Williams v. Houston et al

Filing 33

MEMORANDUM AND ORDER - Williams' Petition for Writ of Habeas Corpus (filing 1 ) is dismissed. 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 Senior Judge Richard G. Kopf. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LARRY E. WILLIAMS,
Petitioner,
v.
MICHAEL L. KENNEY,
Respondent.

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4:13CV3170

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner Larry E. Williams’ (“Petitioner”
or “Williams”) Petition for Writ of Habeas Corpus (“Petition”). (Filing 1.) Liberally
construed, Williams argues that he is entitled to a writ of habeas corpus based on the
following claims:
Claim One:

Williams was denied the effective assistance of counsel in
violation of the Sixth Amendment because Williams’ trial
counsel did not (1) investigate the case; (2) gather
evidence; (3) prepare for trial; (4) call Kent Gurll (the
victim’s step-father) and Don Anderson (the victim’s
biological father) to testify regarding the victim’s
propensity to “get even”; (5) advise Petitioner during trial;
(6) tender a proper jury instruction; (7) formulate a
reasonable strategy for attacking the motivations of the
victim to make a false claim; (8) call witnesses who would
testify to the victim’s reputation for untruthfulness; (9) call
character witnesses who would testify to his good character
and reputation for truthfulness; (10) examine the victim’s
DHHS records for evidence of conduct that would establish
motivations for giving false testimony at trial; (11) examine
the victim’s mental health records from Richard Young
Mental Health Hospital that would have disclosed her

bi-polar disorder; (12) examine the victim’s prior criminal
history relevant to impeachment of her trial testimony; or
(13) object to the jury instructions, which did not include
the essential elements of the crimes charged in Counts VI
and VII.
Claim Two:

Williams’ conviction was obtained in violation of his right
to due process because the trial court did not properly
instruct the jury as to each of the material elements of the
offenses alleged in Counts VI and VII.

(Id.; Filing 8 at CM/ECF pp. 1-2.)
I. BACKGROUND
A.

Williams’ Conviction and Direct Appeal

On July 21, 2010, a jury found Williams guilty of five counts of first degree
sexual assault and one count of sexual assault of a child. (Filing 29-4 at CM/ECF p.
10.) On September 3, 2010, the District Court of Buffalo County, Nebraska,
(“Buffalo County District Court”) sentenced Williams to a period of not less than 6
nor more than 12 years of imprisonment for each of his five sexual assault
convictions. (Filing 12-1 at CM/ECF pp. 2-3.) With regard to the sexual assault of
a child conviction, the Buffalo County District Court sentenced Williams to a term of
5 years of probation. (Id.)
Williams appealed his convictions and sentences (filing 29-7), but the Nebraska
Supreme Court affirmed them (filing 29-2). State v. Williams, 802 N.W.2d 421 (Neb.
2011).

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B.

Williams’ Post-Conviction Motion

On January 12, 2012, Williams filed a Verified Motion to Set Aside and Vacate
the Conviction and Sentence (“Post-Conviction Motion”) in the Buffalo County
District Court. (Filing 29-8 at CM/ECF pp. 49-65.) In his Post-Conviction Motion,
Williams alleged his trial counsel was ineffective for:
1) failure to adequately investigate the case; 2) failure to adequately
gather the evidence; 3) failure to adequately prepare for trial; 4) failure
to adequately interview and gather the witnesses the defendant
requested; 5) failure to adequately advise defendant during prosecution;
6) failure to tender a proper jury instruction and 7) failure to object to a
defective instruction.
(Filing 12-2 at CM/ECF p. 6.) On May 21, 2012, the Buffalo County District Court
dismissed Williams’ Post-Conviction Motion. (Id. at CM/ECF pp. 1, 12.) In doing
so, the Buffalo County District Court specifically concluded that, based on the files
and records, Williams could not show that his trial counsel’s performance was
deficient. (Id. at CM/ECF p. 6.)
On June 19, 2012, Williams filed a Notice of Appeal regarding the Buffalo
County District Court’s order denying his Post-Conviction Motion. (Filing 29-8 at
CM/ECF p. 27.) Six days later, Plaintiff filed a Motion for Leave to Proceed In Forma
Pauperis on his Post-Conviction appeal along with an affidavit of poverty in support
thereof. (Id. at CM/ECF pp. 6-7.) On July 25, 2012, the Nebraska Court of Appeals
dismissed the appeal because the poverty affidavit, filed in lieu of the statutory docket
fee, was not timely filed pursuant to Neb. Rev. Stat. § 25-1912(1). (Filing 12-3 at
CM/ECF p. 2.) Williams subsequently filed a Motion for Rehearing, which the
Nebraska Court of Appeals overruled. (Id.)

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C.

Williams’ Petition

On September 25, 2013, Williams filed his Petition in this court. (Filing No.
1.) Respondent subsequently filed an Answer, a Brief in Support of the Answer, and
relevant State Court Records. (Filings 12, 13, and 14.) Thereafter, Williams filed a
Brief in support of his Petition and Respondent replied. (Filings 23, 29, and 32.) I
deem this matter fully submitted.
II. STANDARD OF REVIEW
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
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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
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
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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.
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).

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The United States Supreme Court has explained the habeas exhaustion
requirement as follows:
Because the exhaustion doctrine is designed to give the state courts a full
and fair opportunity to resolve federal constitutional claims before those
claims are presented to the federal courts . . . state prisoners must give
the state courts one full opportunity to resolve any constitutional issues
by invoking one complete round of the State’s established appellate
review process.
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). A state prisoner must therefore
“fairly present” the substance of each federal constitutional claim to the state courts
before seeking federal habeas relief. Id. at 844. In Nebraska, “one complete round”
ordinarily means that each § 2254 claim must have been presented in an appeal to the
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
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motion.” State v. Ortiz, 670 N.W.2d 788, 792 (Neb. 2003). Additionally, “[a] motion
for postconviction relief cannot be used to secure review of issues which were or
could have been litigated on direct appeal.” Hall v. State, 646 N.W.2d 572, 579 (Neb.
2002). In such circumstances, where a Nebraska state court rejects a claim on state
procedural grounds, and issues a “‘plain statement’ that it is rejecting petitioner’s
federal claim on state procedural grounds,” a federal habeas court is precluded from
“reaching the merits of the claim.” Shaddy v. Clarke, 890 F.2d 1016, 1018 (8th Cir.
1989); see also Greer v. Minnesota, 493 F.3d 952, 957 (8th Cir. 2007) (reiterating that
“when a state court declined to address a prisoner’s federal claims because the
prisoner had failed to meet a state procedural requirement,” federal habeas is barred
because “[i]n such instances, the state prisoner forfeits his right to present his federal
claim through a federal habeas corpus petition”) (quotations omitted). However, the
state court procedural decision must “rest[] on independent and adequate state
procedural grounds.” Barnett v. Roper, 541 F.3d 804, 808 (8th Cir. 2008) (quotation
omitted). “A state procedural rule is adequate only if it is a firmly established and
regularly followed state practice.” Id. (quotation omitted).
III. PROCEDURAL DEFAULT
As discussed above, Williams raises two claims in his Petition; an ineffective
assistance of trial counsel claim and a due process claim. (See generally Filings 1 and
8.) Respondent argues that both of these claims are procedurally defaulted. (Filings
14 and 23.) For the reasons discussed below, I agree.
A.

Claim One - Ineffective Assistance of Trial Counsel

The record before the court shows that Williams was represented by the same
counsel during trial and on direct appeal. (Filing 29-1, 29-2, 29-7 at CM/ECF p. 50.)
Because the same attorney represented Williams at trial and on direct appeal, his first
opportunity to raise an ineffective assistance of trial counsel claim was in his PostConviction Motion. See State v. Dunster, 769 N.W.2d 401, 410-11 (Neb. 2009)
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(reiterating that, in Nebraska, claims of ineffective assistance of counsel raised on
direct appeal by the same counsel who represented defendant at trial are premature
and will not be addressed on direct appeal).
In his Post-Conviction Motion, Williams alleged his trial counsel was
ineffective for failing to adequately investigate the case, gather the evidence, prepare
for trial, interview and gather the witnesses he requested, advise him during the
prosecution, tender a proper jury instruction, and object to a defective jury instruction.
(Filing 12-2 at CM/ECF p. 6.) The language of Williams’ ineffective assistance of
counsel allegations in his Petition differs somewhat from those in his Post-Conviction
Motion, however, the substance is the same. (Compare Filing 1 with Filing 29-8 at
CM/ECF pp. 49-64.) Stated another way, Williams’ ineffective assistance of trial
counsel allegations at the post-conviction stage were broad. (Id.)
As discussed above, a prisoner must “fairly present” the substance of each of
his federal constitutional claims to the state courts before seeking federal habeas relief.
O’Sullivan, 526 U.S. 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. Akins, 410 F.3d 451 at 454-55.
Although Williams presented his ineffective assistance of counsel claims to the
Buffalo County District Court in his Post-Conviction Motion, he failed to “fairly
present” these claims to Nebraska’s appellate courts. Indeed, on July 25, 2012,
Williams’ post-conviction appeal was dismissed because the poverty affidavit, filed
in lieu of the statutory docket fee, was not timely filed pursuant to Neb. Rev. Stat. §
25-1912(1). (Filing 12-3 at CM/ECF p. 2.) Under Nebraska law, in order to vest the
appellate courts with jurisdiction, a poverty affidavit must be filed within the time that
the docket fee otherwise must be deposited. Nebraska v. Ruffin, 789 N.W.2d. 19, 2425 (Neb. 2011). Because Williams did not raise his ineffective assistance of counsel
claim in one complete round in the Nebraska state courts as required by 28 U.S.C.
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§ 2254(b)(1), and because Williams cannot now raise his claims in a successive
motion for post-conviction relief, see Ortiz, 670 N.W.2d at 792, his ineffective
assistance of trial counsel claim is procedurally defaulted.
In an attempt to excuse this procedural default, Williams directs the court to the
United States Supreme Court’s decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012).
(Filing 23 at CM/ECF pp. 2-4.) In Martinez, the Supreme Court held that:
Where, under state law, claims of ineffective assistance of trial counsel
must be raised in an initial-review collateral proceeding, a procedural
default will not bar a federal habeas court from hearing a substantial
claim of ineffective assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that proceeding was
ineffective.
Martinez, 132 S. Ct. at 1320. The Supreme Court elaborated on and expanded this
cause exception in Trevino v. Thaler, 133 S. Ct. 1911 (2013). There, the Supreme
Court held that Martinez is applicable not only in circumstances where a state requires
a defendant to raise a claim of ineffective assistance of trial counsel in a state
collateral proceeding, but also when a state maintains a procedural regime that
amounts to such a requirement (i.e., when it is “virtually impossible” for an ineffective
assistance claim to be raised on direct review). Trevino, 133 S. Ct. at 1914-15.
Assuming, without deciding, that Martinez applies to federal habeas corpus
cases arising from Nebraska convictions, the holding in Martinez does nothing to
excuse the procedural default of Williams’ ineffective assistance of trial counsel
claim. In Martinez, the Court reasoned that a federal habeas court should “hear a
claim of ineffective assistance of trial counsel when an attorney’s errors (or the
absence of an attorney) caused a procedural default in an initial-review collateral
proceeding . . . .” Martinez, 132 S. Ct. at 1318 (emphasis added). Here, the default
of Williams’ ineffective assistance of counsel claims did not occur because he failed
to raise them in the initial-review collateral proceeding (i.e., his Post-Conviction
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Motion). Rather, the default occurred because, after raising them in his PostConviction Motion, he failed to perfect an appeal. (See Filing 12-3 at CM/ECF p. 2.)
In Martinez, the Court was concerned that “when an attorney errs in initial-review
collateral proceedings, it is likely that no state court at any level will hear the
prisoner’s claim.” 132 S. Ct. at 1316. That concern is not present here because the
issues were actually raised in the initial-review collateral proceeding, and then
considered and rejected by the Buffalo County District Court. Accordingly, Williams
has failed to show cause and prejudice to excuse the procedural default of Claim One.1
B.

Claim Two - Due Process

Turning to Claim Two, Williams’ first opportunity to present his allegation that
the trial court failed to properly instruct the jury regarding Counts VI and VII was on
direct appeal. However, on direct appeal, he failed to raise this claim. (See Filing 293.) Under Nebraska law, a motion for postconviction relief cannot be used to secure
review of issues that could have been litigated on direct appeal. See Hall, 646 N.W.2d
at 579. Further, a Nebraska 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.”
Ortiz, 670 N.W.2d at 792. In light of these state procedural rules, Williams’ Claim
Two is procedurally defaulted.
Williams does not appear to argue that cause and prejudice excuse the
procedural default of Claim Two. (Filing 23 at CM/ECF pp. 4-5.) To the extent
Williams argues Martinez also applies to excuse the default of Claim Two, his

I note that to “overcome the default, [Williams] must also demonstrate that the
underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is
to say that [Williams] must demonstrate that the claim has some merit.” Martinez,
132 S.Ct. at 1318-19. Williams makes no attempt to argue the merits of his ineffective
assistance of trial counsel allegations. (See Filing 23.)
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argument lacks merit. Claim Two is a due process claim and Martinez only applies
to claims of ineffective assistance of trial counsel. Trevino, 133 S.Ct. at 1914-15.
Accordingly, I find that Williams has not shown cause and prejudice to excuse the
procedural default of Claim Two.
IV. 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. McDaniel, 529
U.S. 473, 484 (2000).
In this case, Williams 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.
IT IS THEREFORE ORDERED that:
1.

Williams’ Petition for Writ of Habeas Corpus (filing 1) is dismissed.

2.
A separate judgment will be entered in accordance with this
Memorandum and Order.
3.

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

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DATED this 10th day of October, 2014.
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 parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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