McDougald v. Houston et al

Filing 16

MEMORANDUM AND ORDER - This matter is dismissed with prejudice, and a separate judgment will be entered in accordance with this Memorandum and Order. The court will not issue a certificate of appealability in this matter. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KEITH MCDOUGALD,

)
)
Petitioner,
)
)
v.
)
)
ROBERT P. HOUSTON, Director,
)
and FRED BRITTEN, Warden, et al., )
)
Respondents.
)

8:13CV151

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner Keith McDougald’s (“Petitioner”
or “McDougald”) Petition for Writ of Habeas Corpus. (Filing No. 1.) For the reasons
set forth below, the court finds that a grant of a writ of habeas corpus is not warranted
on any of the issues set forth in McDougald’s habeas corpus petition.
Liberally construed, McDougald argues that he is entitled to a writ of habeas
corpus based on the following claims:
Claim One:

Petitioner was denied due process in violation of the Fourteenth
Amendment because 1) “there was never a proper Amended
Information filed”; and 2) “Petitioner’s conviction was obtained
on the basis of a no contest plea which was not knowingly,
willingly, intelligently, and understandingly made.”

Claim Two:

Petitioner was denied effective assistance of trial counsel in
violation of the Sixth and Fourteenth Amendments because
petitioner’s counsel failed to 1) investigate; 2) “discover and
produce evidence”; 3) “properly and correctly advise”; 4)
“present a known defense”; and 5) make timely objections.

Claim Three:

Petitioner was denied effective assistance of appellate counsel in
violation of the Sixth and Fourteenth Amendments because
appellate counsel failed “to raise issue[s] that would appear on the
record, such as, that the plea was invalid and void due to a
defective Information or Amended Information and due to the fact
medical evidence refuted the state[’]s case.”

(Filing No. 1.)
I. BACKGROUND
A.

Conviction

The State of Nebraska (“State”) charged McDougald by information in the
District Court of Douglas County, Nebraska (“state district court), with first degree
sexual assault of a child and terroristic threats. (Filing No. 9-8 at CM/ECF pp. 1013.) As part of a plea agreement, the State amended the original charge of first degree
sexual assault of a child to attempted first degree sexual assault, and dismissed the
terroristic threats charge. (Filing No. 9-10 at CM/ECF pp. 4-5.) On May 17, 2011,
McDougald pled no contest to an amended information charging him with attempted
first degree sexual assault. (Filing No. 9-8 at CM/ECF p. 14.) The factual basis
provided by the State established that McDougald subjected his 13-year-old daughter
to sexual penetration approximately five times between January 4, 2010, and
February 21, 2010. (Id. at CM/ECF pp. 12-13.) On July 15, 2011, the state district
court sentenced McDougald to 18 to 20 years in prison. (Id. at CM/ECF p. 15.)
B.

Direct Appeal

McDougald filed a direct appeal of his conviction and sentence. McDougald
was represented by trial counsel on appeal. (Id. at CM/ECF p. 1.) On direct appeal,

2

McDougald argued only that the state district court imposed an excessive sentence.
(Filing No. 9-3 at CM/ECF p. 4.)
On November 16, 2011, the Nebraska Court of Appeals affirmed McDougald’s
conviction and sentence by sustaining the State’s motion for summary affirmance.
(Filing No. 9-1 at CM/ECF p. 2.) McDougald did not file a petition for further review
in the Nebraska Supreme Court. (See id.)
C.

Post-Conviction Motion and Appeal

McDougald filed a motion for post-conviction relief in the state district court
on March 22, 2012. (Filing No. 9-9 at CM/ECF pp. 24-38.) McDougald argued in
his post-conviction motion that his plea was void or voidable because his counsel was
ineffective for failing to challenge the amended information on the basis that it did
not set forth the victim’s date of birth. (Id.) McDougald also argued that his counsel
was ineffective for failing to inform McDougald of his right to withdraw his plea, for
failing to talk to McDougald about a “defense” to the charges, and for failing to raise
certain issues on direct appeal. (Id.) The state district court denied McDougald’s
post-conviction motion without an evidentiary hearing on August 21, 2012. (Filing
No. 9-9 at CM/ECF pp. 64-69.)
McDougald appealed the state district court’s denial of post-conviction relief
to the Nebraska Court of Appeals. (Filing No. 9-9 at CM/ECF p. 1.) On October 18,
2012, the Nebraska Court of Appeals affirmed the state district court’s denial of postconviction relief by sustaining the State’s motion for summary affirmance. (Filing
No. 9-2 at CM/ECF p. 2.) McDougald filed a petition for further review in the
Nebraska Supreme Court, which was denied on April 10, 2013. (Id.)

3

D.

Habeas Corpus Petition

McDougald filed his habeas corpus petition in this court on May 13, 2013.
(Filing No. 1.) In response to the petition, Respondent filed an answer, a brief in
support of the answer, and the relevant state court records. (Filing Nos. 9, 10, 11, and
12.) Thereafter, McDougald filed a brief in support of his petition. (Filing No. 13.)
The court deems this matter fully submitted.
II. STANDARD OF REVIEW
A.

Standard Under 28 U.S.C. § 2254(d)

When a state court has adjudicated a habeas petitioner’s claim on the merits,
there is a very limited and extremely deferential standard of review both as to the law
and the facts. See 28 U.S.C. § 2254(d). Section 2254(d)(1) states that a federal court
may grant a writ of habeas corpus if the state court’s decision “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). 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. 529 U.S. at 405406. Further, “it is not enough for [the court] to conclude that, in [its] independent
judgment, [it] would have applied federal law differently from the state court; the
state court’s application must have been objectively unreasonable.” Rousan v. Roper,
436 F.3d 951, 956 (8th Cir. 2006).
With regard to the deference owed to factual findings of a state court’s
decision, Section 2254(d)(2) states that a federal court may grant a writ of habeas
corpus if a state court proceeding “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the State
4

court proceeding.” 28 U.S.C. § 2254(d)(2). Additionally, a federal court must
presume that a factual determination made by the state court is correct, unless the
petitioner “rebut[s] the presumption of correctness by clear and convincing evidence.”
28 U.S.C. § 2254(e)(1).
As the Supreme Court noted, “[i]f this standard is difficult to meet, that is
because it was meant to be.” Harrington v. Richter, 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. However, 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 (8th Cir. 2004) (“[A]s the language of the
statute makes clear, there is a condition precedent that must be satisfied before we can
apply the deferential AEDPA standard to [the petitioner’s] claim. The claim must
have been ‘adjudicated on the merits’ in state court.”).
The Eighth Circuit clarified what it means for a claim to be adjudicated on the
merits, finding that:
AEDPA’s requirement that a petitioner’s claim be adjudicated on the
merits by a state court is not an entitlement to a well-articulated or even
a correct decision by a state court. . . . Accordingly, the postconviction
trial court’s discussion of counsel’s performance–combined with its
express determination that the ineffective-assistance claim as a whole
lacked merit–plainly suffices as an adjudication on the merits under
AEDPA.
Worthington v. Roper, 631 F.3d 487, 496-97 (8th Cir. 2011) (internal quotation
marks and citations omitted). The court also determined that a federal court
reviewing a habeas claim under AEDPA must “look through” the state court opinions
and “apply AEDPA review to the ‘last reasoned decision’ of the state courts.” Id. at
5

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, 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.
B.

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

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

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

(B)

(i)
(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:

6

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, 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
7

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).
III. DISCUSSION
A.

Claim One

Liberally construed, McDougald argues in Claim One of his habeas corpus
petition that his no-contest plea is void or voidable because the amended information
upon which his plea was based did not set forth the age of the victim. (See grounds
I and II in McDougald’s petition at Filing No. 1 at CM/ECF pp. 8-11.) On initial
review of McDougald’s petition, the court liberally construed this argument as a twopart federal due process claim. (See introductory paragraphs of this Memorandum
and Order; see also court’s initial review of habeas corpus petition at Filing No. 7 at
CM/ECF p. 1.) However, upon careful review of the state court records in this
matter, it is clear that McDougald never raised these arguments as federal due process
claims in the Nebraska state courts as required by 28 U.S.C. § 2254(b)(1). See Cox
v. Burger, 398 F.3d 1025, 1031 (8th Cir.), cert. denied, 546 U.S. 844 (2005) (holding
that in order to fairly present a federal constitutional claim, the petitioner must “refer
to a specific federal constitutional right, a particular constitutional provision, a federal
constitutional case, or a state case raising a pertinent federal constitutional issue.”)
8

Moreover, he cannot now raise the arguments in a successive motion for postconviction relief. See Ortiz, 670 N.W.2d at 792. As such, Claim One is procedurally
defaulted.
McDougald has not argued, much less demonstrated, cause and prejudice for
the default of Claim One or that the court’s failure to consider Claim One will result
in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750
(1991) (stating claim that has been procedurally defaulted in the state courts will not
be entertained in a federal habeas corpus proceeding, unless the petitioner has shown
“cause and prejudice” to excuse his procedural default or, in the alternative, that there
would be a “fundamental miscarriage of justice” if the federal court declined to
consider the claim). Accordingly, the court will dismiss Claim One in its entirety.
B.

Claims Two and Three

In Claims Two and Three, McDougald argues that his counsel was ineffective
for failing to challenge the amended information. McDougald argues that counsel,
who represented McDougald at trial and on direct appeal, did not object to “defects”
in the amended information. McDougald also makes other blanket assertions about
counsel (see recitation of claims in introductory paragraphs of this Memorandum and
Order), but these can be easily dismissed because, like Claim One, they were never
presented in the Nebraska state courts. McDougald has not argued, much less
demonstrated, cause and prejudice for the procedural default of these other blanket
assertions about counsel’s performance or that the court’s failure to consider them
will result in a fundamental miscarriage of justice.
As for McDougald’s claim that his trial/appellate counsel was ineffective for
failing to challenge defects in the amended information, McDougald fairly presented
the argument to the Nebraska state courts. Therefore, this court will discuss the
argument’s merits under the two-pronged standard of Strickland v. Washington, 466
U.S. 668 (1984).
9

1.

Strickland Standard

Strickland requires that the petitioner demonstrate both that his counsel’s
performance was deficient, and that such deficient performance prejudiced the
petitioner’s defense. Id. at 687. The first prong of the Strickland test requires that the
petitioner demonstrate that his attorney failed to provide reasonably effective
assistance. Id. at 687-88. In conducting such a review, the courts “indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689. The second prong requires the petitioner to
demonstrate “a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. at 694. 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). Further, as set forth in Strickland, counsel’s “strategic
choices made after thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable” in a later habeas corpus action. Strickland, 466
U.S. at 690.
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). In Knowles, the Justices
stressed that under the Strickland standard, the state courts have a great deal of
“latitude” and “leeway,” which presents a “substantially higher threshold” for a
federal habeas petitioner to overcome. As stated in Knowles:
The question is not whether a federal court believes the state court’s
determination under the Strickland standard as incorrect but whether
that determination was unreasonable–a substantially higher
threshold. . . . And, because the Strickland standard is a general
standard, a state court has even more latitude to reasonably determine
that a defendant has not satisfied that standard.
Id. at 123 (internal quotation marks and citations omitted).
10

2.

State Court Findings

McDougald argued in his post-conviction motion to the state district court that
the amended information was deficient because it did not specify the victim’s age.
(Filing No. 9-9 at CM/ECF pp. 31-32.) He arguably raised the same issue in a brief
to the Nebraska Court of Appeals and in a petition for further review to the Nebraska
Supreme Court. (Filing No. 9-5 at CM/ECF p. 20; Filing No. 9-7 at CM/ECF p. 1.)
In each instance, the Nebraska state courts rejected McDougald’s argument.
In its order denying post-conviction relief, the state district court wrote:
[McDougald] claims counsel was ineffective in failing to object to the
amended information, because it did not specify the victim’s age.
“Generally, to charge a defendant with the commission of a criminal
offense, the information or complaint must allege each statutorily
essential element of the crime charged, expressed in the words of the
statute which prohibits the conduct charged as a crime, or in language
equivalent to the statutory terms defining the crime charged.” State v.
Van, 268 Neb. 814, 688 N.W.2d 600(2004). “Where an information
alleges the commission of a crime using language of the statute defining
that crime or terms equivalent to such statutory definition, the charge is
sufficient.” Id. Here, the Amended Information uses the statutory
language and [McDougald] has not presented any facts or law to
establish it was constitutionally deficient. Thus, this claim should be
dismissed without a hearing. State v. Gibilisco, 279 Neb. 308, 778
N.W.2d 1 06 (2010) (“The amended information was not
constitutionally deficient. Therefore, Gibilisco suffered no prejudice on
this basis and the district court properly denied his claim.”).
(Filing No. 9-9 at CM/ECF p. 10.) The Nebraska Court of Appeals sustained the
judgment of the state district court, and the Nebraska Court of Appeals denied a
petition for further review of the issues. (Filing No. 9-2 at CM/ECF p. 2.)

11

3.

Deference

The Nebraska state courts’ 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. McDougald has not argued, much less
established, that 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), or that the state court
reached “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).
Indeed, the court has reviewed the amended information and agrees with the
state district court that the information alleges the commission of a crime using
language of the statute defining that crime. (See amended information at Filing No.
9-8 at CM/ECF p. 10.) While the amended information does not specifically set forth
the victim’s date of birth, it does set forth that Petitioner attempted to subject “a
person of at least twelve years of age but less than sixteen years of age” to sexual
penetration, which mirrors the language in Nebraska’s sexual assault statute. (Id.)
See Neb. Rev. Stat. § 28-319. McDougald has failed to show that his counsel’s
performance was objectively deficient, or that any prejudice resulted from counsel’s
failure to object to the amended information. Accordingly, a grant of a writ of habeas
corpus is not warranted on Claims Two or Three.
IV. CERTIFICATE OF APPEALABILITY
A petitioner cannot appeal an adverse ruling on his petition for writ of habeas
corpus under § 2254 unless he is granted a certificate of appealability. 28 U.S.C.
§ 2253(c)(1); Fed. R. App. P. 22(b)(1). A certificate of appealability cannot be
granted unless the petitioner “has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, “[t]he
petitioner must demonstrate that reasonable jurists would find the district court’s
12

assessment of the constitutional claims debatable or wrong.” Slack v. Daniel, 529
U.S. 473, 484 (2000).
In this case, McDougald has failed to make a substantial showing of the denial
of a constitutional right. The court is not persuaded that the issues raised in the
habeas corpus petition are debatable among reasonable jurists, that a court could
resolve the issues differently, or that the issues deserve further proceedings.
Accordingly, the court will not issue a certificate of appealability in this case.
IT IS THEREFORE ORDERED that:
1.
This matter is dismissed with prejudice, and a separate judgment will be
entered in accordance with this Memorandum and Order.
2.

The court will not issue a certificate of appealability in this matter.

DATED this 23rd day of April, 2014.
BY THE COURT:

s/ Joseph F. Bataillon
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.

13