Collins v. Britten et al

Filing 27

MEMORANDUM AND ORDER - Collins' Petition for Writ of Habeas Corpus (filing no. 1 ) is dismissed with prejudice. A separate judgment will be entered in accordance with this Memorandum and Order. No Certificate of Appealability will be issued. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
THUNDER COLLINS,
Petitioner,
v.
FRED BRITTEN,
Respondent.

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4:12CV3235

MEMORANDUM AND ORDER

Thunder Collins has filed a petition under 28 U.S.C. § 2254 (filing no. 1)
challenging his conviction under Nebraska law for murder and related crimes. The
matter has been fully briefed, and the record made complete. I find and conclude that
Collins has failed to fairly present his claims as federal Constitutional claims to the
Nebraska courts and thus has defaulted them or that, when the required deference is
given the Nebraska Supreme Court, his claims lack merit.
I. BACKGROUND
After a jury trial, Thunder Collins was convicted of first degree murder,
attempted second degree murder, first degree assault, and two counts of use of a
weapon to commit a felony. He was sentenced to a combined sentence of life plus at
least 90 years’ imprisonment.
Boiled down, the jury believed that Collins, with the assistance of other people,
ripped off some California drug dealers, killing one and seriously harming another.
On direct appeal to the Nebraska Supreme Court, said appeal being required by the
fact that a life sentence was imposed, Collins asserted six claims. They were: the
district court erred in (1) denying his motion for a directed verdict; (2) admitting
evidence of a prior relationship between Collins and the victims, in violation of rule

404; (3) allowing the State to file a second amended information just 20 days prior to
trial; (4) overruling Collins’ motion for new trial based on newly discovered evidence;
(5) overruling Collins’ motion for new trial due to the district court’s action in
allowing the jury to separate during deliberations; and (6) submitting the felony
murder charge to the jury.
The Nebraska Supreme Court denied five of the six claims in the first appeal.
State v. Collins, 799 N.W.2d 693 (Neb. 2011). The opinion was extremely thorough
and factually detailed. Regarding the claim that the jury was not sequestered, the
Nebraska Supreme Court remanded that claim for an evidentiary hearing on whether
the prosecution could show that there was no prejudice. Following an evidentiary
hearing where it was clearly established that the jurors engaged in no improper
conduct and were not influenced by external sources, the Nebraska Supreme Court
affirmed Collins’ conviction and sentence. State v. Collins, 812 N.W.2d 285 (Neb.
2012). Collins did not seek review by the United States Supreme Court.
On June 19, 2012, Collins filed a motion for postconviction relief. (Filing No.
12-14 at CM/ECF pp. 14-17.) Collins alleged two claims in his postconviction
motion: (1) the Nebraska Supreme Court erred in finding on direct appeal that the rule
404 violation was harmless error, and (2) Collins’ conviction was inconsistent with
the conviction of his codefendant. (Id.) The state district court entered a written
opinion denying Collins’ postconviction motion without an evidentiary hearing. (Id.
at CM/ECF pp. 24-26.) Collins appealed to the Nebraska Supreme Court, arguing that
the district court erred in denying Collins’ first postconviction claim – that the
Nebraska Supreme Court erred in finding on direct appeal that the rule 404 violation
was harmless error. (Id. at CM/ECF p. 1; Filing No. 12-10 at CM/ECF pp. 3, 5-7.) The
Nebraska Supreme Court affirmed the state district court’s judgment by sustaining the
State’s motion for summary affirmance on October 31, 2012. (Filing No. 12-3 at
CM/ECF p. 2.)

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Collins filed his petition in this court on November 28, 2012. The matter was
initially reviewed, and five claims were found to be “potentially cognizable” in federal
court. (Filing no. 10.) That is:
Liberally construed, Petitioner asserts he was denied due process in
violation of the Fourteenth Amendment because the trial court (1) denied
Petitioner’s motion for directed verdict, (2) sustained the state’s 404
motion to “adduce” evidence of a prior relationship between Petitioner
and California drug dealers, (3) allowed the state to file a second
amended information 20 days before trial, (4) denied Petitioner’s motion
for new trial, and (5) submitted a felony murder charge to the jury.
Id.
Nebraska has answered the petition (filing no.19), submitted the record (filing
no. 12, filing no. 13, filing no. 14, filing no. 15, filing no. 16), and briefed the matter.
(Filing no. 20.) Collins has responded with his brief (filing no. 24), and the matter is
now deemed submitted.1
II. ANALYSIS
Intending no disrespect, this case is not difficult. Claims 2 and 3 have been
procedurally defaulted because Collins did not fairly present the substance of each of
those federal claims to the state courts and he is now barred from doing so.2

1

Collins was given leave to amend his petition after Nebraska filed its brief, but
he failed to do so. (Filing no. 23.) Instead, he filed his brief in response.
2

Collins has provided nothing that would excuse the procedural default. He
certainly is not “actually innocent.”
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Additionally, claims 1, 4 and 5 have no substantive merit.3 Briefly, I next explain why
this is so.
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 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).
3

Indeed, none of the claims have substantive merit even if somehow they were
fairly presented to the Nebraska Supreme Court as federal claims.
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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
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:

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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.

Exhaustion Requirement
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
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by invoking one complete round of the State’s established appellate
review process.
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). A state prisoner must therefore
“fairly present” the substance of each federal constitutional claim to the state courts
before seeking federal habeas relief. Id. at 844. In Nebraska, “one complete round”
ordinarily means that each § 2254 claim must have been presented in an appeal to the
Nebraska Court of Appeals, and then in a petition for further review to the Nebraska
Supreme Court if the Court of Appeals rules against the petitioner. See Akins v.
Kenney, 410 F.3d 451, 454-55 (8th Cir. 2005).
Moreover, where “no state court remedy is available for the unexhausted
claim—that is, if resort to the state courts would be futile—then the exhaustion
requirement in § 2254(b) is satisfied, but the failure to exhaust ‘provides an
independent and adequate state-law ground for the conviction and sentence, and thus
prevents federal habeas corpus review of the defaulted claim, unless the petitioner can
demonstrate cause and prejudice for the default.’” Armstrong v. Iowa, 418 F.3d 924,
926 (8th Cir. 2005) (quoting Gray v. Netherland, 518 U.S. 152, 162 (1996)). Stated
another way, if a claim has not been presented to the Nebraska appellate courts and
is now barred from presentation, the claim is procedurally defaulted, not unexhausted.
Akins, 410 F.3d at 456 n. 1.
Under Nebraska law, “[a]n appellate court will not entertain a successive
motion for postconviction relief unless the motion affirmatively shows on its face that
the basis relied upon for relief was not available at the time the movant filed the prior
motion.” State v. Ortiz, 670 N.W.2d 788, 792 (Neb. 2003). Additionally, “[a] motion
for postconviction relief cannot be used to secure review of issues which were or
could have been litigated on direct appeal.” Hall v. State, 646 N.W.2d 572, 579 (Neb.
2002).

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In such circumstances, where a Nebraska state court rejects a claim on state
procedural grounds, and issues a “‘plain statement’ that it is rejecting petitioner’s
federal claim on state procedural grounds,” a federal habeas court is precluded from
“reaching the merits of the claim.” Shaddy v. Clarke, 890 F.2d 1016, 1018 (8th Cir.
1989); see also Greer v. Minnesota, 493 F.3d 952, 957 (8th Cir. 2007) (reiterating that
“when a state court declined to address a prisoner’s federal claims because the
prisoner had failed to meet a state procedural requirement,” federal habeas is barred
because “[i]n such instances, the state prisoner forfeits his right to present his federal
claim through a federal habeas corpus petition”) (quotations omitted). However, the
state court procedural decision must “rest[] on independent and adequate state
procedural grounds.” Barnett v. Roper, 541 F.3d 804, 808 (8th Cir. 2008) (quotation
omitted). “A state procedural rule is adequate only if it is a firmly established and
regularly followed state practice.” Id. (quotation omitted).
C.

Claims 2 and 3 Have Been Procedurally Defaulted

Claim 2 asserts that the trial judge erred by admitting evidence of a prior
relationship between Collins and the victims, in violation of Nebraska Rule of
Evidence 404. Claim 3 asserts that the trial court erred by allowing the State to file a
second amended information just 20 days prior to trial in violation of Nebraska
procedural requirements as set forth in the Nebraska case law.
These were entirely and only state law claims. They were never presented or
argued or decided as anything but state law claims. Collins cannot now get the federal
claims back to the state court because Nebraska law bars such an effort either because
those claims could have been presented on direct appeal or by post conviction action.
Having availed himself of both remedies without raising the federal claims, Nebraska

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state law bars further inquiry. Accordingly, a federal procedural default arises as to
both claims 2 and 3.4
D.

When the Nebraska Supreme Court is Accorded Due Deference, Claims
1, 4 and 5 Have No Merit

Claims 1 and 5 essentially raise sufficiency of the evidence claims in federal
constitutional garb. Basically, Collins argues that no reasonable jury could convict
him because only one witness testified that Collins was the shooter and that witness
had an incentive to lie.
The Nebraska Supreme Court carefully reviewed the evidence, and wrote:
In sum, viewed in a light most favorable to the State, the evidence shows
that Collins was aware of the cocaine secreted in the vehicle and knew
the amount of money sale of the cocaine would bring and how much
money he would have to pay Turner and Thomas. Johnson testified that
Collins told him that he wanted to “get” Turner and Thomas. Collins had
Patterson and Burton provide him with two weapons, then lured Turner
and Thomas into a closed garage with just one exit. In addition, Turner
testified that Collins shot Thomas. Finally, physical evidence presented
at trial showed Collins shot Turner and killed Thomas.

4

On direct appeal Collins alleged, as a separate assignment of error, that the
state district court erred in submitting the felony murder charge to the jury. (Filing No.
12-6 at CM/ECF p. 9.) Because Collins’ argument for this claim focused solely on
sufficiency of evidence, however, the Nebraska Supreme Court addressed the
assignment of error together with his claim that the trial court erred in denying his
motion for directed verdict on all charges. (Filing No. 12-4 at CM/ECF p. 10.) To the
extent that Collins’ fifth habeas claim is the same as his first habeas claim, as it was
on direct appeal, the claim has no substantive merit and will be addressed on the
merits. If, however, Collins is raising a claim separate from his first habeas claim, his
fifth habeas claim has been procedurally defaulted because it was not presented to the
state courts.
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Collins, 799 N.W.2d at 706.
I also note that a fellow by the name of Johnson testified against Collins.
Among other things, Johnson helped to select the house were the “rip off” took place
and he placed a gun in the house. After Collins was arrested, the evidence revealed:
a telephone call from Collins to the home of Johnson’s parents. This call
was made from the Douglas County Correctional Center on November
10, 2008. In the call, Collins, speaking to Johnson’s girlfriend and later
to Johnson’s father, indicated that Collins had cleared Johnson from
being in the garage at the time of the shooting, but that Johnson needed
to stop telling people that a robbery was in progress. Collins then
explained the felony murder rule and suggested that Johnson’s father
speak to Johnson about Johnson’s changing his story. Johnson testified
that in addition to this telephone call, a message from Collins was
relayed to him via the barber at the correctional center and that Johnson
was told to keep his mouth shut.
Id. at 705.
Claims 1 and 5 have no merit.
Claim 4 relates to a motion for new trial and is liberally construed as a federal
claim. It should be considered in two parts, and, once again, when the deference due
the Nebraska Supreme Court is given, it is apparent that this claim lacks merit.
For the first part of Claim 4, Collins claims that the trial court and the Nebraska
Supreme Court erred by failing to give him a new trial after he discovered “new
evidence” of his innocence. The evidence related to the testimony of a woman who
allegedly saw another woman walk out of the place where the shooting occurred and
tell the neighbor that one of the “Johnson boys” shot somebody in the garage. As the
Nebraska Supreme Court noted, this was not “new evidence” because the woman’s
existence had been known by both sides prior to trial and, even more importantly, the
woman’s testimony was full of contradictions, inconsistent with the observations of
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percipient witnesses and the woman failed to mention her testimony about the
“Johnson boys” when she first reported the incident to a law partner of the defense
lawyer representing Collins. Id. at 710. To the extent that there is a federal
constitutional claim involved, this portion of Claim 4 has no merit.
The second portion of Claim 4 relates to the failure to sequester the jury. The
Nebraska Supreme Court approached this issue very carefully. It remanded for a full
evidentiary hearing where all the jurors were called to testify and the issue was fully
examined by the trial judge and counsel. The Nebraska Supreme Court carefully
reviewed the record made at remand, and issued a separate opinion explaining fully
why it concluded that the prosecutor had proven there was no prejudice. State v.
Collins, 812 N.W.2d 285. There was certainly nothing improper within the meaning
of 28 U.S.C. § 2254(d)(1) about the Nebraska Supreme Court decision on this issue.
See, e.g., Mastrian v. McManus, 554 F.2d 813, 818-819 (8th Cir. 1977) (despite
extensive publicity, denying habeas corpus relief where jury was not sequestered) (J.
Heaney).
III. CONCLUSION AND NO CERTIFICATE
No matter how viewed, Collins’ claims have no substantive merit. Moreover,
two of them are also procedurally defaulted. He is not entitled to relief.
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).

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In this case, Collins has failed to make a substantial showing of the denial of
a constitutional right. I am not persuaded that the issues raised in the Petition are
debatable among reasonable jurists, that a court could resolve the issues differently,
or that the issues deserve further proceedings. Accordingly, I will not issue a
certificate of appealability in this case.
Finally, I appreciate the manner in which Erin E. Tangeman, the Assistant
Nebraska Attorney General who handled this case, approaches these important
matters. Her commitment to providing a complete record and a brief which is
thorough but direct and to the point materially assists our court in fairly resolving
these matters. Also, her full understanding of the applicable federal law is evident.
IT IS ORDERED that:
1.
Collins’ Petition for Writ of Habeas Corpus (filing no. 1) is dismissed
with prejudice.
2.
A separate judgment will be entered in accordance with this
Memorandum and Order.
3.

No Certificate of Appealability will be issued.

June 4, 2014.

BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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