Floyd v. Houston

Filing 138

MEMORANDUM AND ORDER - Petitioner's Objection (Filing No. 137 ) is denied. 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.
MEMORANDUM AND ORDER
SCOTT FRAKES, Director of the
Nebraska Department of Correctional
Services; and BRAD HANSEN, Warden
Tecumseh State Correctional Institution;
Respondents.
This matter is before the court on Petitioner’s Objection to Memorandum
and Order 136. (Filing No. 137.) Petitioner objects to the court’s Memorandum
and Order dated November 9, 2017, (Filing No. 136) which granted Petitioner’s
previous Objection Motion (Filing No. 135) to add additional claims of ineffective
assistance of trial and appellate counsel contained within Petitioner’s Motion to
Amend (Filing No. 131) filed on October 6, 2017.
Petitioner claims that there are claims within the Motion to Amend that the
court failed to include when granting his previous Objection Motion. Specifically,
Petitioner claims:
That the claims of Trial counsel was ineffective for failing to
object to states theory of transfer Intent and jury instruction of
transferred Intent Number 6 (T.44) (33); Trial counsel was ineffective
for failing to object to trial court when trial court gave errousness [sic]
jury instructions of transferred Intent when the State had insufficient
evidence to support transferred intent theory; (34); and Trial counsel
was ineffective for failing to call an expert witness on seeing (35)
were not included in the Court’s Memorandum and order filing no.
136.

(Filing No. 137 at CM/ECF pp.1–2.)
In granting Petitioner’s previous Objection Motion (Filing No. 135), the
court specifically stated that it was allowing the additional claims that Petitioner
“had not previously raised.” (Filing No. 136 at CM/ECF p.1.) In doing so, the
court determined that the three claims identified above were already included in
the condensed and summarized statement of Petitioner’s Claims. For the sake of
clarity, Claim One, subpart 33, which deals with trial counsel’s failure to object to
erroneous jury instructions, includes Petitioner’s claims that trial counsel was
ineffective for (1) failing to object to the state’s theory of transferred intent and
jury instruction of transferred intent and (2) failing to object when the trial court
gave erroneous jury instructions of transferred intent when there was insufficient
evidence to support such theory. Claim One, subpart 4, which addresses trial
counsel’s failure to properly investigate the crime scene and the police
investigation in order to effectively impeach Shantelle Vickers’ testimony,
includes Petitioner’s claim that trial counsel was ineffective for failing to call an
expert witness on “seeing.”1
Accordingly, Petitioner’s Objection (Filing No. 137) is denied as the claims
Petitioner seeks to add are already included within the statement of Claims set
forth in the court’s November 9, 2017 Memorandum and Order (Filing No. 136).2

1

The court assumes that Petitioner’s reference to an “expert witness on seeing” deals
with his allegations regarding the Omaha Police Department investigation of Shantelle Vickers’
ability to see the shooter as she reported. (Filing No. 127 at CM/ECF pp.20–21, 36; Filing No.
131 at CM/ECF p.4.) To the extent that the “expert witness on seeing” relates to Petitioner’s
eyesight and need to wear glasses, such claim would be included in Claim One, subpart 7, which
addresses trial counsel’s failure to investigate Petitioner’s unusual gait and eyesight.
2

In his Objection, Petitioner also includes allegations of newly discovered evidence
concerning 911 calls but does not request any relief specific to this new information. (Filing No.
137 at CM/ECF pp.2–6.) To the extent Petitioner intends to use such information as the basis for
additional claims, the court reminds Petitioner that it will not entertain any further amendments

2

IT IS THEREFORE ORDERED that: Petitioner’s Objection (Filing No.
137) is denied.
Dated this 1st day of December, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

absent exceptional circumstances. Based on the information presented, the court is not
convinced the alleged newly discovered 911 call information would warrant amendment.

3