Thirtle v. Dahm

Filing 21

MEMORANDUM AND ORDER - Petitioner Kelly A. Thirtle's Amended Petition for Writ of Habeas Corpus (Filing Nos. 1 and 7 ) is dismissed with prejudice. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Judge Laurie Smith Camp. (Copy mailed/e-mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KELLY A. THIRTLE,
Petitioner,
v.
JOHN DAHM,
Respondent.

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CASE NO. 8:11CV23

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner Kelly A. Thirtle’s (“Thirtle”) Amended
Petition for Writ of Habeas Corpus (“Petition”). (Filing Nos. 1 and 7.) Respondent has filed
an Answer (Filing No. 10), a Brief in Support of the Answer (Filing No. 11), relevant State
Court Records (Filing No. 9) and a Reply Brief (Filing No. 16). Thirtle has filed a Brief in
response to the Answer. (Filing No. 15.) This matter is therefore deemed fully submitted.
Liberally construing the allegations of Thirtle’s Petition, she argues that she is
entitled to a writ of habeas corpus because:
Claim One:

Petitioner was denied due process in violation of the
Fourteenth Amendment because her conviction was obtained
through the use of false testimony, coerced testimony and
prosecutorial misconduct.

Claim Two:

Petitioner was denied the effective assistance of counsel in
violation of the Sixth and Fourteenth Amendments because
her trial counsel lacked experience and failed to investigate,
use expert witnesses and prepare an adequate defense.

Claim Three:

Petitioner was denied due process in violation of the
Fourteenth Amendment because opposing counsel failed to
disclose that a social worker was involved with the alleged
victims and Petitioner was unable to properly cross-examine
the witnesses.

(Filing Nos. 1 and 7, together, the “Habeas Claims.”)

BACKGROUND
I.

Thirtle’s Conviction and Direct Appeal
On December 27, 1994, after a bench trial, a Douglas County, Nebraska, District

Court judge found Thirtle guilty of two counts of first degree sexual assault on a child.
(Filing No. 9-8, Attach. 8 at CM/ECF pp. 13-15; Filing No. 9-10, Attach. 10 at CM/ECF p.
2; Filing No. 9-12, Attach. 12, at CM/ECF pp. 43-45.) On March 28, 1995, the Douglas
County District Court judge sentenced Thirtle to consecutive terms of imprisonment of
fifteen to twenty years for each count. (Filing No. 9-12, Attach. 12 at CM/ECF pp. 49-50.)
Thirtle filed a timely direct appeal arguing that (1) the evidence was insufficient to support
her conviction and (2) the Douglas County District Court abused his discretion by imposing
consecutive prison sentences of fifteen to twenty years. (Filing No. 9-8, Attach. 8 at
CM/ECF p. 1; Filing No. 9-3, Attach. 3 at CM/ECF p. 5.) The Nebraska Court of Appeals
affirmed Thirtle’s convictions and sentences on November 22, 1995. (Filing No. 9-1,
Attach. 1, at CM/ECF p. 2.) Thirtle filed a petition for further review with the Nebraska
Supreme Court. (Id.) The Nebraska Supreme Court overruled Thirtle’s petition for further
review on January 4, 1996. (Id.)
II.

Thirtle’s Post Conviction Motion and Appeal
On October 26, 2006, more than 10 years after her conviction, Thirtle filed a verified

motion to vacate and set aside judgment of conviction and sentence (“Post-Conviction
Motion”) in the Douglas County, Nebraska, District Court. (Filing No. 9-9, Attach. 9 at
CM/ECF pp. 13-15.) Liberally construed, the Post-Conviction Motion set forth Claim One
of Thirtle’s Habeas Claims. (Id.) However, the Post-Conviction Motion did not raise

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Thirtle’s other Habeas Claims. (Id.) On February 4, 2009, the Douglas County District
Court issued an order granting Thirtle’s Post-Conviction Motion. (Id. at CM/ECF pp. 2345.) In response, the State of Nebraska filed a motion to alter or amend judgment, arguing
that the Douglas County District Court’s February 4, 2009, order did not contain findings
of fact and conclusions of law as required by the Nebraska Postconviction Act. (Id. at
CM/ECF pp. 28-29.) The Douglas County District Court sustained the motion, vacated its
February 4, 2009, postconviction order and denied Thirtle’s Post-Conviction Motion. (Id.
at CM/ECF pp. 32-43.) Thereafter, Thirtle filed a timely appeal of the denial of her Post
Conviction Motion. (Id. at CM/ECF p. 1.)
On February 11, 2010, the Nebraska Court of Appeals summarily affirmed the
denial of Thirtle’s Post Conviction Motion. (Filing No. 9-2, Attach. 2, at CM/ECF p. 2.)
Thirtle did not file a petition for further review with the Nebraska Supreme Court. (Id.) The
mandate was issued on March 16, 2010. (Id.)
ANALYSIS
I.

Standards for Procedural Default
Respondent argues, among other things, that Thirtle’s Habeas Claims are

procedurally defaulted.1 (Filing No. 11 at CM/ECF p. 13.) As set forth in 28 U.S.C. §
2254(b)(1):
(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–

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Respondent also argues that Thirtle’s Habeas Claims are barred by the statute of
limitations set forth in 28 U.S.C. § 2244(d). (Filing No. 11 at CM/ECF pp. 11-13.) The
court need not address this argument because the court finds that Thirtle’s Habeas Claims
are procedurally defaulted.
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(A)

the applicant has exhausted the remedies available in the courts of the
State; or

(B)

(i)
(ii)

there is an absence of available State corrective process; or
circumstances exist that render such process ineffective to protect the
rights of the applicant.

28 U.S.C. § 2254(b)(1)
The United States Supreme Court has explained the habeas exhaustion
requirement as follows:
Because the exhaustion doctrine is designed to give the state courts a full
and fair opportunity to resolve federal constitutional claims before those
claims are presented to the federal courts . . . state prisoners must give the
state courts one full opportunity to resolve any constitutional issues 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,
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518 U.S. 152, 162 (1996)). Stated another way, if a claim has not been presented to the
Nebraska appellate courts and is now barred from presentation, the claim is procedurally
defaulted, not unexhausted. Akins, 410 F.3d at 456 n. 1.
Under Nebraska law, “[a]n appellate court will not entertain a successive motion for
postconviction relief unless the motion affirmatively shows on its face that the basis relied
upon for relief was not available at the time the movant filed the prior motion.” State v.
Ortiz, 670 N.W.2d 788, 792 (Neb. 2003). Additionally, “[a] motion for postconviction relief
cannot be used to secure review of issues which were or could have been litigated on
direct appeal.” Hall v. State, 646 N.W.2d 572, 579 (Neb. 2002). 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).

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Even where a claim has been

procedurally defaulted, a petitioner is entitled to an opportunity to demonstrate cause and
prejudice to excuse the default. Akins, 410 F.3d at 456 n.1.
II.

Thirtle’s Habeas Claims
A.

Claim One

In Claim One, Thirtle alleges she was denied due process in violation of the
Fourteenth Amendment because her conviction was obtained through the use of false
testimony, coerced testimony and prosecutorial misconduct. (Filing Nos. 1 and 7.) Thirtle
arguably raised Claim One in her Post-Conviction Motion and in her post-conviction appeal.
(Filing No. 9-9, Attach. 9 at CM/ECF pp. 13-15; Filing No. 9-6 at CM/ECF pp. 7, 21-24, 2930.) However, Thirtle did not present Claim One to the Nebraska Supreme Court in a
petition for further review. (Filing No. 9-2, Attach. 2 at CM/ECF p. 2.) As discussed above,
Thirtle is required to fairly present the substance of her federal constitutional claims to the
state courts before she may seek federal habeas relief. See O’Sullivan, 526 U.S. at 844.
Moreover, 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.” Ortiz,
670 N.W.2d at 792. Because Thirtle failed to fairly present Claim One to the Nebraska
state courts, and because she cannot file a second motion for post-conviction relief under
Nebraska law, Claim One is procedurally defaulted.
B.

Claims Two and Three

Unlike Claim One, Thirtle did not raise Claim Two or Claim Three in her PostConviction Motion or in her post-conviction appeal. (See Filing No. 9-9, Attach. 9 at

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CM/ECF pp. 13-15; Filing No. 9-6, Attach. 6 at CM/ECF pp. 7, 21-31.) Again, Thirtle is
required to fairly present the substance of her federal constitutional claims to the state
courts before she may seek federal habeas relief. See O’Sullivan, 526 U.S. at 844. And,
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.” Ortiz, 670
N.W.2d at 792. Because Thirtle failed to fairly present Claim Two and Claim Three to the
Nebraska state courts, and because she cannot file a second motion for post-conviction
relief under Nebraska law, Claim Two and Claim Three are also procedurally defaulted.
III.

Cause and Prejudice
To excuse a procedural default, a petitioner must demonstrate either cause for the

default and actual prejudice as a result of the alleged violation of federal law, or, in rare
cases, that failure to consider the claim will result in a fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991). Although there is no precise definition
of what constitutes cause and prejudice, “the existence of cause for a procedural default
must ordinarily turn on whether the prisoner can show that some objective factor external
to the defense impeded counsel’s efforts to comply with the State’s procedural rule.”
Strickler v. Greene, 527 U.S. 263, 283 n.24 (1999); see also Bell v. Attorney Gen. of Iowa,
474 F.3d 558, 561 (8th Cir. 2007) (“A cause is sufficient to excuse procedural default when
it is external to the petitioner, and not attributable to the petitioner.”).
The court has carefully reviewed Thirtle’s submissions in this matter. Thirtle makes
no attempt to show cause for failing to present her Habeas Claims to the Nebraska state

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courts. Instead, she argues that she is actually innocent and asks the court to excuse her
procedural default under the fundamental-miscarriage-of-justice exception. (Filing No. 16
at CM/ECF pp. 6-8.) In order for Thirtle to invoke the fundamental-miscarriage-of-justice
exception, she must present new evidence that affirmatively demonstrates that she is
innocent of the crime for which she was convicted. Abdi v. Hatch, 450 F.3d 334, 338 (8th
Cir. 2006). See Cassell v. Norris, 103 F.3d 61, 62 (8th Cir.1996) (“For actual innocence
to lift the procedural bar, [a petitioner] must show that it is more likely than not that, in light
of new evidence, no reasonable juror would have convicted [her].”), cert. denied, 522 U.S.
857 (1997).
Here, Thirtle argues that she is actually innocent because both of her victims,
through affidavits, recanted their original testimony that she sexually assaulted them.
(Filing No. 16 at CM/ECF pp. 6-8.) Each victim allegedly recanted their testimony because
it was influenced and “coerced by a state social worker.” (Id.) However, “recantations of
testimony generally are viewed with suspicion.” Wadlington v. United States, 428 F.3d
779, 784 (8th Cir. 2005). Thus, it may be reasonable for a juror to believe the victims’
testimony at trial, rather than their recantations. This is especially true where, as here, the
victims’ recantations occurred long after their trial testimony and after each had developed
a criminal history. (See Filing No. 9-9, Attach. 9 at CM/ECF pp. 38-40.) Further, the
Douglas County District Court determined that the victims’ recantations “lacked sufficient
credibility and details” to prove that a state social worker coerced their original trial
testimony. (Id. at CM/ECF p. 40.) This court presumes that the Douglas County District
Court’s credibility determination is correct. See 28 U.S.C. § 2254(e)(1); see generally

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Chadwell v. Koch Refining Co., L.P., 251 F.3d 727, 734 (8th Cir. 2001) (noting that a trial
court is closer to the evidence and better equipped to make credibility determinations).
Accordingly, Thirtle has not shown that it is more likely than not that, in light of the
recantations, no reasonable juror would have convicted her. Because Thirtle has not
demonstrated cause and prejudice to excuse the procedural default of her Habeas Claims,
this matter is dismissed in it entirety.
IT IS THEREFORE ORDERED that:
1.

Petitioner Kelly A. Thirtle’s Amended Petition for Writ of Habeas Corpus
(Filing Nos. 1 and 7) is dismissed with prejudice; and

2.

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

DATED this 9th day of November, 2011.
BY THE COURT:

s/Laurie Smith Camp
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
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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.
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