Dyer v. Bakewell et al

Filing 25

MEMORANDUM AND ORDER - Petitioner Lewis Fitzgerald Dyer's Petition for Writ of Habeas Corpus (Filing No. 1 ) is dismissed with prejudice. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party) (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LEWIS FITZGERALD DYER,
Petitioner,
v.
DENNIS BAKEWELL, Warden, and
NEBRASKA STATE PENITENTIARY,
Respondents.

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CASE NO. 8:11CV312

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner Lewis Fitzgerald Dyer’s (“Dyer”) Petition
for Writ of Habeas Corpus (“Petition”). (Filing No. 1.) Respondents filed an Answer (Filing
No. 22), Brief on the merits of the Petition (Filing No. 19), Reply Brief (Filing No. 23), and
relevant State Court Records (Filing No. 18). Dyer filed a response to Respondents’
Answer and Brief (Filing No. 21) and a Brief in support of his Petition (Filing No. 6). This
matter is therefore deemed fully submitted.
Liberally construing the allegations of Dyer’s Petition, he asserts the following
claims:
Claim One:

Petitioner was denied due process of law in violation of
the Fourteenth Amendment because: (1) his conviction
was against the greater weight of the evidence; (2) the
trial court abused its discretion in finding Petitioner
guilty and allowing the August 20, 2009 passenger
manifest and hearsay testimony about the passenger
manifest; (3) the cumulative effect of the trial court’s
errors resulted in an unfair trial; and (4) the State used
drug courier profile testimony as substantive evidence
of Petitioner’s guilt (“Claim One”).

Claim Two:

Petitioner was denied the effective assistance of
counsel in violation of the Sixth Amendment because
his trial counsel failed to: (1) challenge the illegal

detention, search, and custodial interrogation of
Petitioner made by the NSP investigator; (2) file a
motion to suppress any evidence obtained from
Petitioner and/or his personal belongings based upon
the illegal detention, search, and custodial interrogation
initiated by NSP; (3) file a motion to suppress based on
the NSP’s failure to obtain a search warrant prior to
opening Petitioner’s suitcase; (4) object to the
admission of the passenger manifest on the basis of
foundation and best evidence; (5) object to the
testimony of the NSP investigator and the admission of
the handwritten baggage claim check on the basis of
hearsay, foundation, and/or authentication; and (6)
challenge the fact that the NSP violated Petitioner’s
Miranda rights (“Claim Two”).
Claim Three:

The trial court erred in: (1) admitting the August 20,
2009, passenger manifest for demonstrative purposes;
(2) allowing testimony based upon the contents of that
manifest in violation of Neb. Rev. Stat. §27-801(3),
§27-803(5), and §27-1002,; and (3) admitting nine
grams of marijuana, all over the relevance objection of
the defense (“Claim Three”).

(Filing No. 1.) On initial review, the court dismissed Claim Three because it raised issues
of state only and was therefore not cognizable in a federal habeas corpus action. (Filing
No. 12 at CM/ECF p. 2.) Thus, only Claims One and Two remain.
BACKGROUND
On August 28, 2009, after a bench trial, the Douglas County, Nebraska District
Court found Dyer guilty of one count of unlawful possession with intent to deliver a
controlled substance. (Filing No. 18-10 at CM/ECF pp. 15-17.) The Douglas County
District Court thereafter sentenced Dyer to serve a prison term of 8-10 years on that
conviction. (Id. at CM/ECF p. 24.) Dyer filed a timely direct appeal, in which he raised,
among other things, Claim One, Part 1 and Claim Two. (Filing No. 18-6 at CM/ECF pp. 139.) Dyer’s direct appeal counsel was different from his trial counsel. (Filing Nos. 18-10
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at CM/ECF p. 1 and 18-6 at CM/ECF p. 1.) The Nebraska Court of Appeals affirmed the
conviction and sentence on November 9, 2010, issuing a lengthy memorandum opinion.
(Filing No. 18-3 at CM/ECF pp. 1-8.) Dyer filed a petition for further review with the
Nebraska Supreme Court, which denied relief to Dyer on December 15, 2010. (Filing No.
18-4 at CM/ECF p. 1.) Details of the Nebraska state court opinions are set forth where
necessary in the court’s analysis below.
Dyer did not file any request for post-conviction relief in Nebraska state court.
Rather, he filed his Petition in this court on September 15, 2011. (Filing No. 1.)
ANALYSIS
I.

Claim One, Parts 2-4
A.

Standards for Procedural Default

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–
(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
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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
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

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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] 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, 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). 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.

Dyer’s Claim One, Parts 2-4

As set forth above, Dyer pursued a direct appeal and raised Claim One, Part 1 and
Claim Two in that appeal. (Filing No. 18-6 at CM/ECF pp. 1-39.) Thus, Dyer failed to
properly raise Claim One, Parts 2-4 in the Nebraska state courts. As an initial matter, the
court notes that Dyer arguably raised issues similar to Claim One, Part 2 in his direct

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appeal. (Id.) However, he did not raise this claim in the context of a federal due process
violation. (Id.) As set forth above, in order to “fairly present” his habeas claims, Dyer “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).
Dyer raised Claim One, Part 2 only in the context of Nebraska state law, and, as such, he
failed to “fairly present” it to the Nebraska state courts. Notably, Dyer does not argue
otherwise. (Filing No. 21.)
Liberally construed, Dyer simply did not raise Claim One, Parts 2-4 on direct appeal.
(Filing No. 18-6 at CM/ECF pp. 1-39.) Further, Dyer did not file any request for postconviction relief in the Nebraska state courts raising Claim One, Parts 2-4. Regardless,
Dyer is procedurally barred from raising Claim One, Parts 2-4 in a post conviction motion
at this stage of the proceedings because he could have raised those claims on direct
appeal, but failed to do so. Hall, 646 N.W.2d at 579. As such, Claim One, Parts 2-4 are
procedurally defaulted and the court cannot reach the merits of these claims unless Dyer
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.

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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 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, Dyer
does not argue cause and prejudice to excuse his default of Claim One, Parts 2 and 3.
(Filing No. 20.) Indeed, he does not even mention these claims in his Response, and
therefore has made no attempt to show cause and prejudice regarding Claim One, Parts
2 and 3. Regarding Claim One, Part 4, Dyer argues that there is “plain error,” and the court
should therefore excuse his procedural default. (Filing No. 21 at CM/ECF p. 2.) However,
Dyer is perhaps unclear regarding the effect of a “plain error” argument on procedurally
defaulted claims. It is true that, where a state court conducts a “plain error” review of a
defaulted claim, it may or may not “cure[] a procedural default.” Shelton v. Purkett, 563
F.3d 404, 408 (8th Cir. 2009), (noting, but not resolving, the “unfortunate” and “surprisingly
persistent” split of authority within the Eighth Circuit regarding this issue). However, it is
not a petitioner’s “plain error” argument which may cure a procedural default, but a state
court’s “plain error” review which may do so.

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Indeed, even assuming that a plain error review cures a procedural default, that
argument has no effect here because the Nebraska courts did not conduct a “plain error”
review of Claim One, Part 4. There is simply nothing for this court to review, and this court
“may not simply conduct [its] own plain error review de novo.” Id. In short, Dyer’s “plain
error” argument lacks merit. Further, he has not submitted any argument or evidence
which shows that he, or his counsel, were objectively impeded from filing Claim One, Parts
2-4 in his direct appeal. Because Dyer has not demonstrated cause and prejudice to
excuse his procedural default, Claim One, Parts 2-4 are dismissed.
II.

Claim One, Part 1 and Claim Two
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 Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1). As explained by the Supreme Court in Williams
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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
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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), (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

Liberally construed, along with Claim One, Part 1, the Nebraska Court of Appeals
adjudicated Claim Two on the merits, which relates to the ineffective assistance of Dyer’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).

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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.” 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, 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).

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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 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 123.
C.

Dyer’s Claim One, Part 1 and Claim Two
1.

State Court Findings

For his Claim One, Part 1, Dyer argues that his conviction was against the greater
weight of the evidence in violation of the due process clause of the Fourteenth
Amendment. (Filing No. 1.) Liberally construed, Dyer raised this claim on direct appeal,
and the Nebraska Court of Appeals considered and rejected it.
The Nebraska Court of Appeals detailed the substantial evidence supporting Dyer’s
conviction. (Filing No. 18-3 at CM/ECF pp. 4-6.) Summarized, the Nebraska Court of
Appeals found that, on January 19, 2009, Nebraska State Patrol officers on duty at the
Omaha, Nebraska bus station located a suspicious suitcase on a Greyhound bus going
from Las Vegas to Chicago. (Id. at CM/ECF pp. 2, 4.) No passenger claimed the suitcase
and the officers searched the suitcase, finding nine bundles of what was later determined
to be 37 pounds of marijuana. (Id. at CM/ECF p. 4.) The officers obtained the passenger
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list, also called the manifest, and found only one passenger traveling from Las Vegas to
Chicago under the name “Lawrence Taylor.” (Id. at CM/ECF pp. 4-5.) The officers
suspected the name “Lawrence Taylor” was a fictitious name, given that “Lawrence Taylor”
is the name of a well-known professional football player. (Id. at CM/ECF p. 5.) Further
raising the officers’ suspicions, the “Lawrence Taylor” ticket was a one-way ticket,
purchased with cash only 12 hours in advance, with no passenger telephone listed. (Id.)
The officers boarded the bus and located the passenger holding a ticket in the name of
“Lawrence Taylor,” later identified as Dyer. Dyer agreed to step off the bus and answer the
officers’ questions. (Id.)
Prior to questioning him further, the officers read Dyer his Miranda rights. After
doing so, Dyer agreed to speak further with the officers. (Id.) Dyer claimed that the
suitcase was not his, that his cousin bought his ticket for him, and refused to answer
additional questions. The officers placed Dyer under arrest and searched him, finding a
one-way airline ticket from Detroit to Las Vegas departing on January 16, 2009, a bus
ticket from Las Vegas to Chicago in the name of “Lawrence Taylor,” a note with amounts
for various expenses including the cost of the bus ticket, two cellular telephones with
chargers, and a small quantity of marijuana. (Id.) The officers testified at trial that 37
pounds of marijuana is consistent with distribution and that the chain of custody was
properly maintained throughout the investigation and prior to trial. (Id. at CM/ECF p. 6.)
Considering all of this evidence, the Nebraska Court of Appeals determined that:
A conviction will be affirmed, in the absence of prejudicial error, if the
properly admitted evidence, viewed and construed most favorably to the
State, is sufficient to support the conviction. State v. Robinson, 272 Neb.
582, 724 N.W.2d 35 (2006). On this record, the properly admitted evidence,
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viewed and construed most favorably to the State, is sufficient to support
Dyer’s conviction. Therefore, Dyer’s first assignment of error is without merit.
(Id., hyperlink added.)
As with Claim One, Part 1, the Nebraska Court of Appeals also denied relief to Dyer
on all parts of Claim Two. (Id. at CM/ECF pp. 6-10.)1 Applying Strickland and other
precedent, the Nebraska Court of Appeals determined:
Dyer argues that his trial counsel was ineffective in failing to file a
motion to suppress the evidence obtained from the suitcase. We disagree.
In the instant case, the record shows the [Nebraska State Patrol] officers had
probable cause to open the suitcase. [Nebraska State Patrol Officer] Eberle
testified that when he was looking through the luggage compartment of the
bus, he noticed a newer black suitcase that had no name or identification.
The bag also had an aftermarket padlock and a handwritten check-tag.
Eberle stated that when he stood the suitcase up on end he heard a large
object in the center of the suitcase make a thud that was inconsistent with
clothing.
Eberle testified that when the NSP officers monitor buses, they look
for buses coming from the southwest corner of the United States, newer
luggage, luggage that contains minimal information or fictitious names, and
luggage that contains aftermarket padlocks. Eberle testified that all of these
items are indicative of controlled substance involvement.
Eberle testified that as the passengers reboarded the bus, he asked
each of them if they owned the suitcase, and that none of them claimed the
suitcase. Eberle testified he considered the suitcase abandoned property
and took it into a back room and opened it. Eberle stated that abandoned
bags are searched for security reasons because they are often indicative of
someone trying to elude being caught transporting controlled substances or
other contraband. Given this evidence, the officers clearly had probable
cause to search the suitcase, and therefore, Dyer’s trial counsel was not
ineffective in failing to file a motion to suppress a search of the suitcase.
1

There is some question as to whether Dyer specifically raised all parts of Claim
Two in his direct appeal. The court liberally construes Claim Two and the state-court
pleadings and finds that Dyer raised all of Claim Two in the state court. However, to the
extent Dyer did not present portions of Claim Two on direct appeal, such claims are
procedurally defaulted because he could have raised those claims on direct appeal, but
failed to do so. Hall, 646 N.W.2d at 579.
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Dyer also argues that his trial counsel was ineffective in failing to
challenge the illegal search and detention of Dyer. We disagree.
Tier-two police citizen encounters, which constitute investigatory
stops, are seizures sufficient to invoke the protections of the Fourth
Amendment. State v. Hedgcock, 277 Neb. 805, 765 N.W.2d 469 (2009).
Because of its less intrusive nature, a tier-two police citizen encounter, or
investigatory stop, requires only that an officer have specific and articulable
facts sufficient to give rise to a reasonable suspicion that criminal activity is
afoot. Id. [(citing Terry v. Ohio, 392 U.S. 1, 30-31(1968))].
The record shows that the officers detained Dyer because they found
a suitcase full of marijuana in the luggage compartment under the bus. The
tag on the suitcase indicated that the owner was en route from Las Vegas to
Chicago, and Dyer was the only passenger with a ticket that matched this
itinerary. Therefore, the officers had reasonable suspicion to detain Dyer.
Dyer also argues that his trial counsel was ineffective in several other
respects; failing to object to Eberle’s testimony that Dyer had receipts totaling
$310 from his trip; failing to allege that the officers violated Dyer’s Miranda
rights; failing to have the marijuana tested; failing to object to the admission
of the manifest on the basis of hearsay, speculation, and foundation; failing
to object to Eberle’s testimony regarding the number of people riding the bus
from Las Vegas to Chicago based upon the contents of the manifest; and
failing to offer testimony or business records regarding the cellular telephone
numbers of Dyer.
We have reviewed the record, and we conclude that Dyer’s counsel
was not ineffective for failing to take any of the above actions. For these
reasons, we conclude that Dyer’s trial counsel was not ineffective in any way
and performed at least as well as a criminal lawyer with ordinary training and
skill. Therefore, Dyer’s final assignment of error is without merit.
(Id. at CM/ECF pp. 6-7, hyperlinks added.)
The Nebraska Supreme Court also rejected both Claim One, Part 1 and Claim Two
in its entirety when it summarily denied Dyer’s petition for further review. (Filing No. 18-4
at CM/ECF p. 1.)

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2.

Deference

Respondents argue that the foregoing findings of fact and conclusions of law
relating to Claim One, Part 1 and Claim Two 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. As set forth above, the Nebraska Court of Appeals reviewed all of
the evidence and determined, based on Strickland, Terry, and other federal and state law,
that the evidence was more than sufficient to support Dyer’s conviction and that Dyer’s trial
counsel’s performance was not deficient. (Filing No. 18-3 at CM/ECF pp. 1-8.) While the
Nebraska Court of Appeals’ opinion was perhaps conclusory as to some portions of Claim
Two, that court clearly found that Dyer’s Fourteenth and Sixth Amendment rights were not
violated, and rejected Claim Two in its entirety. Such an adjudication on the merits, while
perhaps not “well articulated” or elaborately reasoned, is still entitled to deference. See
Harrington, 131 S. Ct. at 784.
Indeed, 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). Dyer has not submitted any evidence, let alone clear and convincing evidence,
that the Nebraska Court of Appeals, or any other 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 federal
law. In light of these findings, Dyer’s Claim One, Part 1 and Claim Two are also dismissed.

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IT IS THEREFORE ORDERED that:
1.

Petitioner Lewis Fitzgerald Dyer’s Petition for Writ of Habeas Corpus (Filing
No. 1) is dismissed with prejudice; and

2.

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

DATED this 4th day of May, 2012.
BY THE COURT:

s/Laurie Smith Camp
Chief 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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