Smith v. Frakes

Filing 36

MEMORANDUM AND ORDER - the motion for writ of habeas corpus under 28 U.S.C. § 2254 (filing no. 1 ) is denied and dismissed with prejudice. No certificate of appealability has been or will be issued. A separate judgement will be entered. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WILLIAM E. SMITH,
Petitioner,
v.
SCOTT R. FRAKES,
Respondent.

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4:16CV3162

MEMORANDUM AND ORDER

William E. Smith (Smith or Petitioner) has filed a petition for writ of habeas
corpus challenging his state convictions. The Respondent has filed an answer, the
relevant portions of the record below, and a brief.
Smith has not directly responded to Respondent’s brief. Instead he sought a stay
and abeyance order and then, after that motion was denied for failure to show good
cause why the motion should be granted1, he filed a second motion for leave to file
another stay and abeyance motion which was also denied.
After an earlier extension, Petitioner’s deadline for submitting a responsive
brief was Monday, July 17, 2017. (See filing no. 31.) Although Smith has tried to
postpone the day of reckoning, that day has now come. The petition for writ of habeas
corpus will be denied with prejudice and no certificate of appealability will be issued.
Smith’s claims are either procedurally defaulted or lack substantive merit.
Concisely, I next explain why that is so.

1

See filing no. 30, for Respondent’s excellent explanation why a stay and
abeyance order would have been an abuse of my discretion.

Brief Background
Smith was involved in an altercation in 2008 where he shot a man after a fight
ensued outside a “Gentlemen’s Club.” Consequently, the State charged Smith with
one count of attempted second degree murder, a Class II felony; one count of first
degree assault, a Class III felony; and one count of use of a weapon to commit a
felony, a Class III felony. Following a trial, a jury found Smith guilty of the crimes
charged. Smith was sentenced to 25 to 35 years of imprisonment for attempted second
degree murder and 15 to 20 years of imprisonment for first degree assault, to run
concurrently. He was sentenced to 15 to 20 years of imprisonment for use of a weapon
to commit a felony, to run consecutively with the other sentences.
On direct appeal, the Nebraska Supreme Court affirmed the convictions except
for the attempted second-degree murder conviction. As to that charge, the court
reversed and remanded for a new trial. State v. Smith, 822 N.W.2d 401 (Neb. 2012)
(observing that the Nebraska Supreme Court had in effect changed the law after
Petitioner’s trial and it had created the crime of attempted voluntary manslaughter;
Petitioner’s trial counsel was not ineffective for failing to request an instruction on a
law that had not yet been announced by the Nebraska Supreme Court, but remanding
for a new trial and the application of the new law).
In lieu of a new trial, Smith pled no contest to an amended charge of attempted
voluntary manslaughter. For that plea, he was sentenced to 20 months to 5 years of
imprisonment, to be served concurrently with his prior sentence of 15 to 20 years of
imprisonment for first degree assault. The prior sentence of 15 to 20 years of
imprisonment for use of a weapon to commit a felony remained consecutive to the
other sentences.
Smith then filed a motion for post-conviction relief. The Nebraska Supreme
Court affirmed the denial of that motion. Among other things, the Nebraska Supreme
Court ruled that:
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Smith’s convictions for first degree assault and use of a weapon to commit a
felony were final judgments, and his [later no contest] plea without challenging
the information did not affect those convictions. Therefore, Smith’s
contention—that his plea to a “reduced charge of attempted voluntary
manslaughter ... effectively eradicated and eliminated the charges of first degree
assault and use of a weapon”—is without merit.
State v. Smith, 883 N.W.2d 299, 307 (Neb. 2016).
Claims
In Claim One, Petitioner asserts that he: (A) was denied due process of law
when the assault and weapons convictions were not also reversed; (B) was denied
effective assistance of trial counsel regarding the assault and weapons convictions;
and (C) was denied due process of law regarding the assault and weapons convictions
because of the multiple suggestive lineups that took place prior to the in-court
identification. In Claim Two, Petitioner asserts that, regarding the proceedings on
remand, Petitioner’s entry of a plea for attempted voluntary manslaughter in those
proceedings was induced by ineffective assistance of counsel.
Analysis
I agree with Respondent that (1) Ground A of Claim One, Ground C of Claim
One, and Claim Two have been procedurally defaulted; and (2) Ground B of Claim
One has no substantive merit.
Exhaustion and Procedural Default
As set forth in 28 U.S.C. § 2254:

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(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.
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).
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“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).
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)).
To be precise, a federal habeas court may not review a state prisoner’s federal
claims if those claims were defaulted in state court pursuant to an independent and
adequate state procedural rule “unless the prisoner can demonstrate cause for the
default and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Nebraska Law Relevant to Procedural Default
Under Nebraska law, you don’t get two bites of the post-conviction apple; that
is, “[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). See also State v.
Thorpe, 858 N.W.2d 880, 887 (Neb. 2015) (“A motion for postconviction relief
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cannot be used to secure review of issues which were or could have been litigated on
direct appeal, no matter how those issues may be phrased or rephrased.”); State v.
Filholm, 848 N.W.2d 571, 576 (Neb. 2014) (“When a defendant’s trial counsel is
different from his or her counsel on direct appeal, the defendant must raise on direct
appeal any issue of trial counsel’s ineffective performance which is known to the
defendant or is apparent from the record. Otherwise, the issue will be procedurally
barred.”). (Italics added.)
Note also that Nebraska has a statute of limitations for bringing postconviction
actions that is similar to federal law. It reads:
4) A one-year period of limitation shall apply to the filing of a verified
motion for postconviction relief. The one-year limitation period shall
run from the later of:
(a) The date the judgment of conviction became final by the
conclusion of a direct appeal or the expiration of the time for
filing a direct appeal;
(b) The date on which the factual predicate of the constitutional
claim or claims alleged could have been discovered through the
exercise of due diligence;
(c) The date on which an impediment created by state action, in
violation of the Constitution of the United States or the
Constitution of Nebraska or any law of this state, is removed, if
the prisoner was prevented from filing a verified motion by such
state action;
(d) The date on which a constitutional claim asserted was initially
recognized by the Supreme Court of the United States or the
Nebraska Supreme Court, if the newly recognized right has been
made applicable retroactively to cases on postconviction
collateral review; or
(e) August 27, 2011.
Neb. Rev. Stat. Ann. § 29-3001(4) (West).

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Deference 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
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
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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 Especially Deferential Strickland Standard
When a petitioner asserts an ineffective assistance of counsel claim, the
two-pronged standard of Strickland v. Washington, 466 U.S. 668 (1984), must be
applied. The standard is very hard for offenders to satisfy.

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Strickland requires that the petitioner demonstrate both that his counsel’s
performance was deficient, and that such deficient performance prejudiced the
petitioner’s defense. Id. at 687. The first prong of the Strickland test requires that the
petitioner demonstrate that his attorney failed to provide reasonably effective
assistance. Id. at 687-88. In conducting such a review, the courts “indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689.
The second prong requires the petitioner to demonstrate “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. Further, as set forth in Strickland, counsel’s
“strategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable” in a later habeas corpus action. Id.
at 690.
Additionally, the Supreme Court has emphasized that the deference due the
state courts applies with special vigor to decisions involving ineffective assistance of
counsel claims. Knowles v. Mirzayance, 556 U.S. 111 (2009). In Knowles, the
Justices stressed that under the Strickland standard, the state courts have a great deal
of “latitude” and “leeway,” which presents a “substantially higher threshold” for a
federal habeas petitioner to overcome. As stated in Knowles:
The question is not whether a federal court believes the state
court’s determination under the Strickland standard was incorrect but
whether that determination was unreasonable—a substantially higher
threshold. And, because the Strickland standard is a general standard,
a state court has even more latitude to reasonably determine that a
defendant has not satisfied that standard.
Id. at 123 (internal quotation marks and citations omitted).

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The Supreme Court has recently emphasized that Strickland applies equally to
appellate counsel, and that appellate counsel is entitled to the “benefit of the doubt.”
Woods v. Etherton, 136 S. Ct. 1149, 1153 (2016) (a “fairminded jurist” could have
concluded that repetition of anonymous tip in state-court cocaine-possession trial did
not establish that the uncontested facts it conveyed were submitted for their truth, in
violation of the Confrontation Clause, or that petitioner was prejudiced by its
admission into evidence, precluding federal habeas relief under Antiterrorism and
Effective Death Penalty Act (AEDPA); Petitioner could not establish that Petitioner’s
appellate counsel was ineffective, as appellate counsel was entitled to the “benefit of
the doubt”).
Petitioner’s Claims That Are Procedurally Defaulted
Ground A of Smith’s first habeas claim has been procedurally defaulted
because it was not raised to the Nebraska Supreme Court in either his direct appeal
or his postconviction appeal. Although the underlying substance of this claim was
presented to the Nebraska Supreme Court in Smith’s postconviction appeal, it was
addressed as an ineffective assistance of appellate counsel claim and not a separate
due process claim. Smith, 883 N.W.2d at 306-310. Because Smith’s due process
claim could have been previously raised in the state appellate courts, Smith cannot
now raise that claim in a successive state postconviction motion, and would further
be barred by Nebraska’s state of limitations on postconviction motions. Thus, Claim
One, Ground A, has been procedurally defaulted.
Although Ground C of Claim One was raised in Smith’s direct appeal to the
Nebraska Court of Appeals, the claim is procedurally defaulted because it was not
raised in his petition for further review to the Nebraska Supreme Court. (See filing
no. 9-12 at CM/ECF p.2.) As a result, Smith has not invoked one complete round of
Nebraska’s established appellate review process as it relates to that claim. The claim
is now procedurally defaulted, not unexhausted, because the Nebraska courts would
not entertain a successive postconviction motion based on this claim since it was
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raised on his direct appeal to the Court of Appeals. Furthermore, any successive
postconviction motion filed by Smith would also be barred by Nebraska’s statute of
limitations. Thus, this claim has been procedurally defaulted.
Smith’s Claim Two has been procedurally defaulted because it was not raised
in his postconviction appeal to the Nebraska Supreme Court. See Smith, 883 N.W.2d
at 306 (“Smith assigns, condensed and restated, (1) that the district court erred in
denying his motion for postconviction relief without an evidentiary hearing despite
Smith’s claims that his appellate counsel was ineffective; (2) that the district court
erred in hearing his claims of ineffective assistance of appellate counsel at the hearing
on his motion for new counsel, prior to his motion for postconviction relief; and (3)
that plain error permeates the record.”). Because this claim was available to Smith in
his state postconviction proceeding, Smith cannot now raise the claim in a successive
state postconviction motion, and it would further be barred by Nebraska’s statute of
limitations on postconviction motions. Thus, Claim Two has been procedurally
defaulted.
Finally, Petitioner has failed to show cause and prejudice to excuse the
defaults. Nor has he made any attempt to show that he was actually (factually)
innocent.
Ground B of Petitioner’s Claim One Has No Substantive Merit
Smith asserts that his trial counsel was ineffective. On appeal from the postconviction motion, the Nebraska Supreme Court examined the effectiveness of trial
counsel through the lens of the effectiveness of appellate counsel for failing to allege
on direct appeal that which is claimed to constitute a violation of the right to effective
trial counsel. Applying the Strickland test, the Nebraska Supreme Court carefully
examined Petitioner’s claims and found them wanting. Smith, 883 N.W.2d at
307-309. Applying the “doubly deferential” standard of review for such cases,
Smith’s ineffective assistance of trial counsel claim has no merit.
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No Certificate of Appealability
Finally, 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); 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b)(1). The standards
for certificates (1) where the district court reaches the merits or (2) where the district
court rules on procedural grounds are set forth in Slack v. McDaniel, 529 U.S. 473,
484-485 (2000). I have applied the appropriate standard and determined that
Petitioner is not entitled to a certificate of appealability.
IT IS ORDERED the motion for writ of habeas corpus under 28 U.S.C. § 2254
(filing no. 1) is denied and dismissed with prejudice. No certificate of appealability
has been or will be issued. A separate judgement will be entered.
DATED this 31st day of July, 2017.
BY THE COURT:
s/Richard G. Kopf
Senior United States District Judge

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