Morgan v. Houston

Filing 22

MEMORANDUM AND ORDER - Petitioner Johnny Fred Morgan Jr.'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 Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHNNY FRED MORGAN JR.,
Petitioner,
v.
ROBERT HOUSTON,
Respondent.

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8:11CV232

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner Johnny Fred Morgan Jr.’s
(“Morgan”) Petition for Writ of Habeas Corpus (“Petition”).

(Filing No. 1.)

Respondent filed an Answer (filing no. 17), Brief on the merits of the Petition (filing
no. 18), Reply Brief (filing no. 21), and relevant State Court Records (filing no. 16).
Morgan filed a response to Respondent’s Answer and Brief. (Filing Nos. 19 and 20.)
This matter is therefore deemed fully submitted.
Liberally construing the allegations of Morgan’s Petition, he asserts the
following claims:
Claim One:

Petitioner was denied his right to confront witnesses in
violation of the Sixth Amendment because the victim was
allowed to testify from behind a “large stuffed animal”
(“Claim One”).

Claim Two:

Petitioner was denied due process of law in violation of the
Fourteenth Amendment because (1) the State had no
physical or medical evidence to support the victim’s
testimony; (2) the State’s witnesses all gave conflicting
testimony; (3) the victim was impeached with evidence that
she was lying; (4) the victim’s sister was allowed to sit in
the courtroom in violation of the sequestration order and

could not be called as a witness; (5) the victim was allowed
to testify after the State admitted she was lying; (6) the trial
court did not hold an evidentiary hearing after it was
informed the victim was lying; (7) the trial court permitted
the victim to testify from behind a “large stuffed animal”
(“Claim Two”).
Claim Three:

Petitioner was denied the effective assistance of counsel in
violation of the Sixth Amendment because his trial counsel
did not (1) ask for an evidentiary hearing; (2) call witnesses
proffered by Petitioner; (3) object to the victim testifying
from behind a “large stuffed animal”; (4) ask for a mistrial
after it was apparent that the victim was lying (“Claim
Three”).

(Filing No. 1, together, the “Habeas Claims.”)
BACKGROUND
I.

Morgan’s Conviction and Direct Appeal
On December 13, 2007, a jury found Morgan guilty of one count of first degree

sexual assault. (Filing No. 16-18, Attach. 18, at CM/ECF pp. 45, 49.) The Platte
County, Nebraska District Court thereafter sentenced Morgan to serve a prison term
of 12-15 years on that conviction. (Id. at CM/ECF pp. 54-56.) Morgan filed a timely
direct appeal, in which he raised, among other things, Claim Three, Part 2. (Filing No.
16-10, Attach. 10, at CM/ECF pp. 1-34.)

Morgan’s direct appeal counsel was

different from his trial counsel. (Id. at CM/ECF p. 1; Filing No. 16-18, Attach. 18, at
CM/ECF p. 54.) The Nebraska Court of Appeals affirmed the conviction and sentence
on February 10, 2009, issuing a lengthy memorandum opinion. (Filing No. 16-1,
Attach. 1, at CM/ECF pp. 1-10.) Morgan filed a petition for further review with the
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Nebraska Supreme Court, which denied relief to Morgan on April 15, 2009. (Filing
No. 16-7, Attach. 7, at CM/ECF p. 2.)
II.

Morgan’s Post Conviction Motion and Appeal
On July 6, 2009, Morgan filed a verified motion for postconviction relief in the

Platte County District Court (the “Post Conviction Motion”). (Filing No. 16-19,
Attach. 19, at CM/ECF pp. 21-48.) Liberally construed, the Post Conviction Motion
set forth all three Habeas Claims. (Id.) The Platte County District Court declined to
hold an evidentiary hearing and issued an order denying relief on all claims asserted
in the Post Conviction Motion. (Id. at CM/ECF pp. 75-79.) Morgan filed a timely
appeal of the denial of post conviction relief. On appeal, Morgan assigned several
errors, encompassing at least portions of his three Habeas Claims. (Filing No. 16-13,
Attach. 13, at CM/ECF pp. 1-33.)
On September 1, 2010, the Nebraska Court of Appeals affirmed the Platte
County District Court’s denial of post conviction relief. (Filing No. 16-8, Attach. 8,
at CM/ECF p. 2.) Morgan filed a petition for further review with the Nebraska
Supreme Court, which again denied relief to Morgan on November 24, 2010. (Id.)
Details of the Nebraska state court opinions are set forth where necessary in the
court’s analysis below. On June 29, 2011, Morgan timely filed his Petition in this
court. (Filing No. 1.)
ANALYSIS
I.

Claims One through Three
A.

Standards for Procedural Default

As set forth in 28 U.S.C. § 2254(b)(1):

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(1)

An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it appears
that–
(A)

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

(B)

(I)
(ii)

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

28 U.S.C. § 2254(b)(1)
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).
In addition, “fair presentation” of a habeas claim in state court means that a
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
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federal constitutional issue in a claim before the state courts.” Carney v. Fabian, 487
F.3d 1094, 1096 (8th Cir. 2007) (quotation omitted). Thus, where a petitioner argued
in the state courts only that “the trial court misapplied . . . state statutes and case law,”
the claim is not properly raised and may be procedurally defaulted. Id.; see also
Rucker v. Norris, 563 F.3d 766, 771 (8th Cir. 2009) (finding claim was procedurally
barred where the petitioner failed to raise his federal due process claim and “cited no
federal authority” in the state courts).
Moreover, where “no state court remedy is available for the unexhausted
claim-that is, if resort to the state courts would be futile-then the exhaustion
requirement in § 2254(b) is satisfied, but the failure to exhaust ‘provides an
independent and adequate state-law ground for the conviction and sentence, and thus
prevents federal habeas corpus review of the defaulted claim, unless the petitioner can
demonstrate cause and prejudice for the default.’” Armstrong v. Iowa, 418 F.3d 924,
926 (8th Cir. 2005) (quoting Gray v. Netherland, 518 U.S. 152, 162 (1996)). Stated
another way, if a claim has not been presented to the Nebraska appellate courts and
is now barred from presentation, the claim is procedurally defaulted, not unexhausted.
Akins, 410 F.3d at 456 n. 1.
Under Nebraska law, “[a]n appellate court will not entertain a successive
motion for postconviction relief unless the motion affirmatively shows on its face that
the basis relied upon for relief was not available at the time the movant filed the prior
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
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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). 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.
B.

Morgan’s Claims One through Three

As set forth above, Morgan pursued a direct appeal and raised only one of his
Habeas Claims, Claim Three, Part 2, in that appeal. (Filing No. 16-10, Attach. 10, at
CM/ECF pp. 1-34.) Indeed, except for Claim Three, Part 2, addressed by the court
below, Morgan failed to properly raise any of his Habeas Claims in the Nebraska state
courts. As an initial matter, the court notes that Morgan raised issues similar to Claim
Two, Parts 1-4, in his direct appeal. (Id.) However, he did not raise these claims in
the context of a federal due process violation. (Id.) As set forth above, in order to
“fairly present” his habeas claims, Morgan “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, 487 F.3d at 1096 (quotation omitted); see also Rucker, 563 F.3d at
771 (finding claim was procedurally barred where the petitioner failed to raise his
federal due process claim and “cited no federal authority” in the state courts). Morgan
raised these claims only in the context of Nebraska state law, and, as such, he failed
to “fairly present” Claim Two, Parts 1-4 to the Nebraska state courts.
Liberally construed, Morgan raised Claim One, Claim Two, Parts 5-7, and
Claim Three, Parts 1, 3-4 in his Post Conviction Motion and appeal, but the Platte

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County District Court rejected them.1 In denying Morgan relief on these claims, the
Platte County District Court specifically determined that the claims could and should
have been brought on direct appeal, but were not. (Filing No. 16-19, Attach. 19, at
CM/ECF pp. 77-78.) In particular, that court found that the issues raised in the Post
Conviction Motion were “not raised on direct appeal, and [were] not, as such,
addressed by the Court of Appeals in its decision affirming Morgan’s conviction and
sentence.” (Id. at CM/ECF p. 77.) Regarding Claim One and Claim Two, Part 7, the
Platte County District Court specifically determined:
It is well established that a party cannot raise an issue in a postconviction
motion if he or she could have raised that same issue on direct
appeal. . . Here, any issues pertaining to the victim’s testimony or to her
holding a stuffed animal while testifying obviously could have been
raised on direct appeal. Because such issues were not raised on direct
appeal, they are procedurally barred in this postconviction action.
(Id. at CM/ECF p. 78, citations omitted.) The Platte County District Court made
similar findings regarding Claim Three:
Morgan’s postconviction motion also raises a claim as to his trial
counsel’s alleged ineffective assistance. But, as previously noted,
Morgan was represented by different counsel on direct appeal. 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
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The Platte County District Court did not specifically address Claim Two, Parts
5-6 and Claim Three, Parts 1 and 4 and it is unclear whether Morgan raised them in
the state courts. (Filing No. 16-19, Attach. 19, at CM/ECF pp. 75-79.) Regardless,
the Platte County District Court rejected Morgan’s Post Conviction Motion in its
entirety, finding that he should have brought his claims on direct appeal. (Id.)
Therefore, even though that court did not specifically address these claims, it
nevertheless rejected them as procedurally barred. On the other hand, if Morgan
failed to raise Claim Two, Parts 5-6 and Claim Three, Parts 1 and 4, those claims are
procedurally barred for a different reason, Morgan’s failure to raise them to the state
courts at all.
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counsel’s ineffective performance which is known to the defendant or is
apparent from the record. . . . Otherwise, the issue will be procedurally
barred. . . .While Morgan raised certain claims of trial counsel’s alleged
ineffective assistance on direct appeal, he did not raise any ineffective
assistance issues relating to the victim’s testimony or to her holding a
stuffed animal while testifying. Because these claims of trial counsel’s
alleged ineffectiveness were available to Morgan on direct appeal, they
are, as such, procedurally barred in this postconviction action.
(Id., citations omitted.)
The Nebraska Court of Appeals and the Nebraska Supreme Court affirmed the
Platte County District Court’s denial of relief. (Filing No. 16-8, Attach. 8, at CM/ECF
p. 2.) In affirming the Platte County District Court, the Nebraska Court of Appeals
specifically relied on Nebraska law stating that a “motion for postconviction relief is
procedurally barred where issues could have been raised on direct appeal. (Id.) In
light of the Nebraska state courts’ “plain statement[s]” that they were rejecting
Morgan’s federal claims on independent and adequate state procedural grounds, this
court is barred from addressing the merits of Claims One through Three (except Claim
Three, Part 2). Shaddy, 890 F.2d at 1018. Stated another way, these claims are
procedurally defaulted and the court cannot reach the merits of these claims unless
Morgan demonstrates cause and prejudice excusing the default.
C.

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

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State’s procedural rule.” Strickler v. Greene, 527 U.S. 263, 283 n. 24 (1999); see also
Bell v. Attorney Gen. of the State 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 the record in this matter. Liberally construed,
Morgan does not argue cause and prejudice to excuse his default. (Filing No. 20.)
Rather, Morgan argues that he raised his claims, the Nebraska courts chose not to
consider them, but that this court may still resolve them. (Id.) As set forth above,
Morgan is incorrect. As the court has already determined, Morgan’s Unraised Claims
are procedurally defaulted and, as such, may not be considered by this court. Because
Morgan has not shown cause and prejudice, Claims One, Two, and Three, Parts 1 and
3-4 are dismissed as procedurally defaulted.
II.

Claim Three, Part 2
A.

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
unreasonable application of, clearly established Federal law, as determined by the
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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).
Put simply, “[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 to 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 has 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.
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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. 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. Similarly, the Supreme Court has held:
There is no text in the statute requiring a statement of reasons. The
statute refers only to a “decision,” which resulted from an
“adjudication.” As every Court of Appeals to consider the issue has
recognized, determining whether a state court’s decision resulted from
an unreasonable legal or factual conclusion does not require that there be
an opinion from the state court explaining the state court’s reasoning.
Harrington, 131 S. Ct. at 784.
B.

The Strickland Standard

The Nebraska Court of Appeals adjudicated only Claim Three, Part 2 on the
merits, which relates to the ineffective assistance of Morgan’s trial counsel. Claims
of ineffective assistance of counsel 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 the petitioner to demonstrate 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.”
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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 emphasized that the deference due the
state courts applies with vigor to decisions involving ineffective assistance of counsel
claims. Knowles v. Mirzayance, 556 U.S. 111 (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 that “leeway” presents a “substantially
higher threshold” for a federal habeas petitioner to overcome. Thus:
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.”
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
12

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.
C.

Morgan’s Claim Three, Part 2
1.

State Court Findings

For his Claim Three, Part 2, Morgan argues that his trial counsel was ineffective
for failing to call a particular witness on his behalf. (Filing No. 1.) Liberally
construed, Morgan raised this claim on direct appeal, and the Nebraska Court of
Appeals considered and rejected it.
Applying Strickland and other federal and Nebraska precedent, the Nebraska
Court of Appeals determined:
Of course, without an evidentiary hearing, we do not know whether
Morgan’s trial counsel attempted to contact and/or interview the
potential witness. However, Morgan fails to explain how, if trial counsel
had contacted, interviewed, and subpoenaed this particular friend, that
that testimony would have provided reasonable doubt upon which the
jury would have returned a verdict of not guilty. In his brief, Morgan
admits that “[ilt cannot be exactly known how [this particular friend’s ]
testimony would have changed the outcome of the trial in this
matter’ . . . .” Because Morgan has failed to show that testimony from
this particular friend would have created reasonable doubt in the minds
of the jurors, his argument that his trial counsel was insufficient for
failing to contact, interview, and subpoena this particular potential
witness must fail. Accordingly, we conclude that this assignment of
error is also without merit.

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(Filing No. 16-1, Attach. 1, at CM/ECF p. 9.) The Nebraska Supreme Court also
denied relief to Morgan on Claim Three, Part 2 in rejecting his petition for further
review. (Filing No. 16-7, Attach. 7, at CM/ECF p. 2.)
2.

Deference

Respondent argues that the foregoing findings of fact and conclusions of law
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 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). Morgan
has not submitted any evidence, let alone clear and convincing evidence, that the
Platte County District Court or the Nebraska Court of Appeals were incorrect
regarding any factual determinations. 28 U.S.C. § 2254(e)(1). The grant of a writ of
habeas corpus is not warranted based on Morgan’s only non-defaulted Habeas Claim,
Claim Three, Part 2, because the Nebraska state courts correctly applied Strickland
and other Supreme Court holdings. In light of these findings, Morgan’s Claim Three,
Part 2 is also dismissed.
IT IS THEREFORE ORDERED that:
1.

Petitioner Johnny Fred Morgan Jr.’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 6 th day of February, 2012.

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BY THE COURT:
Richard G. Kopf
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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