Glassco v. Houston

Filing 23

MEMORANDUM AND ORDER regarding Petition for Writ of Habeas Corpus 1 .1. Glassco's Petition (Filing No. 1 ) is dismissed with prejudice. 2. A separate judgment will be entered in accordance with this Memorandum and Order. 3. All pending motions are denied as moot. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SCOTTY R. GLASSCO,
Petitioner,
v.
ROBERT HOUSTON, Director of
Department of Corrections,
Respondent.

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4:11CV3231

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner Scotty R. Glassco’s (“Petitioner”
or “Glassco”) Petition for Writ of Habeas Corpus (“Petition”).

(Filing No. 1.)

Liberally construing the allegations of Glassco’s Petition, Glassco argues he is entitled
to a writ of habeas corpus based on the following claims:
Claim One:

Petitioner was convicted in violation of his right to due
process because the Information charging him with being a
habitual criminal “did not contain sufficient detail” (set
forth in Petition as Ground 1).

Claim Two:

Petitioner was convicted in violation of his right to due
process because the trial court allowed the prosecution to
amend the Information after Petitioner had been found
guilty (set forth in Petition as Ground 2).

Claim Three:

Petitioner was convicted in violation of his right to due
process because the trial court “improperly assum[ed]
prosecution witnesses identified [P]etitioner in exhibits
introduced at trial” (set forth in Petition as Ground 4).

Claim Four:

Petitioner was convicted in violation of his right to due
process because the prosecution failed to produce proof

beyond a reasonable doubt of every element of the charged
offense (set forth in Petition as Ground 5).
Claim Five:

Petitioner was convicted in violation of the Fourth
Amendment because law enforcement officers (1) did not
have permission to search Petitioner’s vehicle (set forth in
Petition as Ground 3); and (2) exceeded their lawful
authority in obtaining photographs and surveillance video
(set forth in Petition as Ground 19).1

Claim Eight:

Petitioner received the ineffective assistance of counsel in
violation of the Sixth Amendment because his trial counsel
(1) failed to object to “photo evidence” (set forth in Petition
as Ground 10); (2) failed to effectively argue that Petitioner
had not consented to a search of his vehicle (set forth in
Petition as Ground 11); (3) failed to secure Sarah Mueller as
a witness (set forth in Petition as Ground 12); (4) failed to
object to the prosecution’s Brady violation (set forth in
Petition as Ground 13); (5) “violated the obligation to
[P]etitioner by producing detrimental evidence to the
prosecution” (set forth in Petition as Ground 13); (6) did not
properly argue for a directed verdict (set forth in Petition as
Ground 14); (7) failed to object to the trial court’s abuse of
discretion (set forth in Petition as Ground 15); (8) failed to
object to the Information charging Petitioner as a habitual
criminal (set forth in Petition as Ground 16); (9) improperly
pressured Petitioner into waiving his right to a jury trial (set
forth in Petition as Ground 17); (10) failed to impeach the

1

The court dismissed Claims Six and Seven on January 31, 2012, because the
claims were not cognizable in a federal court habeas action. (Filing No. 7 at CM/ECF
p. 4.)
2

State’s witnesses, including Elmer Myer, Duane Myer,
Sheriff Moore, and Deputy Monroe (set forth in Petition as
Ground 18); (11) did not challenge the legality of Deputy
Monroe’s arrest of Petitioner (set forth in Motion to
Supplement Petition); and (12) failed to move for Judge
Owens to recuse himself based on his extensive knowledge
of Petitioner’s criminal history (set forth in Motion to
Supplement Petition).
Claim Nine:

Petitioner received the ineffective assistance of counsel in
violation of the Sixth Amendment because his appellate
counsel (1) failed to argue that Petitioner’s trial counsel was
ineffective, despite being asked by Petitioner to do so (set
forth in Petition as Ground 8); (2) failed to argue that the
trial court had abused its discretion (set forth in Petition as
Ground 9); and (3) failed to argue that the evidence was
insufficient to support Petitioner’s conviction (set forth in
Petition as Ground 9).

(Filing No. 7 at CM/ECF pp. 1-3.) For the reasons set forth below, Glassco’s Petition
is dismissed with prejudice.
I. BACKGROUND
A.

Glassco’s Conviction and Direct Appeal
Glassco was convicted of burglary and misdemeanor theft in 2008 following a

bench trial in the Nance County District Court. (Filing No. 9-1 at CM/ECF pp. 44-45.)
The district court enhanced Glassco’s conviction pursuant to Nebraska’s habitual
criminal statute. (Id. at 61.) The Nebraska Court of Appeals reported the factual and
procedural background underlying Glassco’s conviction in State v. Glassco, No. A-083

837, 2009 WL 2342740 (Neb. Ct. App. Jul. 28, 2009) (“Glassco I”), and the court will
not repeat it here. (Opinion available at Filing No. 9-2 at CM/ECF pp. 70-77.)
Glassco timely appealed his conviction and sentence to the Nebraska Court of Appeals,
which affirmed the conviction and sentence in a detailed opinion. (Id.) Thereafter,
Glassco sought relief from the Nebraska Supreme Court in a petition for further
review, which the Nebraska Supreme Court denied. (Filing No. 9-4 at CM/ECF p. 2.)
B.

Glassco’s Post-Conviction Motion and Appeal
Glassco filed a pro se motion for post-conviction relief (“post-conviction

motion”) in the Nance County District Court on December 29, 2009. (Filing No. 9-3
at CM/ECF p. 26.) Thereafter, through counsel, he filed an amended post-conviction
motion on April 14, 2010. (Id. at CM/ECF p. 40.) The Nance County District Court
denied Glassco’s post-conviction motion on November 15, 2010. (Id. at CM/ECF p.
47.) Glassco timely appealed the denial to the Nebraska Court of Appeals, which
denied relief in a detailed opinion. See State v. Glassco, A-10-1197 (Neb. Ct. App.
Aug. 30, 2011) (“Glassco II”) (opinion available at Filing No. 9-3 at CM/ECF pp. 110118.) Thereafter, Glassco sought relief from the Nebraska Supreme Court in a petition
for further review, which the Nebraska Supreme Court denied. (Filing No. 9-4 at
CM/ECF p. 5.)
C.

Glassco’s Petition for Writ of Habeas Corpus
Glassco timely filed his Petition in this court on December 27, 2011. (Filing No.

1.) Glassco filed a Brief in support of his Petition. (Filing No. 20.) In response to
Glassco’s Petition, Respondent filed an Answer, two Briefs, and the relevant state
court records. (Filing Nos. 9, 10, 11, and 21.) In light of these filings, the court deems
this matter fully submitted.

4

II. DISCUSSION OF CLAIMS ONE, TWO, THREE, EIGHT, AND NINE
A.

Standards for Procedural Default
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. In Nebraska, “one complete round” ordinarily
means that each § 2254 claim must have been presented in an appeal to the Nebraska
5

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).
In order to fairly present a federal constitutional claim to the state courts, the
petitioner must refer to “a specific federal constitutional right, a particular
constitutional provision, a federal constitutional case, or a state case raising a pertinent
federal constitutional issue.” McCall v. Benson, 114 F.3d 754, 757 (8th Cir. 1997)
(internal quotation marks and citation omitted). “Presenting a claim that is merely
similar to the federal habeas claim is not sufficient to satisfy the fairly presented
requirement.” Cox v. Burger, 398 F.3d 1025, 1031 (8th Cir. 2005), cert. denied, 546
U.S. 844 (2005) (internal quotation marks and citations omitted). 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
6

merits of the claim.” Shaddy v. Clarke, 890 F.2d 1016, 1018 (8th Cir. 1989) (internal
quotation marks 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) (internal quotation marks omitted).
B.

Procedurally-Defaulted Claims
Glassco did not give the Nebraska state courts a full and fair opportunity to

resolve Claims One, Two, Three, Eight, or parts of Claim Nine.
1.

Claims One and Two

In Claims One and Two, Glassco argues that his federal due process rights were
violated when the trial court and the prosecution did not follow the requirements set
forth in Nebraska’s habitual criminal statute. Glassco presented similar claims in his
brief to the Nebraska Court of Appeals. (Filing No. 9-2 at CM/ECF pp. 39-49.)
However, the claims he presented to the Nebraska Court of Appeals were not federal
due process claims. Therefore, Claims One and Two were not fairly presented in the
Nebraska state courts. See Cox, 398 F.3d at 1031 (“Presenting a claim that is merely
similar to the federal habeas claim is not sufficient to satisfy the fairly presented
requirement.”). In addition, Glassco is now barred from raising the claims in what
would be a successive post-conviction motion. 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.”)

Therefore, Claims One and Two are

procedurally defaulted.
2.

Claim Three

Glassco’s third claim is that his federal due process rights were violated when
the trial court “improperly assumed” that two witnesses had identified Glassco as the
person appearing in various photographs. Glassco arguably raised Claim Three on
7

direct appeal to the Nebraska Court of Appeals. (See Filing No. 9-2 at CM/ECF pp.
51-53.) However, he did not raise Claim Three in his petition for further review to the
Nebraska Supreme Court. (See id. at CM/ECF pp. 62-69.)
As set forth above, “one complete round” in Nebraska 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.
Akins, 410 F.3d at 454-55. Glassco did not present Claim Three in one complete round
in the Nebraska state courts, and he is now barred from doing so. For these reasons,
Claim Three is procedurally defaulted.
3.

Claim Eight

Glassco’s eighth claim is that he received the ineffective assistance of trial
counsel. Glassco failed to raise any part of this claim on direct appeal, which he was
required to do under Nebraska law because his appellate counsel was different from
his trial counsel. (See Glassco II, Filing No. 9-3 at CM/ECF p. 114 (“[S]ince Glassco
had different counsel on direct appeal, he is precluded from arguing ineffective
assistance of trial counsel in his motion for postconviction relief.”) The Nebraska state
courts declined to address Claim Eight because Glassco failed to meet a state
procedural requirement. As such, Glassco did not fairly present this claim in the
Nebraska state courts, and it is procedurally defaulted.
4.

Claim 9, Parts 2 and 3

In Claim Nine, Parts 2 and 3, Glassco argues that he received the ineffective
assistance of counsel because his appellate counsel failed to argue that the evidence
was insufficient to support Glassco’s conviction, and also failed to argue that the trial
court abused its discretion when it overruled Glassco’s motion for a new trial. Glassco
raised these arguments in his amended post-conviction motion. (See Filing No. 9-3 at
CM/ECF p. 43.) However, he did not raise these arguments on appeal to the Nebraska
8

Court of Appeals or in a petition for further review to the Nebraska Supreme Court.
(See id. at CM/ECF pp. 74-109.) Therefore, these arguments were not presented in
one complete round in the Nebraska state courts, and they are procedurally defaulted.
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 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.”).
As best as the court can tell, Glassco argues that his appellate counsel’s failure
to allege that his trial counsel was ineffective is cause for the procedural default of
Claim Eight. (Filing No. 20 at CM/ECF p. 32.) However, “the mere fact that counsel
failed to recognize the factual or legal basis for a claim, or failed to raise the claim
despite recognizing it, does not constitute cause for procedural default.” Murray v.
Carrier, 477 U.S. 478, 486 (1986). Moreover, the Nebraska Court of Appeals
determined that Glassco’s appellate counsel was not ineffective for failing to argue that
trial counsel was ineffective. (Filing No. 9-3 at CM/ECF p. 118.) As discussed later
in this Memorandum and Order, this decision by the Nebraska Court of Appeals was
not based on an unreasonable application of clearly established federal law or contrary
to federal law.

9

Glassco has not argued that failure to consider his defaulted claims will result
in a fundamental miscarriage of justice. Regardless, in order for Glassco 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). Glassco has not done
so. Thus, for the reasons set forth above, Claims One, Two, Three, Eight, and parts of
Claim Nine are dismissed because they are procedurally defaulted and Glassco has not
shown cause to excuse the procedural default.
III. DISCUSSION OF CLAIMS FOUR, FIVE, AND NINE
A.

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.” 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 405-406.
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
10

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 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 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) (internal 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
11

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, 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.
B.

Claim Four
Glassco’s fourth claim is that the evidence adduced at trial was insufficient to

support his convictions. The court’s review of this claim is limited by the standard of
review described above. In addition, within the context of § 2254, the court considers
“‘whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.’” Liggins v. Burger, 422 F.3d 642, 647 (8th Cir. 2005) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
1.

State Court Findings

The Nebraska Court of Appeals considered and rejected Glassco’s argument
that the evidence was insufficient to support his conviction:
Glassco was convicted of burglary and misdemeanor theft by
unlawful taking. “A person commits burglary if such person willfully,
maliciously, and forcibly breaks and enters any real estate or any
improvements erected thereon with intent to commit any felony or with
intent to steal property of any value.” Neb. Rev. Stat. § 28-507(1)
(Reissue 2008). “A person is guilty of theft if he or she takes, or exercises
12

control over, movable property of another with the intent to deprive him
or her thereof.” Neb. Rev. Stat. § 28-511(1) (Reissue 2008).
Viewing the evidence in the light most favorable to the State, we
conclude the evidence established that various items were stolen from the
Meyers’ home by gaining entry by breaking a door. Items stolen included
checks, two watches, an engagement ring, and a collectible belt buckle
valued at $25 which items were located in Glassco’s vehicle. Glassco was
identified as an individual who was working on Kilday’s property during
the time that the Meyers’ were residing on the property and were moving
their belongings to a new residence over an extended period of time.
Additionally, Kilday testified that he identified Glassco as one of the
people in photographs made from the video obtained from the drug store
in Lincoln at the time a forged check was passed on Duane’s checking
account. This evidence is sufficient to support Glassco’s convictions.
(Filing No. 9-2 at CM/ECF p. 77.) After the Nebraska Court of Appeals denied relief
on this issue, Glassco petitioned the Nebraska Supreme Court for further review, which
also denied relief. (Filing No. 9-4 at CM/ECF p. 2.)
2.

Deference

The foregoing findings of fact and conclusions of law made by the Nebraska
state courts are entitled to deference under the statutory standard of review that applies
to factual and legal conclusions reached by the state courts. Thus, after a careful
review of the record, the court finds that the Nebraska state court decisions on the
issues raised in Claim Four were neither contrary to clearly established federal law nor
involved an unreasonable application of clearly established federal law. As such,
Glassco’s request for relief on Claim Four is denied.
C.

Claim Five
Glassco’s fifth claim is that he was convicted in violation of the Fourth

Amendment because law enforcement officers did not have permission to search his
13

vehicle. The United States Supreme Court’s decision in Stone v. Powell, 428 U.S. 465
(1976), precludes this court from reviewing Claim Five. Under Stone, “where the State
has provided an opportunity for full and fair litigation of a Fourth Amendment claim,
a state prisoner may not be granted federal habeas corpus relief on the ground that
evidence obtained in an unconstitutional search or seizure was introduced at his trial.”
428 U.S. at 494. In practice, this means that “Fourth Amendment claims asserted by
state prisoners in federal habeas petitions are to be treated differently from other
constitutional claims.” Willett v. Lockhart, 37 F.3d 1265, 1273 (8th Cir. 1994).
In order for Glassco to show that he was not afforded a full and fair litigation of
his claim, he must show that “the State ‘provided no corrective procedures at all to
address the alleged Fourth Amendment violation’ or that the State ‘provided a
corrective mechanism, but [he] was precluded from using that mechanism because of
an unconscionable breakdown in the underlying process.’” Chavez v. Weber, 497 F.3d
796, 802 (8th Cir. 2007) (quoting Willett, 37 F.3d at 1271-72).
Here, Glassco actually litigated his Fourth Amendment claim in the Nebraska
Court of Appeals, and in the Nebraska Supreme Court. (See Filing No. 9-2 at 49, 62.)
Glassco concedes as much, but argues that he did not fully litigate the claim because
his trial counsel failed to raise important facts. (Filing No. 20 at CM/ECF pp. 27-28.)
However, the question is whether there was an “unconscionable breakdown” in
Nebraska’s process that prevented him from raising his Fourth Amendment claim.
Here, it is clear from the record that there was not. Nebraska procedures allowed
Glassco to raise the claim in a pre-trial motion to suppress and to challenge the
findings on direct appeal to the Nebraska Court of Appeals and in a petition for further
review to the Nebraska Supreme Court. In light of these findings, the court cannot
consider Claim Five because the Nebraska courts provided an adequate procedure for
Glassco to raise the claim, and Glassco was not foreclosed from using that procedure.
In Claim Five, Glassco also argues that law enforcement officers exceeded their
authority when they obtained surveillance video from a drug store. However, Glassco
14

has no standing to contest law enforcement’s actions in obtaining the video from a
third party. See Rakas v. Illinois, 439 U.S. 128, 134 (1978) (holding that an individual
cannot challenge “a search of a third person’s premises or property” as he “has not had
any of his Fourth Amendment rights infringed”). For the foregoing reasons, Claim
Five is dismissed.
D.

Claim Nine, Part 1
In Claim Nine, Part 1, Glassco argues that appellate counsel was ineffective for

failing to allege the ineffectiveness of trial counsel. Specifically, he argues that
appellate counsel should have argued that trial counsel was ineffective for (1) failing
to insist that the district court rule on Glassco’s motion to suppress identifications from
surveillance video and photographs, (2) failing to locate Sarah Mueller and call her as
a witness, (3) failing to renew the motion for a directed verdict, (4) failing to impeach
key witnesses, and (5) pressuring Glassco into waiving his right to a jury trial. The
Nebraska Court of Appeals addressed these arguments 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. The first prong of the Strickland test requires that the
petitioner demonstrate that his attorney failed to provide reasonably effective
assistance. Id. 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
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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. Strickland, 466 U.S. at
690.
Additionally, the Supreme Court has emphasized that the deference due the state
courts applies with vigor to decisions involving ineffective assistance of counsel
claims. Knowles v. Mirzayance, 556 U.S. 111 (2009). 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 122.
2.

State Court Findings

Glassco raised Claim Nine, Part 1, in his amended post-conviction motion to the
district court, on appeal to the Nebraska Court of Appeals, and in a petition for further
review to the Nebraska Supreme Court. In each instance, the Nebraska state courts
rejected Glassco’s arguments. The Nebraska Court of Appeals did so in a detailed
opinion:

16

In considering whether appellate counsel was ineffective, we assess the
strength of the claims of ineffectiveness of trial counsel raised by
Glassco.
1. IDENTIFICATION EVIDENCE
Glassco contends that trial counsel was ineffective in failing to
insist that the district court rule on the motion to suppress identifications
from surveillance video and photos, for failing to object on hearsay
grounds at the suppression hearing to the testimony of Sheriff Davis
Moore and Deputy Mark Monroe about who Donald Kilday and/or
Duane Meyer said the individual looked like in photographs from
surveillance video, for failing to object to seven photographs contained
on exhibits 14 and 24 from the surveillance video because Kilday only
testified at the suppression hearing to two photographs, and for failing to
object to surveillance video, photographs from that video, and the store
manager, Michael Gleasons, testimony regarding both.
Glassco was convicted of burglary and misdemeanor theft. The
stolen items were found in a vehicle which was searched pursuant to
consent. Further, Glassco was identified as an individual who was
working on the property from which the items were stolen during the
time that the persons who were residing on the property were moving
their belongings to a new residence over an extended period of time.
Even without any identifications from surveillance and photos there was
sufficient evidence to support Glassco’s convictions; therefore, Glassco
cannot establish prejudice on these claimed errors.
2. FAILURE TO MAKE SUFFICIENT EFFORT TO LOCATE
WITNESS
Glassco contends that trial counsel was ineffective for failing to
make a sufficient effort to locate his girlfriend, Sarah Mueller, as a
witness. However, in a letter to trial counsel, Glassco states that “In
regards to my fiance Sarah Mueller, I only wanted to inform you of her
unstableness. Sarah, like I said is very edgy and does not have a very
good since (sic) of keeping her thoughts organized and has a tendancy
(sic) to get information she absorbs confused.” Glassco goes on to
discuss Sarah’s medical conditions and states “I worry that these

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conditions may be detrimental to the case if she is caused to be
overwhelmed by [the] prosecution.”
Even if trial counsel could locate Sarah, it would have been
entirely reasonable trial strategy not to call her as a witness, given the
concerns raised by Glassco himself. In determining whether trial
counsel’s performance was deficient, there is a strong presumption that
counsel acted reasonably. State v. Sidzyik, 281 Neb. 305, 313, 795
N.W.2d 281, 288 (2011); State v. Gonzalez-Faguaga, 266 Neb. 72, 662
N.W.2d 581 (2003) . Trial counsel is afforded due deference to formulate
trial strategy and tactics. State v. Sidzyik, supra. Glassco can establish no
prejudice from this claimed error.
3. FAILURE TO RENEW MOTION FOR DIRECTED VERDICT
Glassco contends that trial counsel was ineffective for failing to
renew the motion for a directed verdict. Although trial counsel did not
renew the motion for a directed verdict, on direct appeal, appellate
counsel raised the issue that the evidence was insufficient to support his
convictions. A defendant who moves for dismissal or a directed verdict
at the close of the evidence in the State’s case in chief in a criminal
prosecution, and who, when the court overrules the dismissal or directed
verdict motion, proceeds with trial and introduces evidence, waives the
appellate right to challenge correctness in the trial court’s overruling the
motion for dismissal or a directed verdict, but may challenge sufficiency
of the evidence for the defendant’s conviction. State v. Gartner, 263 Neb.
153, 638 N.W.2d 849 (2002); State v. Severin, 250 Neb. 841, 553
N.W.2d 452 (1996). Glassco cannot establish prejudice.
4. FAILURE TO IMPEACH WITNESS
Glassco contends that trial counsel was ineffective for failing to
impeach Elmer Meyer about the number of watches stolen or about the
misidentification of property as his own. Even if counsel had
cross-examined Elmer about these issues, they are insignificant and
would not have had any impact on the result of the trial. Therefore,
Glassco cannot establish prejudice on this claimed error.
5. PRESSURING INTO WAIVING RIGHT TO JURY TRIAL

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Glassco testified at the postconviction hearing and he contends in
his appellate brief that trial counsel pressured him into waiving his right
to a jury trial. However, he did not allege this in his amended motion for
postconviction relief and therefore, we need not address it here. See State
v. Davlin, 277 Neb. 972, 766 N.W.2d 370 (2009) (where district court not
presented with allegation in any of Davlin’s three motions for
postconviction relief, appellate court need not address allegation on
appeal).
IV. CONCLUSION
Having found that trial counsel was not ineffective it follows that
appellate counsel was likewise not ineffective for failing to raise the issue
of ineffectiveness of trial counsel on direct appeal. Appellate counsel
could not have been ineffective in failing to raise a nonmeritorious claim
that trial counsel was ineffective. State v. Jim, 275 Neb. 481, 747 N. W.
2d 410 (2008). Therefore, we find that the district court properly denied
Glassco’s motion for postconviction relief and we affirm.
(Filing No. 9-3 at CM/ECF pp. 115-118.)
After the Nebraska Court of Appeals denied relief on these issues, Glassco
petitioned the Nebraska Supreme Court for further review, which also denied relief.
(Filing No. 9-4 at CM/ECF p. 5.)
3.

Deference

The foregoing findings of fact and conclusions of law are entitled to deference
under the statutory standard of review that applies to factual and legal conclusions
reached by the state courts. The Nebraska Court of Appeals reviewed all of the
evidence and determined, based on Strickland and other federal and state law, that
Glassco’s 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
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facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §
2254(d)(2). Glassco has not submitted any evidence, let alone clear and convincing
evidence, that the Nebraska state courts were incorrect in any of the factual
determinations. 28 U.S.C. § 2254(e)(1). The grant of a writ of habeas corpus is not
warranted on these issues because the Nebraska state courts correctly applied
Strickland and other federal law.
IT IS THEREFORE ORDERED that:
1.

Glassco’s Petition (Filing No. 1) is dismissed with prejudice.

2.

A separate judgment will be entered in accordance with this

Memorandum and Order.
3.

All pending motions are denied as moot.

DATED this 23 rd day of August, 2012.
BY THE COURT:
Richard G. Kopf
Senior 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
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