Dunkin v. Houston

Filing 16

MEMORANDUM AND ORDER - This matter is dismissed with prejudice and a separate judgment will be entered in accordance with this Memorandum and Order. The court will not issue a certificate of appealability in this matter. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBERT J. DUNKIN,

)
)
Petitioner,
)
)
v.
)
)
ROBERT HOUSTON, Nebraska
)
Department of Correctional Services, )
)
Respondent.
)

4:12CV3086

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner Robert J. Dunkin’s (“Petitioner”
or “Dunkin”) Petition for Writ of Habeas Corpus (“Petition”). (Filing No. 1.) For the
reasons set forth below, Dunkin’s Petition is dismissed with prejudice.
I. BACKGROUND
A.

Conviction

Dunkin was charged by information with murder in the first degree and use of
a weapon to commit a felony in the Lancaster County District Court (“state district
court”) in connection with the death of his girlfriend. On February 10, 2009, the State
of Nebraska (“state”) amended the information to charge Dunkin with murder in the
second degree and, in exchange, Dunkin pled no-contest to the amended information.
(Filing No. 8-1 at CM/ECF pp. 72-74.) Thereafter, the court sentenced Dunkin to 40
years’ to life imprisonment. (Id. at 93.) Dunkin did not appeal the court’s conviction
and sentence.
B.

Post-Conviction Motion and Appeal

Dunkin filed a motion for post-conviction relief (“post-conviction motion”) in
the state district court on February 23, 2010. (Filing No. 8-5 at CM/ECF p. 30.) After

holding an evidentiary hearing on Dunkin’s post-conviction motion, the state district
court denied post-conviction relief on February 23, 2011. (Id. at CM/ECF pp. 106119.) Dunkin timely appealed the state court’s decision. The appeal was taken up by
the Nebraska Supreme Court, which denied relief by written opinion in State v.
Dunkin, 807 N.W.2d 744 (Neb. 2012). In its written opinion, the Nebraska Supreme
Court summarized the relevant factual and procedural history:
2. Evidentiary Hearing on Postconviction Motion
Dunkin testified at the hearing on his postconviction motion.
Dunkin stated that he was initially represented by an attorney from the
Commission on Public Advocacy, but that Dunkin’s brother wanted to
hire a private attorney. Dunkin’s brother hired trial counsel to represent
him, and Dunkin’s brother signed a fee agreement and paid a flat fee of
$25,000. Dunkin stated that throughout the proceedings, his mother and
brother were in contact with counsel while Dunkin was in jail, to relay
messages from Dunkin. Dunkin stated that he could not contact counsel
directly because counsel’s office did not accept collect telephone calls.
Counsel testified, however, that his office policy was to accept collect
calls from clients who are in jail.
Dunkin testified regarding his first meeting with counsel on
August 1, 2008, during which meeting Dunkin told counsel his version
of the events that occurred on January 21 and 22, 2008, which had led
to the death of Anderson. Dunkin explained that he had been in a
relationship with Anderson for approximately 6 months. The evening of
her death, she had gone to Dunkin’s house and began crying. The two
had previously discussed whether Anderson had cheated on Dunkin, and
he again asked her if that was the case. Anderson did not answer, and
Dunkin repeatedly asked if she had cheated on him until Anderson got
angry. Anderson then jumped out of her chair and swung her purse at
Dunkin, which hit him in the head and knocked him to the ground.
Anderson swung her arms at Dunkin, and he attempted to restrain her
but she bit him on the arm, knocking him to the ground again.

2

Dunkin testified that Anderson told him she was going to kill him
and then reached for a chair where he kept a gun. At the same time,
Dunkin moved to reach the gun first; a struggle ensued, during which
Anderson kicked Dunkin in the knee and he fell into the wall. When
Dunkin fell, the gun went off and struck and killed Anderson. Dunkin
testified that he told counsel that Anderson’s death was accidental and
unintentional. Dunkin stated that counsel told him that he thought
Dunkin had a good case for manslaughter.
Dunkin explained to counsel that he had taken a large amount of
prescription pills after the incident, including more than 60 Xanax pills,
some Percocet, hydrocodone, and “Ambien CR.” Dunkin stated that he
remembers nothing between the time he took the pills and when he woke
up in jail. Dunkin testified that counsel commented he thought that that
number of pills would have killed Dunkin and that Dunkin stated he had
taken the pills because he wanted to kill himself because he could not
live with what had happened.
(a) Suppression Hearing
Following the incident, Dunkin was taken from his home to a
hospital by ambulance because of the possible overdose. Dunkin made
statements to medical personnel and police officers during the
ambulance ride and after arriving at the hospital. The statements made
by Dunkin during this time were recorded by a police officer who rode
to the hospital in the ambulance with Dunkin.
Counsel filed a motion to suppress the statements Dunkin had
made to law enforcement and medical personnel when he was taken into
custody. In the motion to suppress, counsel argued that Dunkin’s
statements to medical personnel should be suppressed on the basis of
doctor-patient privilege. He also claimed that the statements Dunkin
made to police officers at the hospital should be suppressed, because
Dunkin was not properly advised of his Miranda rights. A suppression
hearing was scheduled, and on December 23, 2008, Dunkin met with
counsel for the second time for approximately 10 minutes immediately
prior to the hearing to discuss what would happen.
3

At the suppression hearing, the State called two police officers to
testify; counsel did not call any witnesses on Dunkin’s behalf, nor did
Dunkin testify. Dunkin met with counsel briefly following the
suppression hearing, and counsel explained that the hearing had gone as
he expected it would. Dunkin testified that he was lucid during the
hearing and understood what was going on.
After taking the motion to suppress under advisement, the court
overruled the motion in regard to Dunkin’s statements made during
transport to the hospital and those made to police officers at the hospital
after Dunkin was read his Miranda rights, and it sustained the motion in
regard to statements he made to police prior to being advised of his
Miranda rights. The court reserved ruling on statements made by Dunkin
to the treating physician at the hospital. Dunkin said that he wanted to
appeal the suppression order but that counsel told him that could not be
done because it was not a final, appealable order. Dunkin then told
counsel he should try to negotiate a manslaughter charge.
(b) Autopsy Report
Dunkin testified that he told counsel that the autopsy report was
incorrect, because it reported that Anderson had died of strangulation
and a gunshot wound. Dunkin told counsel that Anderson must have had
bruises on her neck and that if this could be confirmed, it would support
Dunkin’s version of the events—that the death was accidental.
Counsel obtained court approval for appointment of an expert
witness. Counsel retained Dr. George Nichols, with whom he had
worked in a previous case. Counsel believed Nichols to be highly
qualified and retained Nichols to review the autopsy report. Nichols was
supplied with the police and medical reports related to Dunkin’s case.
Counsel testified that Nichols reviewed all of the documents in the case
and was unable to confirm Dunkin’s version of the events. Counsel
stated that Nichols’ opinion was generally unfavorable to Dunkin and
that he did not receive a written report of Nichols’ findings.

4

Nichols reviewed the bruises on Anderson’s neck, with which
Dunkin took issue, and determined that the bruises on her neck were not
from strangulation or a purse strap as Dunkin had stated, but appeared
to be from a “karate chop”-like blow to the neck. After reviewing the
documents, Nichols informed counsel that he thought Dunkin’s version
of the incident was implausible and that it appeared that Anderson’s
death “was an execution.”
(c) Plea Negotiations and Proceeding
On February 10, 2009, counsel presented Dunkin with a plea offer
of second degree murder and a dismissal of the gun charge. Dunkin
asked counsel, If “this were your kid” in this situation, “what would you
tell them [sic] to do?” Counsel said that he would advise him to take the
plea deal, because the State would dismiss the gun charge and he would
probably be looking at 20 to 30 years’ imprisonment, which would be
“really close” to what a manslaughter conviction would get him. Dunkin
testified that counsel told him that the judge wanted his plea by the end
of the day if he were going to take the deal. Dunkin stated that he felt
“pressured” and “rushed” during the meeting regarding the plea offer.
Dunkin met with counsel for a second time also on February 10,
2009, for 10 to 15 minutes. Dunkin testified that at that point, Dunkin
felt that they were not ready for trial, which was scheduled for 1 week
later. Dunkin stated that they had not discussed strategy and that he had
not been prepped to testify, so he decided to take the plea offer. Dunkin
testified that counsel told him he had spoken with the prosecutor, the
judge, and the parole board and that Dunkin would be let out of prison
on his first parole date.
Counsel stated that he did not depose any witnesses because he
was able to rely on witness interviews conducted by Dunkin’s previous
attorney from the Commission on Public Advocacy. Counsel also
testified that he felt he was prepared for trial and that he advised Dunkin
to take the plea offer, because he felt there was a substantial likelihood
Dunkin would be convicted of first degree murder if the case went to
trial.
5

Dunkin entered his plea of no contest to the charge of murder in
the second degree on February 10, 2009. At the plea hearing, Dunkin
stated that he was taking several medications and that the medications
helped him to think more clearly. During postconviction proceedings,
however, Dunkin stated that he was suffering from anxiety on February
10 and that as a result, his mind was “racing” and he could not think
straight. Dunkin testified that he did not freely and voluntarily plead no
contest, because he was heavily medicated, he was not “in the right
mind” to make such a decision, and he felt pressured. Dunkin stated that
he decided to take the plea, because he had not discussed trial strategy
with counsel and he felt rushed.
Dunkin also testified that counsel told him what answers to give
to the judge at the plea hearing. Dunkin stated that without that
preparation, he would not have been able to properly answer the
questions regarding his understanding of the plea. Counsel testified that
he did not pressure Dunkin in any way to accept a plea offer; that at all
times, he told Dunkin to answer questions from the court truthfully; and
that he told Dunkin he hoped for a sentence of 20 to 30 years’
imprisonment, but had made no promises.
Sentencing was scheduled for April 27, 2009. Dunkin did not
meet or speak with counsel prior to the sentencing date. On the day of
the sentencing hearing, Dunkin and counsel met briefly. Dunkin had
prepared a statement for the hearing that he wanted to read so
Anderson’s family could hear what had happened. Counsel told Dunkin
it would be in his best interests not to say anything, and Dunkin
refrained from reading his statement and said only that he was sorry and
took responsibility for what had happened. The court imposed a
sentence of 40 years’ to life imprisonment.
(d) Possibility of Appeal
Dunkin had no further contact with counsel following sentencing,
nor did they discuss an appeal. Dunkin did not speak with counsel
directly regarding an appeal of his conviction or sentence. However,
Dunkin testified that he asked his mother, brother, and son to tell
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counsel that he wanted to appeal. Dunkin stated that he did not receive
any correspondence from counsel regarding his ability to appeal and that
he never signed a waiver of appeal.
Dunkin’s mother, Meredith Chisholm, testified that Dunkin called
her on May 8, 2009, and asked her if she would contact counsel to
request an appeal. Chisholm contacted counsel on May 12 and left a
message. Counsel returned Chisholm’s call 2 days later, when Chisholm
asked about the chances Dunkin would have on appeal and asked that
counsel visit Dunkin in jail. Counsel stated that he believed the chances
of success on appeal were slim and that he could not “take any more
money from [the family].” Counsel did not speak with Chisholm any
further regarding the possibility of an appeal.
Counsel testified that he did not get a written waiver of appeal
from Dunkin or advise Dunkin or Chisholm that it would be possible to
obtain court-appointed counsel to prosecute an appeal if Dunkin was
determined to be indigent. However, counsel stated that he discussed the
possibility of a successful appeal with Chisholm within 30 days of
Dunkin’s sentencing. At that time, Chisholm did not request that he file
an appeal. Counsel further testified that he had explained to Dunkin that
he would not be able to appeal the suppression order if he accepted the
plea offer. And counsel testified that he also discussed all the other
rights that Dunkin would waive if he entered the plea.
(e) Disposition
Following the evidentiary hearing, the district court denied
Dunkin’s request for postconviction relief. The court determined that
Dunkin’s plea was made freely and knowingly, without pressure or
coercion from counsel and without the promise of a specific sentence.
The court also found that counsel was not ineffective in his preparation
for trial or in failing to request a competency examination. Finally, the
court determined that although counsel engaged in some discussion
regarding the possibility of an appeal, counsel was not ineffective in
failing to file an appeal, because the record reflects that no request for
appeal was made.
7

Id. at 748-753.
C.

Petition

Dunkin timely filed his Petition in this court on May 1, 2012. (Filing No. 1.)
In response to Dunkin’s Petition, Respondent filed an Answer, a Brief, and the
relevant State Court Records. (Filing Nos. 8, 9, 10.) Dunkin submitted a Brief in
support of his Petition. (Filing No. 15.) The court deems this matter fully submitted.
II. DISCUSSION OF DUNKIN’S CLAIMS
Liberally construing the allegations of Dunkin’s Petition, Dunkin argues he is
entitled to a writ of habeas corpus because he was denied the effective assistance of
trial counsel in violation of the Sixth Amendment. Dunkin argues that trial counsel
was ineffective because he promised Dunkin a specific sentence, which Dunkin did
not receive; he failed to prepare for trial by interviewing necessary witnesses and
developing evidence that Dunkin did not intend to kill the victim; he failed to appeal
the state district court’s denial of the motion to suppress; and he failed to appeal
Dunkin’s conviction and sentence. The Nebraska state courts adjudicated each of
these claims on the merits and so the court’s analysis is governed by the provisions
set forth in 28 U.S.C. § 2254(d).
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
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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 405406. 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 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

9

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 quotation
marks 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, 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.

10

Here, because Dunkin argues his counsel was ineffective, the court must
address Dunkin’s arguments under the two-pronged standard of Strickland v.
Washington, 466 U.S. 668 (1984).
B.

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
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:

11

The question is not whether a federal court believes the state court’s
determination under the Strickland standard as incorrect but whether
that determination was unreasonable–a substantially higher
threshold. . . . 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.
Id. at 123 (internal quotation marks and citations omitted).
C.

No-Contest Plea

The majority of Dunkin’s claims relate to his entry of the no-contest plea.
Dunkin argues that he entered into a plea agreement with the state because trial
counsel promised him a minimum sentence of 20 to 30 years’ imprisonment, and
because he knew trial counsel was not prepared for trial. The state district court and
the Nebraska Supreme Court adjudicated and rejected these arguments on their
merits, and did so under the two-prong Strickland standard.
1.

Specific Sentence

With respect to Dunkin’s argument that he was promised a specific sentence,
the Nebraska Supreme Court wrote, in relevant part:
Dunkin claims that counsel was ineffective in failing to object to
the State’s alleged breach of the plea agreement when he was sentenced
to 40 years’ to life imprisonment rather than 20 to 30 years’
imprisonment. The district court determined that Dunkin’s allegation
that a specific sentence was promised or that the plea agreement was
conditioned on such a sentence was without merit. The district court
discussed sentencing with Dunkin at the plea hearing:
THE COURT: I assume there has been a plea agreement here, is
that correct?
12

[Counsel for the State:] There has, Judge. The plea agreement is
in exchange for the State filing the amended charge of second degree
murder, ... Dunkin would plead guilty or no contest to that charge. No
other charges stemming from the events of January 21, 2008, would be
filed against ... Dunkin.
THE COURT: [Defense counsel], is that your understanding of
the plea agreement?
[Defense counsel]: That’s accurate, Your Honor.
THE COURT: And ... is that your understanding of the plea
agreement?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And is this an agreeable way to dispose of the
matter as far as you are concerned?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Other than this agreement, has anyone connected
with law enforcement or anyone else made any threats, direct or indirect,
used any force or held out any promises of any kind to get you to come
in here today and to enter this plea and to waive your rights?
THE DEFENDANT: No, Your Honor.
THE COURT: Has anyone made any promises or representations
to you as to what the actual sentence in this case might be should you
enter this plea?
THE DEFENDANT: No, Your Honor.
THE COURT: Do you understand that within the limits of the
statute the determination of the appropriate sentence is entirely up to the
Court?
13

THE DEFENDANT: Yes, Your Honor.
THE COURT: And do you still wish to plead no contest to the
charge in the Amended Information?
THE DEFENDANT: Yes, I do, Your Honor.
THE COURT: Again, are you freely and voluntarily entering this
plea and waiving your rights?
THE DEFENDANT: Yes, Your Honor.
There is no evidence that Dunkin was promised a certain
sentence, and other than his testimony at the evidentiary hearing below,
there is no evidence that Dunkin believed he was guaranteed a sentence
of 20 to 30 years’ imprisonment. The record reflects that counsel told
Dunkin he hoped for such a sentence, but this does not support an
ineffectiveness claim. Dunkin’s arguments to the contrary are without
merit.
Dunkin, 807 N.W.2d at 754-55.
The Nebraska Supreme Court’s findings of fact and conclusions of law are
entitled to deference. The Nebraska Supreme Court’s finding that Dunkin was not
promised a specific sentence was not based on an unreasonable determination of the
facts in light of the evidence. Indeed, the record is clear that the sentence Dunkin
received–40 years to life–was within the range of possible penalties explained to him
by the court at his plea hearing. (See Filing No. 8-1 at CM/ECF p. 74.) This claim
has no merit, and a grant of a writ of habeas corpus is not warranted on this issue.
2.

Trial Preparation

With respect to Dunkin’s argument that counsel was not prepared for trial, the
Nebraska Supreme Court wrote:
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Dunkin claims he accepted the plea agreement only because he
recognized that his counsel was not ready for trial. The district court
concluded that Dunkin’s arguments were without merit, because the
record did not reflect that counsel pressured Dunkin to plead no contest
and Dunkin failed to present any evidence of prejudice resulting from
counsel’s allegedly deficient pretrial investigation.
The record affirmatively reflects that Dunkin freely and
voluntarily entered his plea. During the plea proceeding, the following
colloquy occurred:
THE COURT: Have you discussed the plea proceedings that we
are conducting here today with [counsel]?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Did he explain the Amended Information and the
charge to you together with the rights we have been discussing?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And did [counsel] discuss with you all of the
possible defenses to this charge that you might have if you were to have
a trial?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Are there any defenses that you feel you may have
or any facts about the case that you feel might be helpful to your defense
that you have not discussed with [counsel]?
THE DEFENDANT: No, Your Honor.
THE COURT: In other words, have you told him everything about
the case that you feel he needs to know to be able to represent you
properly?

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THE DEFENDANT: Yes, Your Honor.
THE COURT: Are you satisfied with the job he’s done as your
attorney?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you feel he is a competent lawyer, that he
knows what he’s doing?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Is there anything you have asked [counsel] to do
in regard to representing you in this matter that he has failed to do?
THE DEFENDANT: No, Your Honor.
THE COURT: And have you had enough time to talk with him
about the case?
THE DEFENDANT: Yes, Your Honor.
We agree with the district court that the record does not indicate that
Dunkin was in any way uncertain or reluctant to enter his plea.
Based upon our review of the record, the district court’s finding
that Dunkin was not pressured or coerced is not clearly erroneous.
Accordingly, we conclude that the court did not err in denying Dunkin’s
claim for postconviction relief.
Dunkin, 807 N.W.2d at 754-55.
The Nebraska state courts also discussed the adequacy of trial counsel’s
pretrial investigation. The state district court wrote:

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Dunkin claims that [counsel] failed to conduct an adequate pretrial
investigation. However, there was no evidence of how this prejudiced
Dunkin. The issue here was not that the victim was not killed by Dunkin
but the degree of culpability. The only witnesses to the killing were
Dunkin and the victim. [Counsel] did obtain the services of a forensic
pathologist who [counsel] believed to be highly qualified in order to
review the crime scene reports and photographs as well as the autopsy
findings of Dr. Matthias Okoye. After reviewing these documents he
informed [counsel] that Dunkin’s version of the incident was
implausible (actually, he said it “was full of sh __”), that the victim
appeared to have been “executed” and that the mark on her neck was not
from strangulation or her purse strap but appeared to be from a Karate
like blow. Obviously, [counsel] concluded that testimony by Dr. Nichols
would not be helpful and basically contradicted Dunkin’s version of the
incident.
(Filing No. 8-5 at CM/ECF p. 114.) The Nebraska Supreme Court agreed, adding:
Finally, Dunkin asserts that he accepted the plea because counsel
did not follow his instructions to interview witnesses and investigate the
case. Dunkin requested that counsel interview Dunkin’s sons, various
experts, and character witnesses and argues that counsel should have
subpoenaed such witnesses to testify at trial. Again, Dunkin claims that
if counsel had interviewed or subpoenaed these witnesses, Dunkin
would have insisted on going to trial. But Dunkin presented no evidence
that any of these witnesses could have presented testimony both relevant
to the case and favorable to Dunkin. The district court noted that
Dunkin’s sons had already been subpoenaed by the State and that
counsel contacted a forensic pathologist, Nichols, per Dunkin’s request.
The court concluded, however, that the expert testimony would not be
helpful to Dunkin, as it contradicted Dunkin’s version of the incident.
We agree with the district court that there is no evidence that Dunkin
was prejudiced by counsel’s failure to call these witnesses. Nor did
counsel’s decision not to call these witnesses unduly pressure or coerce
Dunkin to accept a plea.

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Dunkin has failed to establish that counsel’s preparation for the
case was unreasonable or inadequate. And Dunkin has not established
prejudice: The record does not indicate a reasonable probability that, but
for counsel’s alleged errors, Dunkin would not have entered his plea and
would have insisted on going to trial. Dunkin’s claim regarding
inadequate preparation is therefore without merit.
Dunkin, 807 N.W.2d at 755.
These foregoing findings of fact and conclusions of law by the state district
court and the Nebraska Supreme Court are entitled to deference under the statutory
standard of review that applies to factual and legal conclusions reached by the state
courts. The state courts’ decisions on these issues do not conflict with Supreme
Court precedents and were not based on an unreasonable determination of the facts
in light of the evidence. Moreover, the state courts’ decisions were reasonable and,
after careful review of the record, the court agrees with them. The record reflects that
Dunkin entered his plea to avoid facing a possible conviction for first degree murder,
not because trial counsel was unprepared. This is clear given that both Dunkin and
trial counsel were aware that even the forensic pathologist hired by the defense
opined that the victim had been “executed” and not killed “accidentally” as argued
by Dunkin. Accordingly, a grant of a writ of habeas corpus is not warranted on this
issue.
D.

Failure to Appeal Order on Motion to Suppress

Dunkin argues that trial counsel failed to appeal the state district court’s denial
of Dunkin’s motion to suppress. (Filing No. 1 at CM/ECF p. 10.) Dunkin’s
argument wholly lacks merit. As found by both the state district court and the
Nebraska Supreme Court, an order overruling a motion to suppress statements is not
a final appealable order in Nebraska. Dunkin, 807 N.W.2d at 755. Therefore,

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Dunkin’s trial counsel was not deficient in failing to appeal the state district court’s
denial of Dunkin’s motion to suppress.
E.

Direct Appeal

Dunkin argues that trial counsel was ineffective for failing to pursue a direct
appeal on Dunkin’s behalf. (Filing No. 1 at CM/ECF pp. 6-7.) Both the state district
court and the Nebraska Supreme Court adjudicated and rejected this argument on the
merits, and did so under the two-prong Strickland standard. (See state district court
opinion at Filing No. 8-5 at CM/ECF pp. 106-119.) The Nebraska Supreme Court
wrote, in relevant part:
Dunkin contends that his trial counsel was ineffective for failing
to file a direct appeal in response to his request that he do so. Under
certain circumstances, the nature of counsel’s deficient conduct in the
context of the prior proceedings can lead to a presumption of prejudice,
negating the defendant’s need to offer evidence of actual prejudice in a
postconviction case. After a trial, conviction, and sentencing, if counsel
deficiently fails to file or perfect an appeal after being so directed by the
criminal defendant, prejudice will be presumed and counsel will be
deemed ineffective, thus entitling the defendant to postconviction relief.
Assuming without deciding that the same principle would apply
where conviction is the result of a guilty or no contest plea, critical
question of fact is whether Dunkin directed his counsel to file a direct
appeal on his behalf. After reviewing the evidence received at the
postconviction hearing, the district court concluded that he did not. As
noted above, Dunkin’s mother, Chisholm, contacted counsel to discuss
the possible success of an appeal, but the record does not indicate that
she specifically requested counsel to pursue an appeal. And there is no
evidence that Dunkin attempted to contact counsel by letter or telephone
to make such a request himself. It is uncontested that Dunkin and
counsel had no contact following the sentencing proceedings. Based

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upon our review of the record, we conclude that these findings are not
clearly erroneous.
Dunkin, 807 N.W.2d at 759.
The Nebraska state courts’ findings of fact and conclusions of law under
Strickland are entitled to deference under the statutory standard of review that applies
to factual and legal conclusions reached by the state courts. Moreover, the state
courts’ determination that trial counsel was not ineffective is consistent with the
Supreme Court’s articulation of Strickland in Roe v. Flores-Ortega, 528 U.S. 470
(2000).
In Flores-Ortega the Supreme Court held that the ineffective assistance of
counsel test in Strickland applies to claims that counsel was constitutionally
ineffective for failing to file a notice of appeal. See Flores-Ortega, 528 U.S. at 477.
The court applied the two-part Strickland test to the issue of failure to file a notice
of appeal. First, with respect to the reasonableness of counsel’s representation, the
Court held:
[C]ounsel has a constitutionally-imposed duty to consult with the
defendant about an appeal when there is reason to think either (1) that
a rational defendant would want to appeal (for example, because there
are nonfrivolous grounds for appeal), or (2) that this particular defendant
reasonably demonstrated to counsel that he was interested in appealing.
Id. at 480. “In making this determination, courts must take into account all the
information counsel knew or should have known.” Id.
Second, with respect to prejudice, the Court held that to show prejudice, a
defendant “must demonstrate that there is a reasonable probability that, but for
counsel’s deficient failure to consult with him about an appeal, he would have timely
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appealed.” Id. at 484. The “would have appealed” standard considers all of the
circumstances, including whether there were nonfrivolous issues to appeal. Id. at
485.
In sum, the Supreme Court concluded that “when counsel’s constitutionally
deficient performance deprives a defendant of an appeal that he otherwise would
have taken, the defendant has made out a successful ineffective assistance of counsel
claim entitling him to an appeal.” Id. at 484. Applying the Flores-Ortega holdings
to Dunkin’s case, the court concludes that Dunkin has not made out a successful
ineffective assistance of counsel claim entitling him to an appeal.
Here, the state courts found that Dunkin did not instruct trial counsel to file a
notice of appeal. The courts’ findings were not based on an unreasonable
determination of the facts in light of the evidence. In addition, it is undisputed that
Dunkin and trial counsel had no contact following the sentencing hearing. Thus, the
court must consider whether trial counsel’s failure to confer with Dunkin about the
possibility of a direct appeal was unreasonable. There are two parts to the
reasonableness inquiry, and counsel had a duty to consult with Dunkin if either part
applies. First, counsel has a duty “when there is reason to think . . . that a rational
defendant would want to appeal (for example, because there are nonfrivolous grounds
for appeal).” Flores-Ortega, 528 U.S. at 480. Second, counsel has a duty “when
there is reason to think . . . that this particular defendant reasonably demonstrated to
counsel that he was interested in appealing.” Id.
The court finds that trial counsel’s failure to confer with Dunkin about filing
a notice of appeal was not unreasonable. As to the question of whether Dunkin
reasonably demonstrated an interest in appealing, the Nebraska Supreme Court found
that, while Dunkin’s mother contacted trial counsel to discuss the possible success
of an appeal, she did not ask trial counsel to file an appeal. The court also found
there was no evidence that Dunkin attempted to contact counsel by letter or telephone
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to make such a request himself. Dunkin, 807 N.W.2d at 759. In other words, Dunkin
did not reasonably demonstrate to trial counsel that he was interested in appealing.
As to the question of whether a rational defendant would want to appeal, the
Supreme Court indicated that pleading guilty, and the circumstances of the plea,
could be considered in the inquiry:
Although not determinative, a highly relevant factor in this inquiry is
whether the conviction follows a trial or a guilty plea, both because a
guilty plea reduces the scope of potentially appealable issues and
because such a plea may indicate that the defendant seeks an end to
judicial proceedings. Even in cases when the defendant pleads guilty,
the court must consider such factors as whether the defendant received
the sentence bargained for as part of the plea and whether the plea
expressly reserved or waived some or all appeal rights.
Flores-Ortega, 528 at 480.
Here, Dunkin pleaded guilty and received the sentence bargained for in the
plea agreement (i.e., a sentence for second-degree murder instead of a sentence for
first-degree murder). The sentence was within the range that Dunkin indicated he
understood applied. That is, the court advised him that second-degree murder was
a Class I-B felony that carried a possible penalty of 20 years’ to life imprisonment,
Dunkin affirmed that he understood the nature of the charges, and Dunkin ultimately
received a sentence within the range of possible penalties. (Filing No. 8-1 at
CM/ECF p. 74.)
In addition, the court takes into account the information trial counsel knew
following Dunkin’s sentencing. He knew that, while the plea deal allowed Dunkin
to plead guilty to the charge of second degree murder, the evidence suggested that
Dunkin was guilty of an intentional murder. A forensic pathologist, hired by the

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defense, reviewed the crime scene reports, photographs, and autopsy findings and
concluded that Dunkin’s version of the incident were not plausible and that the victim
appeared to have been “executed.” (Filing No. 8-5 at CM/ECF p. 114.) A rational
defendant in this situation would not want to appeal his conviction only to face the
original first degree murder charge. Moreover, Dunkin has not identified any
nonfrivolous grounds for appeal and, after careful review of the record, the court
finds there are none. As the facts before the court are the same facts that were before
Dunkin’s counsel, Dunkin’s counsel would have had no reason to believe that a
rational defendant in Dunkin’s situation would have wanted to appeal. For the
foregoing reasons, Dunkin’s trial counsel was not ineffective for failing to consult
with him about his right to appeal, and Dunkin has not shown that he would have
taken an appeal had counsel actually conferred with him. Accordingly, a grant of a
writ of habeas corpus is not warranted on this issue.
III. CERTIFICATE OF APPEALABILITY
A petitioner cannot appeal an adverse ruling on his petition for writ of habeas
corpus under § 2254 unless he is granted a certificate of appealability. 28 U.S.C.
§ 2253(c)(1); Fed. R. App. P. 22(b)(1). A certificate of appealability cannot be
granted unless the petitioner “has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, “[t]he
petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. Daniel, 529
U.S. 473, 484 (2000).
In this case, Petitioner has failed to make a substantial showing of the denial
of a constitutional right. The court is not persuaded that the issues raised in the
Petition and Amended Petition are debatable among reasonable jurists, that a court
could resolve the issues differently, or that the issues deserve further proceedings.
Accordingly, the court will not issue a certificate of appealability in this case.
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IT IS THEREFORE ORDERED that:
1.
This matter is dismissed with prejudice, and a separate judgment will be
entered in accordance with this Memorandum and Order.
2.

The court will not issue a certificate of appealability in this matter.

DATED this 21st day of May, 2013.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge

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of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
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