DeJong v. State of Nebraska

Filing 34

MEMORANDUM AND ORDER that the Petition for Writ of Habeas Corpus and amended petition (Filing No. 1; Filing No. 13 ) are dismissed with prejudice. The court will enter a separate judgment in accordance with this Memorandum and Order. The court will not issue a certificate of appealability. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SUSAN M. DEJONG,
Petitioner,

4:16CV3020

vs.
STATE OF NEBRASKA, WARDEN
DENIS SKROBECKI, DIRECTOR
SCOTT R. FRAKES, NEBRASKA
CORRECTIONAL CENTER FOR
WOMEN,

MEMORANDUM
AND ORDER

Respondents.
This matter is before the court on Petitioner Susan M. DeJong’s (“DeJong”)
Petition for Writ of Habeas Corpus. (Filing No. 1.) With the court’s permission,
DeJong subsequently filed an amended petition. (Filing No. 11; Filing No. 13.) For
the reasons that follow, the court will dismiss DeJong’s habeas petition and
amended petition with prejudice.
Liberally construed, DeJong argues in her habeas petition and amended
petition that she is entitled to a writ of habeas corpus based on the following
claims:



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Claim One:

Her conviction was obtained by a violation of the
privilege against self-incrimination.

Claim Two:

She was denied
interrogation.

Claim Three:

She was unlawfully detained by investigators.

Claim Four:

Her conviction was obtained by use of a coerced
confession.

Claim Five:

She was convicted based on insufficient evidence.

Claim Six:

She is innocent.

Claim Seven:

She was denied effective assistance of counsel when
counsel (a) failed to make various arguments at trial, (b)
did not allow her to participate during trial and in jury
selection, and (c) failed to assert the claims in her habeas
petition on direct appeal.

(See Filing No. 11; Filing No. 13.)

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access

to

an

attorney

during

I. BACKGROUND
A.

Conviction and Sentence

The court states the facts as they were recited by the Nebraska Supreme
Court in State v. DeJong, 845 N.W.2d 858, 863–71 (Neb. 2014) (affirming
DeJong’s convictions and sentences on direct appeal). See Bucklew v. Luebbers,
436 F.3d 1010, 1013 (8th Cir. 2006).
BACKGROUND
On March 11, 2011, Susan called the 911 emergency dispatch service at
approximately 4 p.m. Susan told the operator that her husband, Tom, was not
breathing and was cold to the touch. Susan stated that Tom had gone to South
Dakota to be with his “whore” and came home “all ... beat up.” The operator had
Susan perform cardiopulmonary resuscitation on Tom until the emergency units
arrived.
When emergency personnel arrived at the DeJong home, Susan was
hysterical and she repeatedly stated that the “whore” had done this to Tom.
Emergency personnel immediately began resuscitation efforts. Tom was not
breathing, and there was no heartbeat. Dried blood was around his nostrils and the
top of his mouth. His hands, arms, feet, legs, torso, and head were visibly
scratched, cut, and deeply bruised. Emergency personnel were able to help Tom
regain a heartbeat.
Tom was taken to the Jefferson Community Health Center and was later
transported by ambulance to Bryan Health, west campus trauma center, in Lincoln,
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Nebraska (Bryan hospital). Laboratory reports and blood tests indicated a threat of
imminent heart and renal failure. A chest x ray indicated multiple rib-sided
fractures and a partially collapsed lung. A CAT scan revealed the following
injuries: a swollen brain; a tremendous amount of fractures within the chest cavity,
including the spine, the ribs, and the scapula; a comminuted fracture of the nose;
and a possible fracture of the hyoid bone in the neck.
The treating physicians concluded that Tom would not be able to recover
from the injuries. The physicians asked Susan for permission to remove Tom from
life support, and she granted the request. Tom passed away shortly thereafter.
SUSAN'S STATEMENTS AT HOSPITALS
At the Jefferson Community Health Center, Rebecca McClure, a nurse,
stayed with Susan while waiting for Tom's prognosis. The two of them waited in a
small quiet room located outside of the emergency room.
Susan told McClure that she had not seen Tom since Wednesday and that he
came home that Friday morning. She stated that Tom was “stumbling around in the
house” and that the noise woke her up. Tom had been beaten, was cold, and
quickly became unresponsive. Susan told McClure that Tom had spent the past
days visiting the “whore” in South Dakota. According to Susan, the “whore”
would beat Tom with tie-down straps from Tom's semi-truck. Susan also stated
that the “whore” and Tom were trying to kill her by giving her a sexually
transmitted disease (STD). McClure personally drove Susan home after Tom was
transported to Lincoln, and Susan then drove herself to Bryan hospital in Lincoln.

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Investigator Wendy Ground from the Lincoln Police Department arrived at
Bryan hospital at approximately 10:20 p.m. Ground questioned Susan about Tom's
injuries. Susan told Ground that Tom had returned home that morning. He looked
pale, and he had stated that he did not feel well. Susan told Ground that Tom was
apologetic and that he had told her he had made a mistake. According to Susan,
Tom said his alleged mistress did not love him and that the mistress went “psycho”
and wanted to kill him. Susan told Ground that the mistress had previously tried to
kill Susan by cutting her vehicle's brake lines.
Ground asked Susan about Tom's medical history. Susan stated that Tom
had been feeling weak and clumsy for the past 2 ½ years. Susan stated that he was
diagnosed with an STD 1 ½ years ago. Susan also explained that the current cut on
Tom's lip was caused by a pipe when Tom was working with a cow.
After Tom had been declared dead, Ground asked Susan if she was willing
to go to the police headquarters for an interview. Susan agreed.
INTERROGATION OF SUSAN AT POLICE HEADQUARTERS
After arriving at the police headquarters at approximately 1 a.m., Ground
placed Susan in an interview room. Ground left the room, and Susan began
working on her written statement. Susan was left alone in the interview room from
1:12 to 3:04 a.m.
At approximately 3:04 a.m., Ground reentered the interview room. At 3:08
a.m., Ground read Susan her Miranda rights and Susan told Ground that she
understood her rights. Susan proceeded to sign the Miranda waiver.

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Ground began the interrogation by asking general questions about Tom's
injuries and his whereabouts for the week. Susan repeated the facts as she had
stated at Bryan hospital.
Susan stated Tom went to Seward, Nebraska, on Monday, March 7, 2011,
for a job application and from there he went directly to South Dakota. Susan told
Ground that she had talked to him on her cell phone on Monday, March 7, for
approximately 44 minutes. According to Susan, Tom indicated that he wanted to
be with “that thing.” On March 8, Susan and Tom talked for 5 minutes, and Susan
told Ground that she likely screamed at him because she was not happy.
At approximately 3:22 a.m., Susan told Ground that she was exhausted. But
she continued to talk. Susan explained that the next time she heard from Tom was
on Friday morning. She again repeated the same story of what had occurred that
day. At approximately 3:34 a.m., Susan stated that she needed some sleep because
she was exhausted.
The questioning continued, and Susan stated that she had confronted Tom
when he came home on Friday morning because she was angry. Susan told Ground
that she cannot say for sure that Tom drove home and that she does not know how
he could have driven in his condition.
At approximately 3:41 a.m., Investigator Robert Farber entered the room and
silently sat at the table. At 3:42 a.m., Susan began crying, and at 3:43 a.m., she
stated, “I'm tired. I wanna go to bed, please. I'm done, I wanna go to sleep. I'm
tired.” Farber immediately interrupted her and introduced himself. Farber then told
Susan that he had “a couple questions.”

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Farber began questioning. He asked Susan when Tom and she were married
and whether they have common children. Farber questioned Susan about her
relationship with Tom and about Tom's alleged relationship with his mistress. The
questions became more directed and intense as Farber continued the interrogation.
In response to the questioning, Susan stated that everybody called Tom a
“wheeney” and that he took the beatings from his alleged mistress. Susan also
stated that Tom had slapped her in Minnesota. Susan explained that she was
arrested for that incident because she decided to not tell the police that Tom had
slapped her.
At approximately 4 a.m., Susan again stated, “I'm getting tired, I'm done, I'm
tired.” Farber interjected again before Susan completed the statement. Farber asked
Susan if she had anything to do with the injuries. Susan answered no; Farber
continued to ask questions, and Susan continued to answer. For the next 18
minutes, the questions from Farber became more pointed and directed.
At 4:18 a.m., Susan exclaimed, “I want a lawyer, please. I'm tired of this.” “I
will talk [to] them and they, I want some sleep, please.” “I didn't, I will, I just
wanted to live and I loved him so much, and I just wanted to live and he wanted a
divorce, and I just wanted to live with him.... I loved him.” Farber said “okay” and
left the room almost immediately. Ground followed.
Susan laid her head down at the table for approximately 30 seconds, stood,
and grabbed her keys to leave. Susan opened the door to the interview room and
asked to have a cigarette. Ground told her to take a seat. Susan turned around and
mumbled, “So sorry. I'm sorry.” Ground apparently paused to hear what Susan said

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and then reentered. Ground silently took a seat at the table in the same spot she sat
during the entire interrogation.
Susan talked uninterrupted for nearly 8 minutes with a slow delivery, while
Ground sat and listened. Susan stated:
So sorry. I'm sorry. (inaudible) beat by that whore. He used to come
home, bruises, bloody nose, black eyes. He's got scars on his back that
are not from me. He's got marks on him that are not from me. He'd
come home and, well, he'd tell his boss (inaudible) on the trip. He'd
tell me he did it on the truck going to (inaudible). Then he'd turn
around, go to Sioux Falls and that Gloria. Oren called me today and
asked if I'd seen your face. It's all bruised up. I told him that fuckin'
cunt you're married to did it. (inaudible) I didn't ever touch him.
Didn't ever touch him. When I slapped him in Fairbury, not Fairbury,
in (inaudible), what the name of that town? I can't think of it, Burger
King, God. The car pulls in there, parked, to get a burger but on the
way in is when he finally admitted he'd been sleeping with that thing.
Finally admitted it. He got our money, went into Burger King. I got
out of the truck and proceeded to walk across the highway to the other
little truck stop across the road and he followed me over there. Came
up to me, grabbed one of the dogs and I picked my leg up. Leave it
alone. And then I proceeded, I walked, was walking, trying to call my
son to come get me but he wouldn't answer his stupid phone. Standing
there at the back, I'm like I'm going home. I'm going home. Well, fine,
I'll take you home. I don't know. I'm going home. That's when he
shoved me into the wall and cracked me in the jaw. And I slapped
him. Some kid walked out of Burger King. So I'm yowling so he
called the cops. Next thing I know they're showing up. He said I'll
take you home, I'll take you home. Fine, I'll take you home. Fine, I'll
take you home. Then we got in the truck. Next thing I know there's the
cops. Everybody thinks Tom is such an innocent man. He used to be.
He used to be the most loving, gentle, sweet man you could meet. Till
he met that (inaudible). Then they started molesting children. I still
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say I think he was on drugs. Cuz you don't drive 14, 16 hours with
nothing. My Blazer for one hasn't ever had a problem with the brakes.
I hit a deer. Well, come to find out my front brakes are disconnected.
Huh. Excuse me. I don't know. I just know that (inaudible) no more
getting shoved. (inaudible) I didn't poison him. He is what he is from
what he plays with. (inaudible) He told me he was going to kill me.
(inaudible) kill me. (inaudible) Am I under arrest?
Ground told Susan that the decision for arrest was up to the police department in
Fairbury, Nebraska. Ground answered some questions from Susan, but did not ask
Susan any questions.
Susan continued:
Self-defense, because I don't bruise and he does. That's pretty much
the way that goes. (inaudible) she did (inaudible) to him. For what she
did to him. He wasn't the man I married. What I told you about it is all
true. It does deal drugs, (inaudible) drugs, go psycho. And it went
psycho on him more than once. Does molest children. Little boy's
name's Chris.... I have to be arraigned within 24 hours. I know that,
why not. Just like the deal in Minnesota. And he'll walk away scott
free. And there's a lot of the injuries he had [that were] not from me.
The worse one he get that I can remember is falling off the ladder.
That one scared me. Why didn't I just leave. Why didn't I just run.
Because he always showed up. He always showed up. (inaudible) I
need some sleep. (inaudible) so tired. I just, I just need somebody to
talk for me right now, I'm so tired. I'm too tried. I haven't (inaudible)
for two days. Could you? I want a cigarette.
Ground responded: “Okay, just be patient with us.” Susan continued:
No, I want a cigarette. I want a cigarette. Then He did take off and go
back to S.D. (inaudible) either. It's all partly true. The whole story is
9

partly true. I don't know. He came back beaten up from S.D. too. I
didn't hit him in the head. (inaudible) when he fell on it. I stepped on
it. That was after he threw it at me is how it ended up there. I'm not
under arrest. I can go outside and have a cigarette if I want.
After a back and forth conversation between Susan and Ground, Susan stated,
without being questioned:
(inaudible) you'll arrest me because that's the way it always goes. Let's
(inaudible) her and she's the one that always gets in trouble.
(inaudible) self defense, self preservation. They made sure of it. It
takes a heck of a hit for me to bruise but ... make sure that and Tom
knew it.
Shortly thereafter, an unidentified female officer entered the room. Ground and the
female officer took pictures of Susan's bruised hands and forearms. The
interrogation video ends. Susan was subsequently arrested and charged with first
degree murder and use of a deadly weapon to commit a felony.
HEARING ON MOTION TO SUPPRESS INTERROGATION
On June 13, 2011, Susan filed a motion to suppress her statements given on
March 12, which she argued were obtained in violation of her constitutional rights.
Susan argued that there were three different statements made by her that invoked
her constitutional right to end the interrogation. At 3:43 a.m., Susan stated, “I'm
done, I wanna go to sleep. I'm tired.” At 4 a.m., Susan stated, “I'm getting tired, I'm
done, I'm tired.” And the last relevant statement was made at 4:18 a.m., when
Susan stated, “I want a lawyer, please. I'm tired of this.”

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At the hearing, the district court accepted a joint stipulation that Susan was
in custody at the time of the interrogation.
In its order, the district court found Susan's first two statements were not
unequivocal and unambiguous statements that she wanted to cut off the
questioning. Additionally, the court found that all of the statements made by Susan
after exercising her right to counsel were voluntarily made and were not the result
of the functional equivalent of interrogation.
Susan filed a motion to reconsider. Upon reconsideration, the district court
suppressed the statements made from 4 to 4:18 a.m., because her statement that she
was “done” was unequivocal and unambiguous. However, statements made before
4 a.m. were admissible, because Susan had not yet invoked her right to end
questioning. The district court found that statements made after 4:18 a.m. were
admissible, because they were not the result of questioning or the functional
equivalent.
RULE 404 HEARING
On January 26, 2012, the State filed an “Amended Motion to Conduct
Hearing Pursuant to Neb.Rev.Stat. § 27–104 Regarding the Admissibility of § 27–
404(2) Evidence.” A hearing was held on the same date (rule 404 hearing), and
evidence was accepted. There are three prior “bad acts” that the State wanted
admitted for limited purposes.
For the first prior “bad act,” the State offered the testimony of then-police
officer Nicholas Schwalbe of Jackson, Minnesota. Schwalbe testified that on May
31, 2010, he received a call of a fight in progress at a truckstop. He identified the
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driver as Tom and the passenger as Susan. Schwalbe observed that Tom had a
black eye, a fresh wound under that eye, and scabbing on his face, ear, and neck, as
well as spots of fresh blood rolling down his neck. Susan was placed under arrest.
Susan told Schwalbe that they were fighting because Tom was cheating on her.
The second event occurred in August 2010. James Platt, Susan's son, and
Sharon Platt, James' wife, testified that Susan and Tom unexpectedly came to live
with them that August. Susan told them that she and Tom needed to get away from
their home, which was in South Dakota at the time. Both James and Sharon
testified that Tom was “in bad shape.” Tom's face was beaten and swollen, and he
had bloody ears. When asked, Susan told James that the injuries were caused by a
truckstop robbery. James testified that Susan had for years believed Tom was
unfaithful with someone from work. Shortly thereafter, James testified that Susan
and Tom moved to Jefferson County, Nebraska.
The third event occurred in late 2010. James and Sharon visited Susan and
Tom at their new home in Jefferson County. Both testified that Tom looked “
‘terrible.’ ” He had cuts on his face and a split lip. Sharon asked Tom about his
facial injuries, and Susan replied for Tom that the injuries happened at work when
“the pigs got him.”
At the hearing, the State also offered the testimony of McClure, Brian Bauer,
and Ground. McClure testified about Susan's story that Tom had gone to South
Dakota “probably up visiting his girlfriend.” She testified about what Susan had
told her at the hospital.
Bauer, who had employed Tom on his farm in Jefferson County, testified
that Tom would come to work every 2 to 3 weeks visibly sore with bruises on his
12

face, black eyes, split lips, and marks on his hands. According to Bauer, these
injuries did not occur at work.
Ground testified that at the hospital, Susan stated that Tom's facial injuries
and split lip were caused by working on the farm. Susan told her that the split lip
was caused by a pipe when Tom was working with a cow.
Based on the evidence presented, the district court found that the May 31,
2010, incident in Minnesota was admissible as it pertains to the injuries observed
on Tom and to Susan's statement as to the reason for their altercation, for the
specific and limited purposes of demonstrating the existence of motive and intent.
The district court further ordered that all three incidents were admissible for the
specific and limited purposes of negating, or demonstrating the existence of, intent,
identity of the perpetrator, and absence of mistake or accident.
TRIAL
A jury trial was held on February 21, 2012. The State offered the testimony
of the 911 dispatcher, the responding emergency personnel, the investigating
officers, Farber, Ground, McClure, Bauer, Schwalbe, and James and Sharon. The
State offered the video interrogation of Susan at the police headquarters, with the
footage from 4 to 4:18 a.m. redacted. The three prior bad acts that were the subject
of the rule 404 hearing were also presented to the jury. In addition, the following
evidence was presented.

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EVIDENCE FOUND AT HOME
The DeJong home was searched on March 12, 2011. Tom's Chevrolet Blazer
was parked in the detached garage. No evidence was found in the garage or either
in or on the Blazer. Susan's white pickup truck was processed on March 15. Tom's
blood was found on the hood and fender of the truck. Inside the pickup truck, there
was a red duffelbag and a blue denim bag.
In the red bag, investigators found women's clothing, a yellow hammer, a
blue hammer, toiletry items, men's pajamas, and Tom's wallet. The blue bag
contained a computer, a lug wrench, and a cell phone.
DNA tests were conducted on this evidence, and results showed that the blue
hammer had a mixture of Tom's and Susan's DNA. Susan's DNA was found on the
handle of the yellow hammer, and a mixture of DNA was found in a blood sample
on the claw area of the yellow hammer. Tom was the major contributor of that
DNA. Tom's DNA was found in the bloodstains on the men's pajamas.
In the house, at least 70 blood drops were found throughout. No large pools
of blood were found. Blood was found in the living room, kitchen, bathroom,
dining room, and the master bedroom. Blood was also found on clothing items
seized from the laundry room. A forensic scientist testified to which stains were
left by Tom, by Susan, or by a mixture of the two. Tom's DNA was found
repeatedly in the bloodstains through–out the house.

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MEDICAL TESTIMONY
Dr. Craig Shumard was working in the emergency room when Tom was
brought by ambulance to the Jefferson Community Health Center. Shumard
described Tom's injuries to the jury and testified that the injuries did not arise from
natural causes or accidents. He testified that Tom's injuries were inconsistent with
typical farmwork injuries.
Dr. Stanley Okosun, a trauma surgeon at Bryan hospital, testified to his
treatment and care of Tom. Okosun testified that Tom's high levels of myoglobin
indicated that the trauma inflicted on Tom occurred 12 to 24 hours prior to his
arrival at Bryan hospital. Okosun testified that Susan told him that Tom's bruising
was caused by working on a pig farm. Okosun testified that the explanation was
highly unlikely. He further testified that with the injuries suffered, Tom could not
have driven home on the Friday morning before his death. According to Okosun,
Tom's injuries could not have been caused by natural causes or a car accident. He
attributed Tom's injuries to blunt force trauma caused by an assault.
Dr. Juris Purins was the radiologist who reviewed the CAT scan performed
on Tom at Bryan hospital. The CAT scan revealed unusually severe head and brain
injuries which are typically associated with a patient's not breathing. Tom's nose
had a comminuted fracture, which means it was fractured in multiple places. Tom
had a dislocation of the lens in his right eye, which was another unusual injury.
Purins described a tremendous number of fractures within the chest cavity,
including the spine, ribs, and scapula. One of the fractures was an old injury but
the rest were recent. Purins also identified a fracture of the hyoid bone in the neck.
Purins testified that the fractured hyoid bone, along with subcutaneous
emphysema, indicated a potential choking injury. Purins opined that the injuries
15

were the result of a “pretty severe beating,” maybe from a hammer, and that the
injuries would have prevented Tom from driving or walking.
Dr. Jean Thomsen was the pathologist who performed Tom's autopsy.
Thomsen stated that she had “never seen someone so extensively injured.” After
the autopsy, Thomsen found the cause of death to be “[b]lunt force trauma to the
head, neck, chest and extremities.” In her opinion, Tom's death was a homicide.
In her autopsy report, Thomsen found defects on Tom's hands and arms that
she described as defensive wounds. Thomsen found that the injuries were caused
by some type of instrument. Thomsen testified that the injuries were C-shaped and
semicircular and may have been caused by a hammer. The autopsy also confirmed
a fracture of the hyoid bone in the neck, but she did not find other signs usually
associated with manual strangulation beyond neck bruising.
Defense counsel offered the expert testimony of Dr. Robert Bux, a forensic
pathologist. Bux agrees that this case was a homicide caused by multiple instances
of blunt force trauma. He stated that he has “never personally seen a case like this
with so much soft tissue contusion.” Tom was “really beaten.” Bux opined that the
injuries occurred at least 24 hours prior to death, and maybe as many as 36 hours
prior. He agrees that the wounds on Tom's hands and arms indicate that Tom was
attempting to ward off an attack.
Bux disagreed that a clawhammer was used, because there were no circle
bruises from the hammerhead, no raking marks from the claw, and no pattern of
contusions consistent with the side of a hammer. He opined that based on a lack of
hemorrhaging around the hyoid bone, the bone had been fractured during the
autopsy. He argued that the brain injuries were caused not by the blunt force
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trauma but by Tom's not breathing while still at home. Bux also testified that Tom
would have been able to walk and talk immediately after the beating he suffered,
but that his condition would have continued to deteriorate. Bux also opined that
because of the relatively small amounts of blood found in the home, the assaults
that caused Tom's facial injuries likely did not occur in the home.
INSTANT MESSENGER CHATS
An investigator seized Susan's computer and found relevant Internet instant
messenger chats. James, Susan's son, confirmed the messages were sent to him
from Susan under her handle “the_piglady.” On September 24, 2010, the “the_
piglady” wrote in reference to Tom, “i can't do this ... staying here anymore,” “i've
come to realize i literally hate him.” She continued, “now i wish he was dead ... i
really hate him more than i have ever hated ANYONE.” On February 14,
“the_piglady” wrote that “i'm looking at getting rid of tom” and “i can't take or do
this anymore.”
TOM'S WHEREABOUTS WEEK OF HIS DEATH
Beyond testifying about Tom's injuries while working at the farm, Bauer
testified that on the Tuesday before his death, Tom worked a full day. Tom was
bruised and had trouble getting around. On Wednesday and Thursday, Tom called
in sick. On Thursday, Bauer drove by the house and noticed that both vehicles
owned by the DeJongs were at the house, including Tom's Blazer.
James testified that he had a telephone conversation with Susan on the
Thursday morning before Tom's death. James asked Susan what size tires were on
Susan's white pickup truck. James testified that Susan asked someone else in the
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house. James assumed that the person was Tom and was surprised that Tom was
not working. James testified that Susan did not mention in that telephone call that
Tom was in South Dakota.
Cell phone records were also introduced into evidence. On March 8, 2011,
the Tuesday before Tom's death, there were four calls from Susan's cell phone to
Tom's cell phone and the calls “hit” or “pinged” off the nearby cell towers in the
Fairbury and Hebron, Nebraska, areas. On Wednesday and Thursday, there were
calls from Tom's cell phone to Bauer's cell phone. Both calls “hit” off cell towers
in the Fairbury and Hebron areas.
ALLEGED MISTRESS
The woman who Susan alleged was Tom's mistress also testified at trial. The
woman worked as a dispatcher for a small trucking company in South Dakota.
Tom had been a truckdriver for that company. The woman testified that she and
Tom had a working relationship only. She never spent time with Tom socially. She
never had any type of sexual contact with Tom. She testified that she had no reason
to want to hurt Tom or Susan. The woman testified that from March 8 to 11, 2011,
she was on a trip to Minnesota and had no contact with Tom. She testified that she
did not inflict Tom's injuries.
CONVICTIONS AND SENTENCES
After deliberation, the jury found Susan guilty on count I, murder in the first
degree, and guilty on count II, use of a deadly weapon to commit a felony. Susan
was sentenced to life imprisonment for count I and 50 to 50 years' imprisonment
on count II, to be served consecutively.
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B.

Direct Appeal

DeJong appealed her convictions and sentences to the Nebraska Supreme
Court. (Filing No. 17-1.) She alleged on direct appeal that the trial court erred by
(1) admitting at trial the statements she made to investigators between 3:43 to 4
a.m.; (2) admitting at trial the statements she made to investigators after 4:18 a.m.;
(3) admitting at trial evidence of Tom’s injuries on prior occasions and her related
statements concerning the injuries; and (4) admitting at trial evidence of Tom’s
injuries on prior occasions and her related statements concerning the injuries,
because the probative value of the evidence was substantially outweighed by the
danger of unfair prejudice. (Filing No. 17-4 at CM/ECF p. 7; Filing No. 17-7 at
CM/ECF pp. 8-9.) DeJong was represented both at trial and on direct appeal by
lawyers from the same office. (See Filing No. 17-1; Filing No. 18-1 at CM/ECF p.
2.)
The Nebraska Supreme Court affirmed DeJong’s convictions and sentences
in a written opinion. See DeJong, 845 N.W.2d at 883.
C.

Postconviction Action

DeJong filed a motion for postconviction relief in state district court. (Filing
No. 17-16 at CM/ECF pp. 2-16.) DeJong argued that (1) she received ineffective
assistance of counsel because counsel failed to “investigate further” and question
more extensively numerous witnesses who testified at trial and failed to argue on
direct appeal that there was insufficient evidence to support her convictions and
sentences; (2) the state district court erred when it admitted evidence related to
prior bad acts and other evidence; and (3) she is actually innocent. (Id.; Filing No.
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17-5 at CM/ECF p. 13.) The state district court denied postconviction relief
without holding an evidentiary hearing. (Filing No. 17-16 at CM/ECF pp. 21-23.)
DeJong filed two separate notices of appeal from the same postconviction
judgment, which resulted in the docketing of two separate state appellate cases.
(Filing No. 17-2; Filing No. 17-3.) The Nebraska Supreme Court dismissed the
first appellate case when DeJong failed to file a brief. (Filing No. 17-3 at CM/ECF
p. 2.) In the other appellate case, the Nebraska Supreme Court affirmed the state
district court’s denial of postconviction relief in a written opinion. See State v.
DeJong, 872 N.W.2d 275 (Neb. 2015).
D.

Habeas Corpus Action

DeJong filed her habeas petition and an amended petition. (Filing No. 1;
Filing No. 13.) Respondents1 filed an answer, brief, and the relevant state court
records in response to the habeas petition and amended petition. (Filing Nos. 17,
18, 19, 23, 24.) DeJong filed a brief in support of her petitions. (Filing No. 31.)
Respondents notified the court that they would not be filing a reply brief. (Filing
No. 33.) This matter is fully submitted for disposition.

1

Assistant Attorney General Erin E. Tangeman entered her appearance on
behalf of Respondent State of Nebraska. (See Filing No. 1; Filing No. 12.)
Thereafter, DeJong filed her amended petition and added Respondents Warden
Denise Skrobecki, Director Scott R. Frakes, and the Nebraska Correctional Center
for Women. (Filing No. 13.) The court will assume that Ms. Tangeman represents
all Respondents in this matter as she responded to DeJong’s amended petition in
her answer and brief. (Filing No. 23; Filing No. 24.) In any event, the court’s
reasoning does not differ amongst Respondents.
20

II. STANDARDS OF REVIEW
A.

Exhaustion Requirement
As set forth in 28 U.S.C. § 2254:
(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)

there is an absence of available State corrective
process; or

(ii)

circumstances exist that render such process
ineffective to protect the rights of the applicant.

28 U.S.C. § 2254(b)(1).
The United States Supreme Court has explained the habeas exhaustion
requirement as follows:
Because the exhaustion doctrine is designed to give the state courts a
full and fair opportunity to resolve federal constitutional claims before
those claims are presented to the federal courts . . . state prisoners
must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s
established appellate review process.

21

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). A state prisoner must therefore
present the substance of each federal constitutional claim to the state courts before
seeking federal habeas corpus relief. 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). “In order to fairly present a
federal claim to the state courts, the petitioner must have referred to a specific
federal constitutional right, a particular constitutional provision, a federal
constitutional case, or a state case raising a pertinent federal constitutional issue in
a claim before the state courts.” Carney v. Fabian, 487 F.3d 1094, 1096 (8th Cir.
2007) (internal citation and quotation marks omitted).
A state prisoner must therefore “fairly present” the substance of each federal
constitutional claim to the state courts before seeking federal habeas corpus relief.
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.
22

152, 162 (1996)). Stated another way, if a claim has not been presented to the
Nebraska appellate courts and is now barred from presentation, the claim is
procedurally defaulted, not unexhausted. Akins, 410 F.3d at 456 n.1.
Under Nebraska law, “[a]n appellate court will not entertain a successive
motion for postconviction relief unless the motion affirmatively shows on its face
that the basis relied upon for relief was not available at the time the movant filed
the prior motion.” State v. Ortiz, 670 N.W.2d 788, 792 (Neb. 2003). Additionally,
“[a] motion for postconviction relief cannot be used to secure review of issues
which were or could have been litigated on direct appeal.” Hall v. State, 646
N.W.2d 572, 579 (Neb. 2002). In such circumstances, where a Nebraska state court
rejects a claim on state procedural grounds, and issues a “‘plain statement’ that it is
rejecting petitioner's federal claim on state procedural grounds,” a federal habeas
court is precluded from “reaching the merits of the claim.” Shaddy v. Clarke, 890
F.2d 1016, 1018 (8th Cir. 1989). 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 marks omitted).
B.

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). A
23

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.
Williams v. Taylor, 529 U.S. 362, 405-406 (2000). 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, 562 U.S. 86, 102 (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. 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.”).
24

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 ineffectiveassistance 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).
III. DISCUSSION
A.

Claim One

DeJong asserts that her conviction was obtained by a violation of the
privilege against self-incrimination. (See Filing No. 1 at CM/ECF p. 5.) The
Nebraska Supreme Court considered and rejected this argument in DeJong’s direct
appeal. The court agreed with DeJong that her statements from 3:43 to 4 a.m.
should have been suppressed because the interrogation continued after she invoked
her right to remain silent, but concluded that the error was harmless. DeJong, 845
N.W.2d at 873-74. The court determined that the error was harmless because (1)
the untainted, relevant evidence strongly supported DeJong’s guilt, and (2)
DeJong’s statements were cumulative and “very minor” relative to the rest of the
untainted record. Id. at 875-77. The court concluded that “there is no reason to
25

believe that Susan’s statements from 3:43 to 4 a.m. materially influenced the jury’s
verdicts.” Id. at 877.
The admission of a coerced confession is a trial error subject to the same
harmless error analysis as other erroneous admissions of evidence. Simmons v.
O'Brien, 77 F.3d 1093, 1095 (8th Cir. 1996) (citing Arizona v. Fulminante, 499
U.S. 279, 310 (1991) (erroneous admission of an involuntary confession does not
require reversal if, on review of the evidence as a whole, the error was harmless
beyond a reasonable doubt). The applicable harmless error analysis in a habeas
proceeding is whether the state trial error had a “substantial and injurious effect or
influence in determining the jury's verdict.” Fry v. Pliler, 551 U.S. 112, 116 (2007)
(quoting Brecht v. Abrahamson, 507 U.S. 619, 631 (1993)); See also Jackson v.
Norris, 573 F.3d 856, 858 (8th Cir. 2009).
In this case, the majority of DeJong’s statements from 3:43 to 4 a.m. were
cumulative to her properly admitted statements made to Ground at the hospital
prior to her interrogation. Moreover, the untainted, relevant evidence against
DeJong was overwhelming. The evidence established (1) that DeJong lied about
Tom’s whereabouts before the murder, (2) that DeJong’s story that Tom was
beaten by his alleged mistress was fabricated, (3) that DeJong’s motive for killing
Tom was because she believed he had a mistress, (4) that DeJong sent Internet
instant messages in which she stated that she “hate[d]” Tom, wished he were dead,
and that she was “looking at getting rid” of him, (5) that no one other than DeJong
spent time with Tom after he sustained his injuries, (6) that Tom’s injuries were
caused by some type of instrument, possibly a hammer, (7) that DeJong had
bruises and sores on her palms consistent with swinging a hammer, (8) that a
bloodstained hammer recovered in DeJong’s truck had a mixture of her and Tom’s
DNA; her DNA was found on the handle and his DNA was found on the head of
26

the hammer; and (9) that DeJong had assaulted Tom on multiple occasions prior to
his death. See DeJong, 845 N.W.2d at 875-77. Based on these circumstances, the
admission of DeJong’s statements from 3:43 to 4 a.m. did not have a “substantial
and injurious effect or influence” on the jury’s verdict. DeJong is entitled to no
relief on Claim One.
B.

Claims Two and Four

DeJong asserts that she was denied access to an attorney during
interrogation. (See Filing No. 1 at CM/ECF p. 5.) She also asserts that she was
coerced into a confession. (Id. at CM/ECF p. 7.) The Nebraska Supreme Court
necessarily considered and rejected these assertions on direct appeal. The Nebraska
Supreme Court considered whether DeJong’s statements made after 4:18 a.m.
should be suppressed because she invoked her right to counsel. See DeJong, 845
N.W.2d at 877. The court determined that DeJong’s statements after 4:18 a.m.
were voluntary because she clearly initiated the conversation with Ground and
there was no interrogation after she initiated it. Id. at 877-78.
The Nebraska Supreme Court disagreed with DeJong that “she was
compelled to talk because ‘the cat was already out of the bag’ due to her previous
inadmissible statements.” Id. at 878. The court reasoned:
The U.S. Supreme Court has stated that “after an accused has
once let the cat out of the bag by confessing, no matter what the
inducement, he is never thereafter free of the psychological and
practical disadvantages of having confessed. He can never get the cat
back in the bag. The secret is out for good.” But the fact that the
defendant has shared a secret in an inadmissible statement does not
preclude the defendant from later waiving his or her constitutional
rights after the conditions that induced the original statement have
27

been removed. The U.S. Supreme Court has explicitly rejected any
“rigid rule” that suppresses the subsequent statement and has instead
directed courts to focus on the voluntariness of any subsequent
statement. To do so, a court must evaluate the “entire course of police
conduct” and the surrounding circumstances, including whether or not
the conditions that made the first statement inadmissible had been
removed.
In Missouri v. Seibert, the surrounding conditions made the
subsequent statement inadmissible. In that case, the police
purposefully did not give the suspect a warning of his rights to silence
or counsel until the inadmissible interrogation had produced a
confession. Subsequent to the confession, the officer then gave the
suspect his Miranda rights and then reinterrogated him until he
confessed again. The U.S. Supreme Court held that the subsequent
confession repeated after the Miranda warnings were given was
inadmissible. The plurality opinion reasoned that “[u]pon hearing
warnings only in the aftermath of interrogation and just after making a
confession, a suspect would hardly think he had a genuine right to
remain silent, let alone persist in so believing once the police began to
lead him over the same ground again.” The plurality surmised that the
suspect would be perplexed as to why his or her rights were being
discussed at that point. Further, telling the suspect that what he or she
says will be used against them creates an inference that the prior
statements made by the suspect will be used against them. Thus, the
actions of the officer are “likely to mislead and ‘depriv[e] a defendant
of knowledge essential to his ability to understand the nature of his
rights and the consequences of abandoning them.’” In such a situation,
the unwarned and warned interrogations blended into one
“continuum.”
But in Justice Kennedy's concurring opinion to Seibert, he
reiterated that subsequent statements can be admissible if the
“continuum” was broken by

28

[c]urative measures ... designed to ensure that a
reasonable person in the suspect's situation would
understand the import and effect of the Miranda warning
and of the Miranda waiver. For example, a substantial
break in time and circumstances between the prewarning
statement and the Miranda warning may suffice in most
circumstances, as it allows the accused to distinguish the
two contexts and appreciate that the interrogation has
taken a new turn.
And in Bobby v. Dixon, the Court accordingly held that the
“continuum” between two of the interrogations had been broken and
that therefore, the subsequent confession was admissible. Archie
Dixon was arrested for forgery and was interrogated without receiving
Miranda warnings. During this unwarned interrogation, Dixon readily
admitted to obtaining an identification card from a murder victim and
forging checks with the murder victim's signature. Dixon was booked
for forgery and sent to a correctional facility.
Four hours later, Dixon was transported back to the police
station. Prior to any police questioning, Dixon told the police, “‘I
talked to my attorney, and I want to tell you what happened.’” The
police read Dixon his Miranda rights, and Dixon signed a waiver. The
interrogation began, and Dixon admitted to the murder but attempted
to pin the blame on his accomplice.
The U.S. Supreme Court held that the admission of Dixon's
murder confession was consistent with its precedent. The Court noted
that this was not the sort of two-step interrogation procedure
condemned in Seibert. It found that given all the circumstances, Dixon
had a real choice about giving an admissible statement. Four hours
had passed between Dixon's unwarned interrogation and the receipt of
his Miranda rights, he claimed to have spoken to his lawyer, and he
had learned that the police had additional physical evidence. As the
Court stated, “this significant break in time and dramatic change in
29

circumstances created ‘a new and distinct experience,’ ensuring that
Dixon's prior, unwarned interrogation did not undermine the
effectiveness of the Miranda warnings he received before confessing
to [the victim's] murder.”
The U.S. Supreme Court reinstated the opinion of the Ohio
Supreme Court and noted that its holding did not excuse the officer's
decision to not give Miranda warnings before the first interrogation.
But, the Court observed, the Ohio courts had already properly
recognized the officer's failure and had remedied it by excluding
Dixon's forgery confession and the attendant statements.
Here, we find that the circumstances in the interrogation room
had changed dramatically after Susan's third invocation and that the
change gave Susan a real opportunity to make a voluntary statement.
In coming to our holding, we evaluated the entire course of police
conduct and the surrounding circumstances. This was not a two-step
interrogation technique as in Seibert. Susan was made fully aware of
her rights before any statements were made. However, the police did
ignore Susan's first two invocations and Farber continued to question
Susan for an additional 35 minutes. During those 35 minutes, the
interrogation did become more intense and Susan did make
incriminating statements. Only when Susan requested an attorney did
the interrogation stop and Farber and Ground left the room.
We have established that Farber had previously violated Susan's
right to cut off questioning, and we do not excuse his conduct. But
such conduct resulted in the district court's suppressing Susan's
interrogation statements from 4 to 4:18 a.m. Although the district
court did not suppress Susan's statements from 3:43 a.m., we have
found that the admission of those statements was harmless. As in
Dixon, the prior Miranda violations have been remedied.
The prior Miranda violations do not warrant suppression of
Susan's statements made after 4:18 a.m. The circumstances of the
30

entire situation indicate that the effectiveness of the Miranda
warnings given to Susan was restored when Farber and Ground ended
the interrogation upon Susan's request for an attorney. The actions of
the investigators reasonably demonstrated to Susan that she had
properly invoked her right to an attorney and that the interrogation
was over. Susan faced “ ‘a new and distinct experience.’” After her
two prior invocations, the questioning did not even momentarily stop.
In both instances, the questioning continued and Susan, without
further verbal resistance, continued to answer. Contrary to those
experiences, Susan faced a new experience after her invocation for an
attorney. She was no longer subject to modern interrogation
techniques. The investigators stood and left the room, indicating a
clear intention to end the interrogation. Susan was left alone.
And unlike in Elstad and Seibert, Susan initiated the second
conversation. She was never again subjected to questioning. Susan
made the decision to reinitiate the dialog with the investigators, and
she was not explicitly attempting to clarify or explain her previous
inadmissible statements. Susan, for whatever reason, wanted to tell
more of her story. As the Edwards Court noted:
It is not unusual for a person in custody who previously
has expressed an unwillingness to talk or a desire to have
a lawyer, to change his mind and even welcome an
opportunity to talk. Nothing in the Constitution erects
obstacles that preclude police from ascertaining whether
a suspect has reconsidered his original decision. As
Justice White has observed, this Court consistently has
“rejected any paternalistic rule protecting a defendant
from his intelligent and voluntary decisions about his
own criminal case.”
Therefore, we affirm the district court's determination that
Susan's prior statements, which were made after she invoked her right
to end questioning, did not render inadmissible her statements made
31

after her interrogation ended. We find that Susan's statements after
4:18 a.m. were initiated by Susan and were not the product of
interrogation. Although the cat may have been, in some limited
respects, out of the bag, the fact that the interrogation ended and the
officers left the room had significantly changed the circumstances of
the interrogation process and gave Susan a “real choice about giving
an admissible statement.” Susan's statements after 4:18 a.m. were
voluntary.
Id. at 878–81 (internal citations omitted).
The court agrees with the analysis of the Nebraska Supreme Court. But more
importantly, DeJong has not shown that the Nebraska Supreme 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), or that the court reached “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). DeJong is entitled to no relief on
Claims Two and Four.
C.

Claims Three and Five

DeJong asserts that she was unlawfully detained by investigators. (See Filing
No. 1 at CM/ECF pp. 5, 16.) She also challenges the sufficiency of the evidence.
(See id. at CM/ECF pp. 17-19.) DeJong did not raise these arguments on direct
appeal.2 Because they could have been litigated on direct appeal, Claims Three and
Five are procedurally defaulted. See Hall v. State, supra.

2

Nevertheless, as the Nebraska Supreme Court noted in its postconviction
appeal opinion, it necessarily considered the sufficiency of the evidence in its
32

D.

Claim Six

DeJong asserts that she is innocent. (See Filing No. 1 at CM/ECF pp. 17-19.)
The Nebraska Supreme Court rejected this claim in DeJong’s postconviction
appeal:
We have previously acknowledged the possibility that a
postconviction motion asserting a persuasive claim of actual
innocence might allege a constitutional violation, in that such a claim
could arguably amount to a violation of a movant's procedural or
substantive due process rights. State v. Phelps, 286 Neb. 89, 834
N.W.2d 786 (2013). However, in order to trigger a court's
consideration of whether continued incarceration could give rise to a
constitutional claim that can be raised in a postconviction motion,
there must be “‘[a] strong demonstration of actual innocence’”
“‘because after a fair trial and conviction, a defendant's presumption
of innocence disappears.’” Id. at 94, 834 N.W.2d at 791, quoting State
v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012). Indeed, the U.S.
Supreme Court has held that the threshold is “‘extraordinarily high.’”
Id. at 94, 834 N.W.2d at 791–92, quoting Herrera v. Collins, 506 U.S.
390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993).
In support of her claim that she is actually innocent, Susan relies
heavily on the assertion that there were no direct witnesses to Tom's
murder. She states that “[n]o one ever witnessed anything, verbally or
physically, to prove absolutely without a doubt” that she murdered
Tom. Brief for appellant at 6. Susan also argues that there was
insufficient DNA or other physical evidence found in various
locations, including the DeJong home, to link her to Tom's murder.

analysis of DeJong’s asserted errors on direct appeal. See DeJong, 872 N.W.2d at
289.
33

Although there were no direct witnesses to Tom's murder, when
viewed in the light of the extensive evidence adduced at trial as
summarized in our opinion on direct appeal and quoted above, Susan's
allegations fall well short of the “extraordinarily high” threshold
showing of actual innocence which she would be required to make
before a court could consider whether her continued incarceration
would give rise to a constitutional claim. Susan did not allege facts
sufficient to necessitate an evidentiary hearing. Therefore, we
determine that the district court did not err when it denied relief
without an evidentiary hearing on this claim. We affirm this portion of
the district court's order.
DeJong, 872 N.W.2d at 292.
With respect to the standard for freestanding actual innocence claims, the
Eighth Circuit has similarly concluded:
The Supreme Court has not decided whether a persuasive
demonstration of actual innocence after trial would render
unconstitutional a conviction and sentence that is otherwise free of
constitutional error. See House v. Bell, 547 U.S. 518, 554–55, 126
S.Ct. 2064, 165 L.Ed.2d 1 (2006). The Court has established,
however, that the threshold for any such claim, if it were recognized,
would be “extraordinarily high.” Herrera v. Collins, 506 U.S. 390,
417, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). The threshold, if it
exists, would require “more convincing proof” than the “gateway”
standard that allows for consideration of otherwise defaulted
constitutional claims upon a showing of actual innocence. House, 547
U.S. at 555, 126 S.Ct. 2064; see Schlup v. Delo, 513 U.S. 298, 315,
115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Thus, on a freestanding claim
of actual innocence, it is not sufficient that a petitioner shows even
that it is “more likely than not that no reasonable juror would have
found petitioner guilty beyond a reasonable doubt.” Id. at 327, 115
34

S.Ct. 851. The “extraordinarily high” threshold, if recognized, would
be even higher. House, 547 U.S. at 555, 126 S.Ct. 2064.
Dansby v. Hobbs, 766 F.3d 809, 816 (8th Cir. 2014). DeJong has proffered no new
evidence establishing her factual innocence. “The actual innocence exception is
concerned with claims of actual, not legal, innocence.” Pitts v. Norris, 85 F.3d 348,
350 (8th Cir. 1996). To be clear, for the same reason, DeJong’s claim of actual
innocence does not excuse her procedurally defaulted claims. See generally
Flanders v. Graves, 299 F.3d 974, 977 (8th Cir. 2002) (“a petitioner who can show
actual innocence can get his constitutional claims considered on their merits even
if he cannot show cause and prejudice”) (citing Murray v. Carrier, 477 U.S. 478,
496 (1986)). DeJong is entitled to no relief on Claim Six.
E.

Claim Seven

In her amended petition, DeJong asserts that she was denied effective
assistance of counsel when counsel (a) failed to make various arguments at trial,
(b) did not allow her to participate during trial and in jury selection, and (c) failed
to assert the claims in her habeas petition on direct appeal. (Filing No. 13.)
Because she had the same counsel at trial and on direct appeal, DeJong’s first
opportunity to bring these claims was on postconviction. See State v. Robinson,
827 N.W.2d 292, 302 (Neb. 2013) (“when a defendant was represented both at trial
and on direct appeal by the same lawyer, the defendant's first opportunity to assert
ineffective assistance of counsel is in a motion for postconviction relief.”).
The two-pronged standard of Strickland v. Washington, 466 U.S. 668 (1984)
governs the merits of an ineffective assistance of counsel claim. Strickland requires
that a petitioner demonstrate both that his counsel's performance was deficient, and
that such deficient performance prejudiced the petitioner's defense. Id. at 687. The
35

first prong of the Strickland test requires that the petitioner demonstrate that his
attorney failed to provide reasonably effective assistance. Id. at 687-88. 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.
Judicial scrutiny of counsel's performance must be highly deferential, and a
court must indulge a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance. Knowles v. Mirzyance, 556 U.S.
111, 121-123 (2009). In the habeas context, there is doubly deferential standard of
review because Strickland is a general standard, and habeas review by the very
nature of the remedy requires deference to the separate sovereign's decision. Id.
In her postconviction appeal, the Nebraska Supreme Court rejected
DeJong’s claim that counsel failed to argue on direct appeal that the evidence was
insufficient to support her convictions. The court found that it necessarily
considered the sufficiency of the evidence in its analysis of the errors asserted on
direct appeal. DeJong, 872 N.W.2d at 289. It then set forth the extensive evidence
introduced at trial, as stated in its direct appeal opinion, which established
DeJong’s guilt. Id. at 289-90. The court concluded:
We have reviewed the record in this case, and given the extensive
evidence presented at trial against Susan, we determine that the
records and files in this case affirmatively show that Susan was
entitled to no relief on her claim that there was insufficient evidence
to support her convictions and that counsel's appellate argument failed
to present the issue for our consideration. In connection with this
contention, Susan has failed to suggest any facts which, if proved,
constitute an infringement on her constitutional rights. The record
shows that Susan was not prejudiced by counsel's conduct on direct
36

appeal, and therefore, the district court did not err when it denied
relief on this claim without an evidentiary hearing. We affirm this
portion of the district court's order.
Id. at 290–91. Because counsel presented the sufficiency of the evidence issue for
the Nebraska Supreme Court’s consideration, DeJong’s claim that counsel failed to
raise Claim Five is without merit. Similarly, the Nebraska Supreme Court
considered and rejected Claims One, Two, Four, and Six, so DeJong’s claim that
counsel failed to raise those claims are without merit.
To the extent that DeJong raised the remaining allegations of her amended
petition in her postconviction motion, the Nebraska Supreme Court equally
rejected them in her postconviction appeal when it held:
Susan argues on appeal that certain evidence should not have been
admitted at trial, such as items located during searches, including the
search of the vehicle and home. She also makes allegations in her
postconviction motion regarding other evidence she asserts is
objectionable, but, other than listing a catalog of constitutional
provisions, she does not necessarily direct our attention to specific
constitutional errors regarding these claims on appeal. Her allegations
of conclusions do not require an evidentiary hearing. See State v.
Huston, 291 Neb. 708, 868 N.W.2d 766 (2015). We have reviewed
her motion and have determined that her claims either are speculative
and fail to affirmatively show that she is entitled to relief or are
refuted by the record and files in this case. See id. Accordingly, we
determine that Susan did not allege facts sufficient to necessitate an
evidentiary hearing, and the district court did not err when it denied
postconviction relief without an evidentiary hearing.
[. . .]

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We find no merit to Susan's assignments of error. Therefore, we
determine that the district court did not err when it denied her motion
for postconviction relief without an evidentiary hearing.
Id. at 292–93. DeJong is entitled to no relief on Claim Seven. Accordingly, to the
extent that DeJong attempts to show “cause” and “prejudice” by attacking her
appellate counsel in order to excuse procedural default of her claims, she has
failed.
IV. CERTIFICATE OF APPEALABILITY
A petitioner cannot appeal an adverse ruling on his petition for writ of
habeas corpus under § 2254 unless he or she 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, DeJong has failed to make a substantial showing of the denial of
a constitutional right. The court is not persuaded that the issues raised in DeJong’s
petitions 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.
The Petition for Writ of Habeas Corpus and amended petition (Filing
No. 1; Filing No. 13) are dismissed with prejudice.
2.
The court will enter a separate judgment in accordance with this
Memorandum and Order.
3.

The court will not issue a certificate of appealability.

Dated this 9th day of February, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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