Manning v. Houston

Filing 15

MEMORANDUM AND ORDER - The petitioner's Petition for Writ of Habeas Corpus, Filing No. 1 , is denied. Ordered by Judge Joseph F. Bataillon. (AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
AARON D. MANNING,
Petitioner,

4:12CV3102

vs.
MEMORANDUM AND ORDER
ROBERT HOUSTON, Director,
Nebraska Department of Corrections
Respondent.

This matter is before the court on Aaron Manning’s Petition for Writ of Habeas
Corpus filed pursuant to 28 U.S.C. § 2254, Filing No. 1. Manning challenges his
conviction under a plea of nolo contendere in the District Court of Buffalo County,
Nebraska. Id. Manning contends that his conviction should be vacated or set aside,
because the State of Nebraska violated his United States Constitutional rights. Id.
BACKGROUND
A. SUBSTANTIVE CRIME AND EVIDENCE OF RELATED ACTIVITY
This case arises out of incidents pertaining to Aaron Manning’s attack on two
individuals. See Filing No. 9 (stating the Nebraska Court of Appeals’ recitation of the
facts). Aaron D. Manning (“Manning”), the petitioner, and Jim Haga (“Haga”) were close
friends. Filing No. 7-4 at 3. On Halloween night in 2004, Manning, dressed as a
surgeon, went to a house where Haga’s wife and child resided. Id. Manning cut the
wife and daughter’s necks and throats and the daughter’s face with a scalpel. Filing No.
9 at p. 1-2. The attack stopped only after the daughter stabbed Manning with a knife,
causing Manning’s surgical mask to fall off and allowing the victims to identify him. Id.

at p. 2. Both victims lived, although “a doctor would have testified that the cuts were
within millimeters of hitting either their jugular veins or carotid arteries.” Id.
Around the time of Manning’s attack, Haga had been accused of sexually
molesting his daughter. Filing No. 1, Attachment 2, p. 13. On the same evening that
Manning attacked the victims, one of Deb Haga’s friends had “two men, one dressed in
a ghillie suit and one dressed all in black come to her front door in Kearney, Nebraska
and ask who was home.” Filing No. 1, Attachment 2, at p. 14. The friend, Ginger Axtell,
often spent Halloweens with the victims in this case. Id. The two men left after learning
that no one other than Axtell and Axtell’s grandson were home. Id. Deb Haga later
received a letter threatening retaliation for her role in Haga’s molestation case. Filing
No. 7-4 at p. 4. Manning claims that he learned of these facts between July 2009 and
January 11, 2011. 1 Filing No. 12 at p. 2.
B. PROCEDURAL HISTORY
The District Court of Buffalo County convicted Manning of two Class 2 felonies
after Manning entered a plea of nolo contendere. Filing No. 7-13 at p. 4-5 (explaining
that the conviction came from Manning pleading guilty to two counts of attempted
murder in return for the State dismissing two counts of using a weapon to commit a
felony). The district court then sentenced Manning on August 19, 2005, to a minimum
of forty years and a maximum of fifty years. Filing No. 1 at p. 1. Manning appealed his
conviction to the Nebraska Court of Appeals on September 16, 2005. Id. at p. 2; Filing

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It is unclear exactly what facts were learned and when they were learned, but it appears from
emails sent to Manning’s attorney that Manning learned of the threatening letter to Ginger Axtell and
email communications between Ginger Axtell and Kearney Police Department investigators sometime
between March of 2009 and December of 2010. See Filing No. 7-12 at p. 21-30 (showing emails
forwarded to Manning’s attorney in December of 2010, but beginning with “here’s the first in a series of
email I forwarded to you back in 09. . . .”).

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No. 7-10 at p.1. The court dismissed the appeal on December 19, 2005, and Manning
did not seek further review. Filing No. 7-1 at p. 2; see Filing No. 1 at p. 6 (explaining
that Manning dismissed his appeal because his attorney withdrew as counsel).
Manning, however, twice moved for post-conviction relief in the District Court of
Buffalo County, Nebraska. Filing No. 1 at p. 3-4. The district court dismissed the first
motion for post-conviction relief, filed on July 30, 2009, on its own motion. Id. at 3.
Manning moved to amend the pleading and a motion to vacate the judgment, but the
court denied his motion. Id.; see Filing No. 7-4 at p. 3 (explaining Manning’s postdismissal steps). Manning appealed the order denying the motion to amend, but the
Nebraska Court of Appeals affirmed the District Court of Buffalo County. Filing No. 7-2
at p. 2.
In the second motion for post-conviction relief, filed on January 27, 2011, the
district court determined that Manning raised similar issues in his prior motion for postconviction relief and dismissed the second motion. Filing No. 7-12 at p. 31. Manning
moved for further review by the Nebraska Court of Appeals, who summarily affirmed the
District Court on August 15, 2011. Id.; Filing No. 7-3 at p. 2. Manning sought review by
the Supreme Court of Nebraska on September 14, 2011. Filing No. 7-3 at p. 2. The
Supreme Court of Nebraska denied the motion for further review on September 21,
2011. Id.; see Filing No. 1 at p. 5, 12 (explaining that Manning sought review by the
highest state court). Manning then filed his Petition for Writ of Habeas Corpus under 28
U.S.C. § 2254 on May 22, 2012. Id. at p. 1.

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In his petition, Manning set forth eight claims with various sub-parts. See Filing
No. 3 at p. 2-3.

This court found that of the eight claims, seven were potentially

cognizable in federal court. Id. The claims included:
“Claim One:
The petitioner was denied due process of law because the petitioner was
not notified of his Constitutional rights and was in custody or under arrest
when the petitioner made incriminating statements;
See Filing No. 1 - Petition Attachment Two p. 11 ¶ 9.
Claim Two:
The petitioner was denied due process of law because law enforcement
continued questioning the petitioner after the petitioner repeatedly
indicated he did not want to make a statement until his attorney was
present;
Id. at 11 ¶ 10.
Claim Three:
The petitioner was denied effective assistance of counsel in violation of
the Sixth Amendment because the petitioner was not adequately advised
of the parameters of the plea agreement;
Id. at 11 ¶ 11.
Claim Four:
The petitioner was denied due process of law, effective assistance of
counsel, and the right to confront witnesses, because the petitioner was
denied access to exculpatory evidence as referenced in attachment two of
the Petition;
Id. at 12 ¶ 12.
Claim Five:
The petitioner’s right to confrontation was violated because he was unable
to discuss or review his pre-sentence investigative report to enable him to
add or subtract information from the sentencing judge;
Id. at 17 ¶¶ 13, 15.
Claim Six:
The petitioner was not made aware of information that should be added to
the presentence investigative report because the county attorney did not
comply with discovery;
Id. at 17 ¶ 14.
Claim Seven:
The petitioner was denied his right to counsel due to ineffectiveness of
counsel because:
A. The petitioner was denied the right to read and review the presentence investigative report;
B. The petitioner’s trial counsel was ineffective by failing to
preserve the record and issues necessary for a direct appeal or to
aide or assist in the filing of an appeal prior to withdrawing;

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C. . . .2
D. The petitioner’s trial counsel was ineffective for not providing the
petitioner the right to attend depositions;
E. The petitioner’s trial counsel neither researched or investigated
the petitioner’s haziness prior to and during the assaults nor the
fact that Jim Haga could control the petitioner with hypnotism.
Id. at 17 ¶ 16.”
See Filing No. 3 at p. 2, 3.
DISCUSSION
Manning filed his habeas corpus petition after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2241-54.
Under the AEDPA, an application for writ of habeas corpus can be granted on a claim
that was adjudicated on the merits in state court only if the adjudication either resulted
in a decision that was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States” or
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)(1) & (2).
A.

CLAIMS ONE, TWO, THREE, FIVE, AND SEVEN

Manning claims the State of Nebraska violated his Fifth Amendment due process
rights, Sixth Amendment right to counsel, and his rights under the Confrontation Clause.
A one-year statute of limitations applies “to an application for a writ of habeas corpus by
a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1).
The determination of when the statute of limitations begins to run is as follows:
(d)(1) . . .
(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
2

The court ruled that this part of Claim Seven was not cognizable by the federal court.

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(B) the date on which the impediment to filing an application created by
State action in violation of the Constitution or laws of the United States is
removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly recognized
by the Supreme Court and made retroactively applicable to cases on
collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.”
28 U.S.C. § 2244(d)(1)(A)-(D).
A properly filed pending “application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim” will toll the statute of limitations.
28 U.S.C. § 2244(d)(2).
Claims One through Three, Claim Five, and Claim Seven of Manning’s petition all
fall under Subsection (d)(1)(A) of the rule because they are not dependent upon the
removal of a State-imposed impediment, they are not based on a newly created right,
and they are not dependent upon a factual predicate that could not have been
discovered. Therefore, the statute of limitations began to run for those claims on “the
date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).
The Buffalo County District Court sentenced Manning on August 19, 2005. He
filed a timely appeal to the Nebraska Court of Appeals on September 16, 2005.
However, Manning voluntarily dismissed the appeal on December 19, 2005. There was
no further direct review of the case. Thus, the statute of limitations began to run on
December 19, 2005, the conclusion of direct review.

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Manning did file two motions for post-conviction relief, however. Those motions
would toll the statute of limitations under 28 U.S.C. § 2244(d)(2), if they were filed
during the running of the statute of limitations. Manning did not file his first motion for
post-conviction relief until July 30, 2009, more than three and a half years after the
statute of limitations began to run. The first motion for post-conviction relief had no
effect on the relevant statute of limitations in this § 2254 habeas corpus case because
Manning filed the first motion for post-conviction relief after the statute of limitations ran.
Therefore, the court finds Claims One, Two, Three, Five, and Seven are all time barred
and the court dismisses those claims.
B. CLAIMS FOUR AND SIX
Claim Four and Claim Six of the petition involve Manning’s acquisition of
allegedly exculpatory evidence not made available at the time of his plea bargain. The
applicable subsection for determining when the one-year statute of limitations begins to
run is 28 U.S.C. § 2244(d)(1)(D). That subsection states that the statute of limitations
begins to run from “the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due diligence.”

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U.S.C. § 2244(d)(1)(D).
Manning alleges the County Attorney in his original case had exculpatory
evidence that would have put Manning in a better position to explore plea negotiations,
but the County Attorney did not produce that evidence. Manning claims that he learned
of evidence that suggested a conspiracy to intimidate witnesses in the case against Jim
Haga.3 If that evidence was in fact learned in between July 2009 and January of 2011,
as Manning claims, then Manning’s motions for post-conviction relief would toll the
3

See supra, note 1 and accompanying text.

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statute of limitations and Claims Four and Six would be timely. 28 U.S.C. § 2244(d)(1),
(2).
The allegedly exculpatory evidence consisted of evidence that other individuals
threatened Ginger Axtell in an attempt to prevent her from testifying against Jim Haga in
his child molestation case. Specifically, Ms. Axtell had two men approach her home
asking about the Hagas, and later received a threatening letter in the mail describing
her involvement with the Haga trial. Manning contends that the State withheld this
information from Manning and that the evidence tends to show that he was part of a
conspiracy to intimidate witnesses in Jim Haga’s trial for child molestation. In Manning’s
opinion, the evidence of a conspiracy shows that Manning was not guilty of attempted
murder because he only was attempting to intimidate witnesses.
However, Manning overlooks the fact that the evidence supporting the conviction
of attempted murder is overwhelming and fails to specify how this evidence would have
been exculpatory relating to the charges on which he was convicted. To the contrary,
the evidence in the case against Manning on the attempted murder charges was vast.
The evidence showed the Manning went to the Haga residence on Halloween night
dressed as a surgeon and wielding a scalpel. Manning then proceeded to attack both
Deb Haga and her daughter with the scalpel. Manning cut the necks and faces of both
of the victims, and only narrowly missed cutting major veins and arteries. Manning only
ceased his attack when the Hagas’ daughter was able to stab Manning with a knife and
remove Manning’s surgical mask, revealing his true identity.
Any evidence allegedly withheld from Manning about other individuals contacting
Ginger Axtell would, at very best, independently show that there was a possible

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conspiracy to intimidate witnesses. The evidence would have no bearing on the
attempted murder charges brought against Manning.
Claim Four alleges that the State of Nebraska denied Manning due process of
law and the right to confront witnesses because he was denied access to the
exculpatory evidence. Because the court finds that the evidence is not exculpatory, the
court finds Claim Four is without merit and dismisses the claim. Claim Six alleges that
Manning was not made aware of information, the alleged exculpatory evidence, which
should have been added to his presentence investigative report. Because the evidence
has no bearing on the charges of attempted murder, the court finds that Claim Six is
also without merit and dismisses the claim.
THEREFORE, IT IS ORDERED that the petitioner’s Petition for Writ of Habeas
Corpus, Filing No. 1, is denied.
Dated this 25th day of March, 2014.

BY THE COURT:

s/ Joseph F. Bataillon
United States District Judge

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