Floyd v. Houston

Filing 128

MEMORANDUM AND ORDER - Upon initial review of the amended habeas corpus petition (Filing No. 127 ), the court preliminarily determines that Petitioner's claims, as they are set forth in this Memorandum and Order, are potentially cognizable in f ederal court with the exception of Claim Five. Claim Five is dismissed. By October 23, 2017, Respondents must file a motion for summary judgment or answer. The clerk of the court is directed to set a pro se case management deadline in this case using the following text: October 23, 2017: deadline for Respondents to file motion for summary judgment or answer and separate brief. The court understands that Respondents have filed all state court records in this matter. (See Filing Nos. 9 - 13 , [31 ], 109 .) In the event that Respondents' designation of state court records is deemed insufficient by Petitioner, Petitioner may file a motion with the court requesting additional documents. Such motion must set forth the documents requested an d the reasons the documents are relevant to the cognizable claims. The clerk of the court is directed to send Filing No. 109 ("Amended Designation of State Court Records in Support of Amended Answer") to Petitioner without the attachments . No discovery shall be undertaken without leave of the court. See Rule 6 of the Rules Governing Section 2254 Cases in the United States District Courts. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party with filing 109 ) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WILLIAM C. FLOYD, JR.,
Petitioner,

8:13CV195

vs.
SCOTT FRAKES, Director of the
Nebraska Department of Correctional
Services; and BRAD HANSEN, Warden
Tecumseh State Correctional Institution;

MEMORANDUM
AND ORDER

Respondents.
This matter is before the court on preliminary review of Petitioner William
C. Floyd, Jr.’s 58-page Amended Petition for Writ of Habeas Corpus (Filing No.
127) brought pursuant to 28 U.S.C. § 2254. The purpose of this review is to
determine whether Petitioner’s claims, when liberally construed, are potentially
cognizable in federal court. Condensed and summarized for clarity, Petitioner’s
claims1 are:
Claim One:

1

Petitioner was denied effective assistance of
counsel because trial counsel (1) failed to
investigate Carrissa Flanagan, Maurice Thomas,
and men hired to retaliate against Maurice Davis
and his family as possible suspects and failed to
introduce that evidence at trial (Filing No. 127 at
CM/ECF pp. 17, 18-19, 33, 34-35); (2) failed to
interview Becky Breyman, Felicia Williams, and
Coney Stephens (Id. at CM/ECF p. 18); (3) failed
to subpoena Traeshawn Davis to testify at trial, or
alternatively, introduce his prior trial testimony
(Id. at CM/ECF pp. 20, 33); (4) failed to properly

For reference of the parties, the court will cite to the pages of Petitioner’s
amended habeas petition from which it construed each of Petitioner’s claims.

investigate the crime scene and the Omaha Police
Department investigation in order to effectively
impeach Shantelle Vickers’ testimony at trial (Id.
at CM/ECF pp. 20-21, 36); (5) failed to interview
Steven Lindsay and subpoena him to testify at trial
(Id. at CM/ECF pp. 22, 33); (6) failed to
investigate Pierce Armstead and subpoena him to
testify at trial (Id. at CM/ECF pp. 22-23); (7) failed
to investigate Petitioner’s “unusual gait” and
eyesight (Id. at CM/ECF p. 24); (8) failed to order
any ballistic examination or evaluation of the
trajectory and residue soot of the bullet removed
from the windowsill (Id. at CM/ECF p. 26); (9)
failed to subpoena Shantelle Vickers’ telephone
records from October 7 and 8, 2003 (Id.); (10)
failed to interview Howard Banister (Id. at
CM/ECF p. 27); (11) failed to adequately
investigate the prior bad act that occurred on April
24, 2003 (Id.); (12) failed to present truthful
evidence at the pretrial hearing and at trial about
the April 24, 2003, prior bad act (Id. at CM/ECF p.
28); (13) failed to challenge in a motion to
suppress the validity of Shantelle Vickers’
affidavit as probable cause for the arrest warrant
(Id.); (14) failed to conduct proper voir dire when
counsel failed to remove certain jurors for cause or
with peremptory strikes and used peremptory
strikes in a gender-biased manner (Id. at CM/ECF
pp. 29-31); (15) failed to move for a mistrial or
request a curative instruction after a juror
discussed his opinion of Petitioner’s guilt in front
of the other jurors during voir dire (Id. at CM/ECF
p. 30); (16) failed to object when the prosecutor
used peremptory strikes in a gender-biased manner
(Id. at CM/ECF p. 31); (17) prohibited Petitioner
from testifying (Id. at CM/ECF pp. 27, 32); (18)
failed to subpoena Shantelle Vickers’ medical
records to impeach her testimony at trial about
Petitioner’s acts of domestic violence against her

2

(Id. at CM/ECF p. 35); (19) failed to investigate
Shantelle Vickers’ abuse of Petitioner (Id. at
CM/ECF pp. 35-36); (20) failed to subpoena
Officer Allen Wagner to testify at trial (Id. at
CM/ECF p. 36); (21) failed to effectively crossexamine Ruth Buie about Petitioner’s clothing, the
exact times he was with her that day, his “unusual
gait,” and his glasses (Id. at CM/ECF p. 37); (22)
failed to effectively cross-examine Shawn Smith
about Petitioner’s “unusual gait” and glasses (Id.);
(23) failed to cross-examine Petitioner’s mother
about his “unusual gait” (Id. at CM/ECF p. 38);
(24) failed to cross-examine Shantelle Vickers and
Andre Jack about whether the suspect moved in a
unique way or wore glasses (Id.); (25) failed to
investigate the location of the missing video and
audiotape of Shantelle Vickers’ first statement to
law enforcement (Id. at CM/ECF p. 39); (26) failed
to assert a Brady violation with regard to the
missing video and audiotape (Id.); (27) failed to
adduce at trial the discrepancies between the truth
and Shantelle Vickers’ first statement to law
enforcement (Id.); (28) failed to investigate the
location of the photo array that law enforcement
displayed to Andre Jack (Id. at CM/ECF p. 40);
(29) failed to assert a Brady violation with regard
to the photo array (Id.); (30) failed to object to
Exhibits 145 and 146 and testimony about them
(Id. at CM/ECF p. 44); (31) failed to impeach
Detective Christopher Perna’s testimony at trial
with evidence that Petitioner escaped from him
during the April 24, 2003, prior bad act (Id. at
CM/ECF p. 45); (32) failed to exclude or remedy
Shantelle Vickers’ testimony that she and
Petitioner had hundreds of fights (Id.); (33) failed
to object to erroneous jury instructions (Id. at
CM/ECF pp. 45-46); (34) failed to object to
prosecutorial misconduct during closing arguments
and the direct examination of Shantelle Vickers

3

(Id. at CM/ECF pp. 46-48); and (35) made an
improper opening statement “basically telling the
jury that all the evidence against [Petitioner] was
true.” (Id.)
Claim Two:

Petitioner was denied effective assistance of
counsel because counsel failed to raise on direct
appeal (1) prosecutorial misconduct because the
State withheld from Petitioner the police report
about the video and audiotape of Shantelle
Vickers’ first statement to law enforcement and the
photo array that law enforcement displayed to
Andre Jack; (2) sufficiency of the evidence for
Petitioner’s convictions of first degree murder and
manslaughter of an unborn child2; (3) prosecutorial
misconduct because the State introduced the 911
tape into evidence at trial; (4) prosecutorial
misconduct because the State presented false and
misleading evidence to the jury; (5) judicial
misconduct because the trial court overruled trial
counsel’s motion to remove a juror for cause who
formed a preconceived opinion about Petitioner’s
guilt; (6) judicial misconduct because the trial
court erroneously instructed the jury; (7)
insufficient notice of the nature and cause of the
accusation during Petitioner’s arraignment on the
second
amended
information;
(8)
the
unconstitutionality of Petitioner’s conviction and
sentence for Count III, felon in possession of a
firearm; (9) judicial misconduct for imposing a
sentence on Count III when the State failed to offer
documentary evidence that the underlying offense
was a felony; (10) prosecutorial misconduct
because law enforcement lacked probable cause to
arrest Petitioner; and (11) judicial misconduct
because the trial court judge refused to recuse

2

This claim includes Petitioner’s claims that counsel failed to raise (1) that
the State failed to prove that the manner of death was homicide, and (2) judicial
misconduct because the trial court accepted the jury’s guilty verdict.
4

himself “and denied counsel during hearing to
litigate.” (Id. at CM/ECF pp. 49-50.)
Claim Three:

Petitioner was denied the constitutional right to a
fair trial because (1) the prosecutor and trial
counsel used peremptory strikes in a gender-biased
manner (Id. at CM/ECF pp. 31-32); (2) the State
committed prosecutorial misconduct when it
withheld from Petitioner the video and audiotape
of Shantelle Vickers’ first statement to law
enforcement and the photo array that law
enforcement displayed to Andre Jack in violation
of Brady (Id. at CM/ECF pp. 39-40); (3) Detective
Christopher Perna committed misconduct when he
coached Shantelle Vickers during her second
statement to law enforcement and altered the crime
scene diagram to match Vickers’ “new” version of
events (Id. at CM/ECF pp. 23, 25, 40-44); (4) the
State committed prosecutorial misconduct when it
permitted evidence of the altered crime scene at
trial (Id. at CM/ECF p. 44); (5) the trial court
erroneously instructed the jury (Id. at CM/ECF pp.
45-46); and (6) the State committed prosecutorial
misconduct during closing arguments and direct
examination of Shantelle Vickers. (Id. at CM/ECF
46-48.)

Claim Four:

Petitioner was denied effective assistance of
counsel because trial and appellate counsel failed
to maintain sufficient client contact with Petitioner
to enable Petitioner “to obtain or pursue significant
avenues which would have led to exculpatory
information” and “to allow for [Petitioner] to make
decisions which would affect his opportunity to
preserve claims.” (Id. at CM/ECF pp. 51-54.)

Claim Five:

The state district court and the Nebraska Supreme
Court denied Petitioner the right to a full and fair
opportunity to investigate and present his claims in

5

his postconviction proceedings. (Id. at CM/ECF
pp. 32, 39-40, 54-56.)
Claim Six:

Each of Petitioner’s aforementioned claims and
their subparts constitute a violation of his rights to
Due Process, Equal Protection, and fair process
under the Fourteenth Amendment. (Id. at CM/ECF
p. 55.)

With the exception of Claim Five (and Claim Six as it pertains to Claim
Five), the court determines that Petitioner’s claims, when liberally construed, are
potentially cognizable in federal court. However, the court cautions Petitioner that
no determination has been made regarding the merits of these claims or any
defenses to them or whether there are procedural bars that will prevent Petitioner
from obtaining the relief sought. Claim Five is not a cognizable habeas corpus
claim because it is based on errors in the state postconviction proceedings. Errors
during state postconviction review are not cognizable in a federal habeas corpus
action. See Jenkins v. Houston, 4:05CV3099, 2006 WL 126632 (D. Neb. 2006)
(collecting cases). Claim Five is dismissed. However, Respondents should be
mindful of and, if necessary, respond to Petitioner’s allegations in his
amended habeas petition that he is “excused from any exhaustion
requirements that may otherwise have impeded this action” because he was
denied the right to a full and fair opportunity to investigate and present his
claims in his postconviction proceedings. (See Filing No. 127 at CM/ECF pp. 816, 54-55.)
IT IS THEREFORE ORDERED that:
1.
Upon initial review of the amended habeas corpus petition (Filing No.
127), the court preliminarily determines that Petitioner’s claims, as they are set
forth in this Memorandum and Order, are potentially cognizable in federal court
with the exception of Claim Five. Claim Five is dismissed.

6

2.
By October 23, 2017, Respondents must file a motion for summary
judgment or answer. The clerk of the court is directed to set a pro se case
management deadline in this case using the following text: October 23, 2017:
deadline for Respondents to file motion for summary judgment or answer and
separate brief.
3.
The court understands that Respondents have filed all state court
records in this matter. (See Filing Nos. 9-13, 31, 109.) In the event that
Respondents’ designation of state court records is deemed insufficient by
Petitioner, Petitioner may file a motion with the court requesting additional
documents. Such motion must set forth the documents requested and the reasons
the documents are relevant to the cognizable claims. The clerk of the court is
directed to send Filing No. 109 (“Amended Designation of State Court
Records in Support of Amended Answer”) to Petitioner without the
attachments.
4.
If Respondents elect to file a motion for summary judgment, the
following procedures must be followed by Respondents and Petitioner:
A.

The motion for summary judgment must be accompanied by a
separate brief, submitted at the time the motion is filed.

B.

Copies of the motion for summary judgment and Respondents’
brief must be served on Petitioner except that Respondents are
only required to provide Petitioner with a copy of the specific
pages of the record that are cited in Respondents’ brief.

C.

No later than 30 days following the filing of the motion for
summary judgment, Petitioner must file and serve a brief in
opposition to the motion for summary judgment. Petitioner
may not submit other documents unless directed to do so by
the court.
7

D.

No later than 30 days after Petitioner’s brief is filed,
Respondents must file and serve a reply brief. In the event that
Respondents elect not to file a reply brief, they should inform
the court by filing a notice stating that they will not file a reply
brief and that the motion is therefore fully submitted for
decision.

E.

If the motion for summary judgment is denied, Respondents
must file an answer and a brief that complies with terms of this
order. (See the following paragraph.) The documents must be
filed no later than 30 days after the denial of the motion for
summary judgment. Respondents are warned that failure to
file an answer and a brief in a timely fashion may result in
the imposition of sanctions, including Petitioner’s release.

4.
If Respondents elect to file an answer, the following procedures must
be followed by Respondents and Petitioner:
A.

By October 23, 2017, Respondents must file an answer. The
answer must be accompanied by a separate brief, submitted at
the time the answer is filed. Both the answer and the brief must
address all matters germane to the case including, but not
limited to, the merits of Petitioner’s allegations that have
survived initial review, and whether any claim is barred by a
failure to exhaust state remedies, a procedural bar, nonretroactivity, a statute of limitations, or because the petition is
an unauthorized second or successive petition. See, e.g., Rules
5(b) and 9 of the Rules Governing Section 2254 Cases in the
United States District Courts.

8

B.

Copies of the answer and Respondents’ brief must be served on
Petitioner at the time they are filed with the court except that
Respondents are only required to provide Petitioner with a copy
of the specific pages of the designated record that are cited in
Respondents’ brief.

C.

No later than 30 days after Respondents’ brief is filed,
Petitioner must file and serve a brief in response. Petitioner
must not submit any other documents unless directed to do so
by the court.

D.

No later than 30 days after Petitioner’s brief is filed,
Respondents must file and serve a reply brief. In the event that
Respondents elect not to file a reply brief, they should inform
the court by filing a notice stating that they will not file a reply
brief and that the merits of the petition are therefore fully
submitted for decision.

5.
No discovery shall be undertaken without leave of the court. See Rule
6 of the Rules Governing Section 2254 Cases in the United States District Courts.
Dated this 7th day of August, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

9