Floyd v. Houston

Filing 136

MEMORANDUM AND ORDER - Petitioner's Objection Motion (Filing No. 135 ) is granted. Petitioner's claims are amended to include Claim One, subparts (36) through (39) and Claim Two, subpart (13) as set forth in this Memorandum and Order. Resp ondents shall respond to Petitioner's claims as set forth in this Memorandum and Order. Respondents shall have until December 11, 2017, to file their answer and initial brief. The clerk's office is directed to set the following case management deadline: December 11, 2017: check for Respondents' answer and initial brief. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (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 comes before the court on Petitioner’s Objection Motion.
(Filing No. 135). Petitioner objects to the court’s Memorandum and Order dated
October 16, 2017, (Filing No. 132) which granted, at least in part, Petitioner’s
motion to amend his habeas corpus petition to add a claim of actual innocence
(“Motion to Amend”) (Filing No. 131). Petitioner now asks the court to allow his
additional claims of ineffective assistance of trial and appellate counsel stated in
his Motion to Amend.
The court had initially read Petitioner’s Motion to Amend as only seeking to
add a claim of actual innocence and that the allegations within the motion were
offered in support of that claim. Upon further review of Petitioner’s Motion to
Amend (Filing No. 131), however, the court determines that Petitioner alleged four
claims of ineffective assistance of trial counsel and one claim of ineffective
assistance of appellate counsel that he had not previously raised. Specifically,
Petitioner alleges trial counsel was ineffective for failing to (1) stay the
proceedings with respect to Count III, felon in possession of a firearm, for review
in the federal courts; (2) object to prejudicial testimony from Shantelle Vickers
regarding two threatening phone calls from Petitioner; (3) call Carolyn Floyd as a

character witness; and (4) sequester jurors. (Id. at CM/ECF p.10.) Petitioner also
alleges appellate counsel was ineffective for failing to raise on direct appeal that
certain state witnesses were paid to testify against Petitioner. (Id. at CM/ECF
p.15.)
Because the court granted Petitioner’s Motion to Amend, the court will err
on the side of caution and will grant Petitioner’s Objection Motion to include the
claims of ineffective assistance of trial and appellate counsel identified above. For
ease of reference, the court will restate all of Petitioner’s claims here, incorporating
the court’s previous orders setting forth Petitioner’s claims. (See Filing Nos. 128,
130, and 132.) Condensed and summarized for clarity, Petitioner’s claims1 are:
Claim One:

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
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

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For reference of the parties, the court will cite to the pages of Petitioner’s amended
habeas petition (Filing No. 127) and Motion to Amend (Filing No. 131) from which it construed
each of Petitioner’s claims.

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(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 genderbiased 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 (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 cross-examine 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 crossexamine Shawn Smith about Petitioner’s “unusual

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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
(Id. at CM/ECF pp.46-48); (35) made an improper
opening statement “basically telling the jury that
all the evidence against [Petitioner] was true” (Id.);
(36) failed to stay the proceedings with respect to
Count III, felon in possession of a firearm, for
review in the federal courts (Filing No. 131 at
CM/ECF p.10.) ; (37) failed to object to prejudicial
testimony from Shantelle Vickers regarding two
threatening phone calls from Petitioner (Id.); (38)

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failed to call Carolyn Floyd as a character witness
(Id.); and (39) failed to sequester jurors (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
himself “and denied counsel during hearing to
litigate;” (12) Petitioner’s assigned errors on both

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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.

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direct appeals as federal constitutional claims
(Filing No. 127 at CM/ECF pp.49-50); (13)
payment of certain state witnesses to testify against
Petitioner (Filing No. 131 at CM/ECF p.15).
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 (Filing No. 127 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 pp.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.)

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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
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.)

Claim Seven:

Petitioner has presented a claim of Actual
Innocence as a gateway through any type of
procedural default. (Filing No. 131 at CM/ECF p.
15.)

As previously stated, Petitioner’s claims, with the exception of Claim Five
(and Claim Six as it pertains to Claim Five), are potentially cognizable in federal
court. Claim Five remains dismissed. (See Filing No. 128 at CM/ECF p.6.) In
light of the court’s ruling, the deadline for Respondents to file their answer and
initial brief is extended to 30 days from the date of this order.
The court stresses to Petitioner that the court’s decision to allow the
additional claims raised in Petitioner’s previous Motion to Amend (Filing No. 131)
should not be viewed as an invitation to seek further amendments. This matter has
been pending for over four years, Petitioner previously had the assistance of
appointed counsel, and the court ordered Petitioner to include all claims for relief
in a single amended petition (Filing No. 122). As such, the court will not entertain
any further amendments absent exceptional circumstances.
IT IS THEREFORE ORDERED that:
1.
Petitioner’s Objection Motion (Filing No. 135) is granted.
Petitioner’s claims are amended to include Claim One, subparts (36) through (39)
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and Claim Two, subpart (13) as set forth in this Memorandum and Order.
Respondents shall respond to Petitioner’s claims as set forth in this Memorandum
and Order.
2.
Respondents shall have until December 11, 2017, to file their answer
and initial brief. The clerk’s office is directed to set the following case
management deadline: December 11, 2017: check for Respondents’ answer and
initial brief.
Dated this 9th day of November, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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