Lathrop v. Britton

Filing 11

MEMORANDUM AND ORDER - Petitioner Daniel J. Lathrop's Petition for Writ of Habeas Corpus (filing no. 1 ) is dismissed with prejudice. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Chief Judge Joseph F. Bataillon. (Copy mailed/e-mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DANIEL J. LATHROP,
Petitioner,
v.
ATTORNEY GENERAL OF
NEBRASKA, and FRED BRITTEN,
Respondents.

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8:11CV32

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner Daniel J. Lathrop’s (“Lathrop”)
Petition for Writ of Habeas Corpus (“Petition”). (Filing No. 1.) Respondent filed an
Answer (filing no. 7), Brief on the merits of the Petition (filing no. 8), Reply Brief
(filing no. 10), and relevant State Court Records (filing no. 6). Lathrop filed a Brief
in response to the Answer. (Filing No. 9.) This matter is therefore deemed fully
submitted.
Liberally construing the allegations of Lathrop’s Petition, he makes the
following two claims:
Claim One:

Lathrop was denied due process of law in violation of the
Sixth and Fourteenth Amendments because the trial court
(1) abused its discretion in prompting the State about
discrepancies between the factual basis for the plea and the
filed charges and then allowing the State to correct the
discrepancies; and (2) abused its discretion by ignoring the
agreed-upon sentencing range of two-four years and
sentencing Petitioner to 40-50 years (“Claim One”).

Claim Two:

Lathrop was denied the effective assistance of counsel in

violation of the Sixth Amendment because his trial counsel
(1) induced Petitioner to enter into a plea agreement based
on the guarantee that he would be sentenced to two-four
years in prison but Petitioner received a sentence of 40-50
years; and (2) failed to object or otherwise ask the court to
follow the agreed-upon recommended sentencing range
(“Claim Two”).
(Filing No. 1 (together, the “Habeas Claims”).)
BACKGROUND
I.

Lathrop’s Conviction and Direct Appeal

On July 27, 2009, pursuant to a plea agreement, Lathrop pled no contest to one
count of sexual assault on a child. (Filing No. 6-3, Attach. 3, at CM/ECF pp. 12-29.)
The Hall County, Nebraska District Court thereafter sentenced Lathrop to serve a
prison term of 40-50 years on that conviction. (Id. at CM/ECF pp. 30-43.) Lathrop
filed a timely direct appeal in which he argued only that his sentence was excessive.
(Filing No. 6-1, Attach. 1, at CM/ECF pp. 25-33.) Lathrop did not raise either of his
Habeas Claim on direct appeal. (Id.) The Nebraska Court of Appeals summarily
affirmed Lathrop’s conviction and sentence on December 28, 2009. (Filing No. 6-4,
Attach. 4, at CM/ECF p. 2.) Lathrop filed a petition for further review with the
Nebraska Supreme Court, which denied relief on January 27, 2010. (Id.)
II.

Lathrop’s Post Conviction Motion and Appeal

On May 24, 2010, Lathrop filed a verified motion for postconviction relief in
the Hall County District Court (the “Post Conviction Motion”). (Filing No. 6-2,
Attach. 2, at CM/ECF pp. 14-20.) Liberally construed, the Post Conviction Motion
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asserted both of Lathrop’s Habeas Claims. (Id.) Without holding an evidentiary
hearing, the Hall County District Court issued a detailed opinion denying relief on
both of Lathrop’s Habeas Claims. (Id. at CM/ECF pp. 22-28.) Details of the Hall
County District Court’s decision are set forth where necessary below. Lathrop filed
a timely appeal of the denial of post conviction relief. On appeal, Lathrop assigned
several errors, encompassing both Habeas Claims. (Id. at CM/ECF pp. 33-43.) On
November 1, 2010, the Nebraska Court of Appeals summarily affirmed the Hall
County District Court’s denial of post conviction relief. (Filing No. 6-4, Attach. 4,
at CM/ECF p. 5.) Lathrop filed a petition for further review with the Nebraska
Supreme Court, which also denied relief to Lathrop on December 8, 2010, without
issuing an opinion. (Id.) On February 2, 2011, Lathrop timely filed his Petition in
this court. (Filing No. 1.)
ANALYSIS
I.

Standard of Review

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
facts and the law. See 28 U.S.C. § 2254(d). With regard to the deference owed to
factual findings of a state court’s decision, a federal court is bound by those findings
unless the state court made 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).
Further, section 2254(d)(1) states that a federal court may not grant a writ of
habeas corpus unless the state court’s decision “was contrary to, or involved an
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unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). As explained by the
Supreme Court in Williams v. Taylor, 529 U.S. 362 (2000), a state court acts contrary
to clearly established federal law if it applies a legal rule that contradicts the Supreme
Court’s prior holdings or if it reaches a different result from one of that Court’s cases
despite confronting indistinguishable facts. Id. at 399. 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).
As the Supreme Court recently noted, “[i]f this standard is difficult to meet,
that is because it was meant to be.” Harrington v. Richter, ___ U.S. ___, 131 S. Ct.
770, 786 (2011). The deference due state court decisions “preserves authority to
issue the writ in cases where there is no possibility fairminded jurists could disagree
that the state court’s decision conflicts with [Supreme Court] precedents.” Id. In
short, “[i]t bears repeating that even a strong case for relief does not mean the state
court’s contrary conclusion was unreasonable.” Id. 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, 460-61 (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 recently 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
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lacked merit–plainly suffices as an adjudication on the merits under
AEDPA.
Worthington v. Roper, 631 F.3d 487, 496-97 (8th Cir. 2011) (quotations and citations
omitted). The court also determined that a federal district court reviewing a habeas
claim under AEDPA must “look through” the state court opinions and “apply AEDPA
review to the ‘last reasoned decision’ of the state courts.” Id. at 497. A district court
should do “so regardless of whether the affirmance was reasoned as to some issues
or was a summary denial of all claims.” Id. The Supreme Court agrees, recently
stating:
There is no text in the statute requiring a statement of reasons. The
statute refers only to a “decision,” which resulted from an
“adjudication.” As every Court of Appeals to consider the issue has
recognized, determining whether a state court’s decision resulted from
an unreasonable legal or factual conclusion does not require that there
be an opinion from the state court explaining the state court’s reasoning.
Harrington, 131 S. Ct. at 784.
II.

The Strickland Standard

The Hall County District Court adjudicated both of Lathrop’s Habeas Claims
on the merits. Lathrop’s Claim Two asserts that he received the ineffective assistance
of counsel. Such claims are reviewed under the two-pronged standard of Strickland
v. Washington, 466 U.S. 668, 694 (1984). 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; see also Bryson v. United
States, 268 F.3d 560 (8th Cir. 2001); Williamson v. Jones, 936 F.2d 1000, 1004 (8th
Cir. 1991).
The first prong of the Strickland test requires that the petitioner demonstrate
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that his attorney failed to provide reasonably effective assistance. Strickland, 466
U.S. 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; see also Hubbeling v. United
States, 288 F.3d 363, 365 (8th Cir. 2002). A court need not address the
reasonableness of the attorney’s skills and diligence if the movant cannot prove
prejudice under the second prong of this test. United States v. Apfel, 97 F.3d 1074,
1076 (8th Cir. 1996) (quoting Cheek v. United States, 858 F.2d 1330, 1336 (8th Cir.
1988)). Further, as set forth in Strickland, counsel’s “strategic choices made after
thorough investigation are virtually unchallengeable” in a later habeas corpus action.
466 U.S. at 689.
Additionally, the Supreme Court has very recently emphasized that the
deference due the state courts applies with vigor to decisions involving ineffective
assistance of counsel claims. Knowles v. Mirzayance, 129 S. Ct. 1411, 1418-20
(2009) (reversing the Ninth Circuit Court of Appeals and holding that the decision
of the California Court of Appeals, that the defendant was not deprived of effective
assistance of counsel when his attorney recommended withdrawing his insanity
defense during second phase of trial, was not contrary to or an unreasonable
application of clearly established federal law; also concluding, among other things,
that there was no reasonable probability that, but for counsel’s alleged unprofessional
error, the result of the proceeding would have been different).
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
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determination” under the Strickland standard “was incorrect but whether
that determination was unreasonable-a substantially higher threshold.”
Schriro, supra, at 473, 127 S. Ct. 1933. 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.
See Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158
L.Ed.2d 938 (2004) (“[E]valuating whether a rule application was
unreasonable requires considering the rule’s specificity. The more
general the rule, the more leeway courts have in reaching outcomes in
case-by-case determinations”).
Id. at 1420.
In another recent case, the Supreme Court further stressed the importance of
deference to state court opinions in cases where the petitioner accepted a plea:
There are certain differences between inadequate assistance of counsel
claims in cases where there was a full trial on the merits and those, like
this one, where a plea was entered even before the prosecution decided
upon all of the charges. A trial provides the full written record and
factual background that serve to limit and clarify some of the choices
counsel made. Still, hindsight cannot suffice for relief when counsel's
choices were reasonable and legitimate based on predictions of how the
trial would proceed. . . . Hindsight and second guesses are also
inappropriate, and often more so, where a plea has been entered without
a full trial . . . [t]he added uncertainty that results when there is no
extended, formal record and no actual history to show how the charges
have played out at trial works against the party alleging inadequate
assistance. Counsel, too, faced that uncertainty. There is a most
substantial burden on the claimant to show ineffective assistance. The
plea process brings to the criminal justice system a stability and a
certainty that must not be undermined by the prospect of collateral
challenges in cases not only where witnesses and evidence have
disappeared, but also in cases where witnesses and evidence were not
presented in the first place.

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Premo v. Moore, ___ U.S. ___, 131 S. Ct. 733, 745-46 (2011) (citations omitted).
III.

Lathrop’s Habeas Claims
A.

State Court Findings

For his Claim One, Lathrop argues that he is entitled to relief because the trial
judge abused his discretion in prompting, and then allowing, the prosecution to
correct a typographical error and for failing to follow the prosecution’s sentencing
recommendation. (Filing No. 1.) The Hall County District Court rejected both parts
of Claim One. As to the typographical error argument, that court determined:
The State did not inform the Court of the age of the victim and the
Court inquired as to that age and the State informed the Court that
during the year 2007 the victim was under 16 years of age. Defendant’s
counsel informed the Court that the State’s statement had an error and
that the victim was not the stepdaughter but was the adopted daughter
of the Defendant. The Court inquired of the State’s attorney as to the
age of the victim on the date of the criminal act as alleged in Count II
and was informed by the State’s attorney that there was a typographical
error in the Information and he made Motion to Amend the Information
to correct the year of the offense from 2008 to 2007. Defendant’s
counsel stated he didn’t have any objection to the amendment and the
Information was amended.
After the Information was amended the Court inquired of
Defendant’s counsel whether the amendment from the year 2008 to 2007
changed any of the Defendant’s position concerning his pleading no
contest to the charge and inquired of the Defendant whether that
amendment changed anything in his position concerning his wanting the
Court to accept his no contest plea to the charge. Both Defendant and
Defendant’s counsel said the amendment did nothing to change the
Defendant’s position of requesting the Court to accept the no contest
plea to Count II.
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(Filing No. 6-2, Attach. 2, at CM/ECF p. 24.) As to part two of Claim One, that the
Hall County District Court disregarded the sentencing recommendation made as part
of the plea, that court found:

Once more, the Court inquired as to what the plea agreement was
and it was again stated by counsel and confirmed by the Defendant that
the plea agreement between the Defendant and the State was that the
Defendant would plead no contest to Count II, the Class II felony and in
exchange the Defendant would receive from the State a dismissal of
Count I, a Class IB felony and at the time of the Defendant’s sentence
on Count II the State would make a recommendation to the Court of a
sentence of two to four years incarceration.
The Defendant answered an inquiry from the Court that that was
the only agreement or promise from the State or anyone else made to
him as an inducement for him to enter his plea of no contest to Count II.
The Court informed the Defendant that the Court was not a party
to the plea agreement and that the Court did not have to accept the plea
agreement or any of its terms at any time and the Defendant
acknowledged that he understood that. The Court gave the opportunity
to the Defendant to withdraw his no contest plea and the Defendant
responded that he wished the Court to accept his no contest plea and the
Court accepted the plea and found the Defendant guilty.
(Id. at CM/ECF pp. 24-25.) In short, the Hall County District Court rejected Claim
One in its entirety, finding that the issue should have been litigated on direct appeal.
That court further found that, even though Lathrop failed to litigate Claim One on
direct appeal, it lacked merit because:
In order to complete the plea agreement that the Defendant wanted the
Defendant had to plead guilty or no contest to the Class II felony. The
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Defendant, when the scrivener’s error was discovered, had the
opportunity to withdraw his plea the Defendant chose not to and still
wished the Court to accept the plea. Further, the Defendant’s claim now
that his plea was involuntary again belies the truth of the record in open
court.
(Id. at CME/CF p. 26.)
Regarding Lathrop’s Claim Two, that his counsel was ineffective, the Hall
County District court determined:
As to his claim of ineffective assistance of counsel the Motion for
Postconviction Relief is phrased in the fact that Defendant’s counsel
told him that based on counsel’s experience with the Court that the
Defendant could rely on the sentencing range of two to four years which
would be recommended by the State. Defendant goes on in his pleading
to state that his attorney told him he “believed” the Court would follow
this range and recommended that he consider pleading.
The Defendant does not state that his attorney guaranteed or
promised him that the Court would follow the two to four year sentence
recommendation. He tries to artfully go around this face [sic] by stating
“MY ATTORNEY DID NOT TELL ME THIS WAS NOT A
GUARANTEE OR PROMISE . . .” The actual court record has been
reviewed and prior to accepting the Defendant’s plea the Court informed
the Defendant that the Court was not bound to accept any terms of the
plea agreement at any time and the Defendant acknowledged that he
understood that.
On the Defendant’s own pleading he does not state that his
attorney told him the Court would follow the sentencing
recommendation and the Bill of Exceptions clearly states the Court
informed the Defendant that it was not bound to follow any plea
agreement.
(Id. at CM/ECF pp. 26-27.) The Hall County District Court summarized its findings
on both Habeas Claims as follows:
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What this Motion for Postconviction Relief is about is that this
Defendant struck a plea agreement with the State of Nebraska in which
this Defendant received the benefit of a dismissal of a Class IB felony
charge and the sentence recommendation from the State of Nebraska.
This Defendant was informed, and acknowledged, that the Court was not
a party to the plea agreement and did not have to accept the plea
agreement or any of its terms at any time. There is nothing contained in
the documents reviewed on this case alleged to have occurred which the
Defendant did not bargain for. The Court did not accept the sentence
recommendation which was the Court’s prerogative. Excessive sentence
is not a proper subject for postconviction relief.
(Id. at CM/ECF p. 27.) The Nebraska Court of Appeals affirmed the Hall County
District Court’s denial of relief on Lathrop’s Habeas Claims without issuing an
opinion. (Filing No. 6-4, Attach. 4, at CM/ECF p. 5.) The Nebraska Supreme Court
also denied relief to Lathrop in rejecting his petition for further review. (Id.)
B.

Deference

Respondent argues that the foregoing findings of fact and conclusions of law
regarding Lathrop’s Habeas Claims are entitled to deference under the statutory
standard of review that applies to factual and legal conclusions reached by the state
courts. Indeed, as set forth above, the court must grant substantial deference to the
Nebraska state court decisions. The Hall County District Court reviewed all of the
evidence and determined, based on Strickland and other federal and state law, that the
trial court did not abuse its discretion and that Lathrop’s trial counsel’s performance
was not deficient. Summarized and condensed, that court determined that it warned
Lathrop that it was not bound to accept the recommended sentence and that Lathrop
clearly understood that fact and chose to proceed with his no contest plea, that
Lathrop received everything he bargained for, and that his counsel did not guarantee
that Lathrop would receive the recommended sentence. (Filing No. 6-2, Attach. 2,
at CM/ECF pp. 22-28.)

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The court has carefully reviewed the record in this matter and finds that the
Nebraska state court decisions are not “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). Lathrop has not submitted any evidence, let alone clear and convincing
evidence, that the Hall County District Court, or any Nebraska state court, was
incorrect in any of its factual determinations. 28 U.S.C. § 2254(e)(1). The grant of
a writ of habeas corpus is not warranted here because the Nebraska state courts
correctly applied Strickland and other federal law. In light of these findings,
Lathrop’s Petition is dismissed.
IT IS THEREFORE ORDERED that:
1.
Petitioner Daniel J. Lathrop’s Petition for Writ of Habeas Corpus (filing
no. 1) is dismissed with prejudice.
2.
A separate judgment will be entered in accordance with this
Memorandum and Order.
DATED this 27th day of June, 2011.
BY THE COURT:
s/ Joseph F. Bataillon
Chief United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
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