claim was procedurally barred because Smith had not raised it on direct appeal.
(Filing No. 7-5, Attach. 5, at CM/ECF pp. 52-53.) See Hall, 646 N.W.2d at 579 ( “A
motion for postconviction relief cannot be used to secure review of issues which were
or could have been litigated on direct appeal.”). Accordingly, Claim One is
procedurally defaulted because Smith failed to follow applicable procedural rules in
presenting the claim in the Nebraska state courts, and also because he cannot now
raise the claim in a post-conviction motion. See Id.
2.

Claim Two (Parts 1, 3, and 4) and Claim Three

Claim Two, Parts 1, 3, and 4, and Claim Three relate to the alleged ineffective
assistance of Smith’s trial and appellate counsel. Smith’s first opportunity to raise
these claims was in his post-conviction motion because Smith was represented by the
same attorney at the trial-court level and on direct appeal. See State v. Dunster, 769
N.W.2d 401, 410-411 (Neb. 2009) (holding that claims of ineffective assistance of
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counsel raised on direct appeal by the same counsel who represented the defendant
at trial are premature and will not be addressed on direct appeal). As Respondent
points out in his brief, these claims are procedurally defaulted because Smith did not
appeal the Butler County District Court’s order denying an evidentiary hearing on the
claims.
In Nebraska, an order granting an evidentiary hearing on some issues presented
in a post-conviction motion but denying a hearing on others is a final order.
Poindexter, 766 N.W.2d at 403. In other words, “an order denying an evidentiary
hearing on a postconviction claim is a final judgment as to such a claim.” Id. In
order to vest an appellate court with jurisdiction, the notice of appeal must be filed
within 30 days of the entry of the final order. State v. Trevino, 556 N.W.2d 638, 640
(Neb. 1996).
Here, Smith arguably raised Claim Two, Parts 1, 3, and 4, and Claim Three in
his post-conviction motion. However, the court denied an evidentiary hearing on
these claims on February 23, 2010, while granting an evidentiary hearing on one
separate issue—that trial counsel was ineffective for failing to raise the issue of
Smith’s competency in the trial court. (Filing No. 7-5, Attach. 5, at CM/ECF p. 53.)
Smith did not appeal the district court’s February 23, 2010, order to the Nebraska
Court of Appeals. As such, the Nebraska state courts lacked jurisdiction over those
claims when Smith later–arguably–raised them in his brief to the Nebraska Court of
Appeals, and his petition for further review to the Nebraska Supreme Court.
See Poindexter, 766 N.W.2d at 403 (holding that it lacked jurisdiction over claims
that were not appealed within 30 days of the district court’s granting of an evidentiary
hearing on some issues but denial on others). Stated another way, the only claim that
Smith fairly presented to the Nebraska state courts following the district court’s
denial of post-conviction relief was Smith’s claim that trial counsel was ineffective
for failing to raise the issue of Smith’s competency in the trial court.

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Smith did not present Claim Two, Parts 1, 3, and 4, and Claim Three in “one
complete round” in the Nebraska state courts, as required by 28 U.S.C. § 2254(b)(1).
Furthermore, he cannot now raise the claims in a successive motion for postconviction relief. See Ortiz, 670 N.W.2d at 792. As such, they are procedurally
defaulted.
3.

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.1 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
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.”).
Here, with respect to the existence of cause and prejudice, Smith states only
that “[c]ause is established by the failure of his counsel on direct appeal to raise and
preserve the federal constitutional issues central to defendant’s case.” (Filing No. 11
at CM/ECF p. 41.) While ineffective assistance of counsel may constitute “cause”
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Smith has not argued that the court’s failure to consider Claims One, Two, and
Three will result in a fundamental miscarriage of justice. Regardless, in order for
Smith to invoke the fundamental-miscarriage-of-justice exception, he would have to
“present new evidence that affirmatively demonstrates that he is innocent of the crime
for which he was convicted.” Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006). He
has not done so.
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in some circumstances, “[n]ot just any deficiency in counsel’s performance will do.”
Edwards v. Carpenter, 529 U.S. 446, 452 (2000). Rather, “the assistance must have
been so ineffective as to violate the United States Constitution. In other words,
ineffective assistance of counsel adequate to establish cause for the procedural default
of some other constitutional claim is itself an independent constitutional claim” which
must be presented to the state courts. Id. (citation omitted).
The Butler County District Court considered and rejected Smith’s arguments
that his trial/appellate counsel was ineffective (filing no. 7-5, attach. 5, at CM/ECF
pp. 53-60), and this court must defer to the district court’s determination.
Furthermore, Smith offers no facts or argument to suggest that he was prejudiced by
counsel’s failure to raise his claims on direct appeal. As such, Claim One, Claim Two
(Parts 1, 3, and 4) and Claim Three are dismissed.
B.

Claim Two, Part 2

Liberally construed, Smith alleges in Claim Two, Part 2 that his counsel was
ineffective for failing to raise the issue of Smith’s competency at the trial-court level
and on direct appeal. (Filing No. 1 at CM/ECF pp. 22-24.) As set forth below, the
Nebraska state courts considered and rejected this claim. The Butler County District
Court addressed this claim on the merits under the two-pronged standard of
Strickland v. Washington, 466 U.S. 668 (1984).
1.

Strickland Standard

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 (8th Cir. 1991).

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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. 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). Further, as set forth in Strickland, counsel’s “strategic
choices made after thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable” in a later habeas corpus action. 466 U.S. at
690.
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:

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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.
2.

State Court Findings

The Butler County District Court rejected Smith’s argument that counsel was
ineffective for failing to raise the issue of Smith’s competency. (Filing No. 7-5,
Attach. 5, at CM/ECF pp. 56-60.) It held an evidentiary hearing on the issue in which
both Smith and Smith’s trial/appellate counsel testified. (Filing No. 7-3, Attach. 3,
at CM/ECF pp. 1-91.) In rejecting Smith’s claim, it stated the following:
In this case, defense counsel testified that he had known
Defendant prior to the filing of this case. The record shows that counsel
had many conversations with Defendant concerning the charges, the
defenses and the plea agreement. The record demonstrates that the
Defendant understood the nature of the proceedings against him,
comprehended his own position in references to those charges and was
able to assist counsel in the formulation of his defense. The record also
shows that the Defendant affirmatively stated that he understood the
proceedings at the time he entered his plea. There is nothing in the
record to suggest that either defense counsel or the court should have
had any doubts about Defendant’s competency. Defendant has failed to

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sustain h[is] burden of proof that counsel was ineffective in failing to
request a competency hearing.
(Filing No. 7-5, Attach. 5, at CM/ECF p. 58.)
Smith appealed the district court’s order to the Nebraska Court of Appeals,
which summarily affirmed the district court’s decision. (Filing No. 7-7, Attach. 7, at
CM/ECF p. 5.) Smith sought further relief from the Nebraska Supreme Court in a
petition for further review, which the Nebraska Supreme Court denied. (Filing No.
7-7, Attach. 7, at CM/ECF p. 5.)
3.

Deference

The foregoing findings of fact and conclusions of law regarding Claim Two,
Part 2 are entitled to deference under the statutory standard of review that applies to
factual and legal conclusions reached by the state courts. The Nebraska state courts
reviewed the evidence and determined, based on Strickland and other federal and
state law, that Smith’s trial/appellate counsel’s performance was not deficient. The
court agrees.
The court has carefully reviewed the record in this matter and 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). Smith has not submitted any evidence, let alone clear and convincing
evidence, that the Butler County District Court 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 on this issue because the Nebraska state courts correctly applied Strickland
and other federal law.

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IT IS THEREFORE ORDERED that: Smith’s Petition (filing no. 1) is
dismissed with prejudice. A separate judgment will be entered in accordance with
this Memorandum and Order.
DATED this 1st day of November, 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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