Floyd v. Houston

Filing 199

MEMORANDUM AND ORDER - that the Petition for Writ of Habeas Corpus (Filing No. 127 & Filing No. 131 ) is denied and dismissed with prejudice. No certificate of appealability has been or will be issued. Judgment will be issued by separate document. 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.,
8:13CV195

Petitioner,
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 Petitioner William C. Floyd, Jr.’s
(“Petitioner” or “Floyd”) Petition for Writ of Habeas Corpus. (Filing No. 127 &
Filing No. 131.) For the reasons that follow, Petitioner’s habeas petition is denied
and dismissed with prejudice.
I. CLAIMS
Summarized and condensed, and as set forth in the court’s order filed
November 9, 2017 (Filing No. 136), Petitioner asserted the following claims that
were potentially cognizable in this court:
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 Lindsey1 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
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’
1

In its prior order setting forth the claims (Filing No. 136), the court spelled
Lindsey as “Lindsay.” Both the Nebraska state courts and Floyd spell his name
“Lindsey.” Therefore, the court will use “Lindsey” throughout this Memorandum
and Order.
2

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 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 (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.);
3

(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) failed to call Carolyn Floyd as a
character witness (Id.); and (39) failed to sequester jurors
(Id.).
Claim Two:

2

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

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

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 direct appeals as
federal constitutional claims (Filing No. 127 at CM/ECF
pp. 49-50); [and] (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, 4044); (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. 5154.)
5

Claim Six:3

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.)

(Filing No. 136 at CM/ECF pp. 2-7.)
II. BACKGROUND
A. Convictions and Sentences
The court states the facts as they were recited by the Nebraska Supreme Court
on direct appeal following retrial. See State v. Floyd, 277 Neb. 502, 763 N.W.2d 91
(2009) (Filing No. 9-5). See Bucklew v. Luebbers, 436 F.3d 1010, 1013 (8th Cir.
2006) (utilizing state court’s recitation of facts on review of federal habeas petition).
On July 30, 2004, Floyd was charged with first degree murder, manslaughter
of an unborn child, and being a felon in possession of a weapon. Floyd was originally
convicted in 2005 of these charges; however, the murder and manslaughter
convictions were reversed on appeal by this court as the result of improper
communication between the jury and a bailiff.4 [State v. Floyd, 272 Neb. 898, 725
N.W.2d 817 (2007), disapproved, State v. McCulloch, 274 Neb. 636, 742 N.W.2d
727.]

3

The court previously dismissed Claim Five (and Claim Six as it pertains to
Claim Five). (See Filing No. 128 at CM/ECF p.6; Filing No. 136 at CM/ECF p. 7.)
4

The Nebraska Supreme Court affirmed Floyd’s conviction for felon in
possession of a firearm. (Filing No. 9-4 at CM/ECF p. 18.)
6

Floyd was retried. Following a jury trial, he was again convicted of first
degree murder and manslaughter of an unborn child. Floyd was sentenced to life
imprisonment on the murder conviction and 20 to 20 years’ imprisonment on the
manslaughter conviction.
The charges against Floyd arose out of the shooting death of Destiny Davis,
who was pregnant at the time of her death. The evidence establishes that on October
7, 2003, Davis and several other individuals, including Davis’ sister, Shantelle
Vickers, were in the living room in a home in Omaha, Nebraska. Just before 10:30
p.m., Vickers left the living room for the bathroom. The other individuals, including
Davis, remained in the living room. While in the bathroom, Vickers heard gunshots.
Those gunshots were fired from outside the living room window. Davis and two
others were hit; Davis and her unborn child were killed. Vickers testified that after
hearing the gunshots, she looked out the bathroom window and saw a man she
identified as Floyd outside the house.
The State’s theory of prosecution was that Vickers, who had previously been
romantically involved with Floyd, was the intended victim of the shooting. In
support of this theory, Vickers testified as to her combative relationship with Floyd,
including specific incidents in which Floyd acted in a violent manner toward her. In
particular, Vickers testified to four separate incidents: one on January 21, 2003;
another sometime in the fall of 2003; one on October 6, 2003; and one in the
afternoon on October 7, 2003, the day of the shooting. Floyd objected to the
introduction of all but the October 7 incident. Floyd’s motion in limine was denied.
The court concluded that the prior history of violence went not to Floyd’s propensity
for violence, but to Floyd’s motive or intent to commit the crimes charged.
Voir dire in this case was held on August 20 and 21, 2007. At the conclusion
of the first day of voir dire, the jury was admonished to not “read, view or listen to
any reports about this case . . . . If any accounts of this case do come to your attention,
you must immediately disregard them.”
7

An Omaha World-Herald newspaper article regarding the trial was published
during the jury selection process and appeared in both the August 20, 2007, evening
edition and the August 21 morning edition of the newspaper. Based upon the
publication of the article, Floyd motioned for a mistrial. The court reserved ruling
on the motion and conducted an inquiry into the jury pool’s exposure to the article.
During its inquiry, eight members of the jury panel admitted exposure to the
article in some form. Each member of the panel was questioned separately. Four
prospective jurors were struck for cause at the conclusion of their individual
questioning; another two prospective jurors were excused for cause at the conclusion
of all questioning. At that time, the district court also denied Floyd’s motion for
mistrial.
Floyd also objected to the two remaining members of the panel, both of whom
eventually sat on the jury. The district court denied those motions. The questioning
of juror D.W. established that he saw the newspaper of a fellow prospective juror
and noticed a headline that contained the words “Floyd,” “retrial,” and “2003.” D.W.
indicated that once he saw the name and year, he “just looked down,” and that he
could not tell what the exact headline was and had no idea why a retrial was
necessary. As for juror F.W., she testified that she was skimming the newspaper and
saw the name “William Floyd” and that she “quickly put it [the newspaper] into the
trash, I mean, as fast as I probably have in my life.” F.W. denied seeing or reading
any other information from the article.
B. Direct Appeal Following Retrial
Floyd appealed his convictions and sentences to the Nebraska Supreme Court
on January 4, 2008. (Filing No. 9-2.) Floyd was represented both at trial and on direct
appeal by the same lawyer. Floyd argued that the state district court erred in (1)
admitting evidence of specific incidents of Floyd’s abuse of Vickers; (2) basing its
ruling on the admissibility of evidence pursuant to Neb. Evid. R. 404, Neb. Rev.
8

Stat. § 27-404 (Reissue 2008), in part on testimony from a prior rule 404 hearing;
(3) using an incorrect definition of “clear and convincing” in deciding whether the
State met its burden under rule 404; (4) refusing to admit evidence of specific
incidents of violence by Vickers toward her former and current husbands; and (5)
denying Floyd’s motion to strike or motion for mistrial due to the fact that several
prospective jurors were exposed to a newspaper article regarding Floyd’s retrial.
Floyd, 277 Neb. at 506, 763 N.W.2d at 97. (Filing No. 9-5 at CM/ECF pp. 4-5.)
In a written opinion filed April 3, 2009, the Nebraska Supreme Court rejected
Floyd’s claims on the merits. Floyd, 277 Neb. at 507-16, 763 N.W.2d at 98-103.
(Filing No. 9-5 at CM/ECF pp. 5-13.) As the court found no merit to Floyd’s
assigned errors, the court affirmed his convictions and sentences. Floyd, 277 Neb. at
516, 763 N.W.2d at 103. (Filing No. 9-5 at CM/ECF p. 13.) The Nebraska Supreme
Court overruled Floyd’s motion for rehearing and issued its mandate on June 30,
2009. (Filing No. 9-2 at CM/ECF p. 3.)
C. Postconviction Action
Floyd filed a verified motion for postconviction relief on June 21, 2010.
(Filing No. 31-2 at CM/ECF pp. 49-130; Filing No. 31-3 at CM/ECF pp. 1-21.) On
June 2, 2011, Floyd filed an amended motion for postconviction relief. (Filing No.
10-3 at CM/ECF pp. 10-159; Filing No. 10-4 at CM/ECF pp. 1-9.) Floyd alleged
instances of trial court error and a litany of ineffective assistance of counsel claims
and challenged the constitutionality of his convictions and sentences. (Filing No. 103 at CM/ECF pp. 10-159; Filing No. 10-4 at CM/ECF pp. 1-9; Filing No. 10-6 at
CM/ECF pp. 101-15.)
The State filed a motion to dismiss Floyd’s amended postconviction motion
without an evidentiary hearing. (Filing No. 10-2 at CM/ECF pp. 21-37.) After
reviewing the files and records, the state district court granted the State’s motion to
dismiss Floyd’s amended postconviction motion without an evidentiary hearing.
9

(Filing No. 10-6 at CM/ECF pp. 101-16.) In a written order, the court found that
Floyd’s claims concerning the constitutionality of his convictions and the alleged
errors of the trial court were procedurally barred because they should have been
argued on direct appeal. (Id. at CM/ECF p. 115.) On the claims of ineffective
assistance, the district court found that Floyd failed to sufficiently plead prejudice
and that the record affirmatively established that Floyd was not prejudiced by any of
the allegations of ineffective assistance. (Id. at CM/ECF pp. 103-15.)
Floyd appealed to the Nebraska Supreme Court, arguing that the state district
court erred in denying his amended motion for postconviction relief without an
evidentiary hearing on his ineffective assistance of counsel claims and in failing to
appoint postconviction counsel. (Filing No. 9-12; Filing No. 9-14; Filing No. 10-1
at CM/ECF pp. 1; Filing No. 109-1 at CM/ECF pp. 5-6.) As articulated by the
Nebraska Supreme Court, Floyd raised the following ineffective assistance of trial
counsel claims: (1) failure to investigate other suspects; (2) failure to compare the
bullets removed from Davis and the other victims; (3) failure to investigate whether
Vickers could have identified Floyd from the bathroom window; (4) failure to
request an independent forensic pathology expert and investigate the expert
testimony; (5) failure to subpoena Officer Allen Wagner; (6) failure to subpoena
Traeshawn Davis; (7) failure to subpoena Steven Lindsey; (8) failure to subpoena
Carrissa Flanagain and Maurice Thomas; (9) failure to subpoena Dr. Darin Jackson;
(10) failure to subpoena Becky Breyman, Coney Stephens, and Felicia Williams;
(11) failure to subpoena Vickers and Theresa Gregg, the clinical manager of the
emergency department at Creighton University Medical Center, to bring medical
records relating to the alleged domestic abuse of Vickers by Floyd; (12) failure to
exclude evidence of dismissed charges of assault with respect to the two other
shooting victims; (13) failure to ask appropriate questions during voir dire; (14)
failure to use peremptory strikes on jurors who were not removed for cause for
seeing the newspaper article; (15) failure to request a pretrial jury instruction that
the jurors avoid electronic media, such as twitter; (16) failure to use peremptory
strikes on certain jurors for a variety of reasons; (17) failure to move to sequester the
10

jury; (18) failure to interview jurors after trial to determine whether or not there was
jury misconduct during trial and deliberations; (19) failure to object to improper
closing arguments; (20) failure to object to testimony by Vickers that she had seen
Floyd with a gun; and (21) failure in advising Floyd to not testify. (Filing No. 1091 at CM/ECF pp. 9-29.)
Floyd also argued that appellate counsel was ineffective for failing to raise
Fourteenth Amendment claims on direct appeal, specifically: lack of jurisdiction,
use of false evidence and witnesses, the State’s failure to disclose impeachment
evidence (Brady material), failure to give proper notice of the nature and cause of
accusations against Floyd, improper jury instructions, failure to prove guilt beyond
a reasonable doubt, incorrect elements for first degree murder and manslaughter of
an unborn child, presenting evidence designed to inflame the jury, the trial court
erred in accepting the jury’s guilty verdict when there was no proof of venue, trial
court erred in overruling counsel’s motion to remove for cause juror who had formed
an opinion about Floyd’s guilt, erroneous jury instructions, and insufficient evidence
in the second amended information on counts I, II, and III. (Filing No. 109-1 at
CM/ECF pp. 29-31.)
In a written memorandum opinion filed May 23, 2013, the Nebraska Supreme
Court affirmed the state district court’s decision to dismiss Floyd’s amended motion
for postconviction relief without an evidentiary hearing. (Filing No. 109-1.) The
court found that each allegation of ineffective assistance of counsel was insufficient
because either (1) Floyd failed to properly plead prejudice or (2) the record
affirmatively demonstrated that Floyd was not prejudiced. (Id. at CM/ECF pp. 8-9.)
The court also found that the state district court did not err in failing to appoint
counsel because Floyd’s amended postconviction motion presented no justiciable
issues. (Id. at CM/ECF p. 31.) Floyd filed a motion for rehearing, which was denied
as untimely on June 19, 2013. (Filing No. 9-3 at CM/ECF p. 4.)

11

D. Habeas Petition
Floyd filed his original Petition in this court on July 1, 2013 (Filing No. 1), an
Amended Petition on July 7, 2017 (Filing No. 127), and Motion to Amend his
Petition on October 6, 2017 (Filing No. 131). The “Petition” before the court consists
of the Amended Petition (Filing No. 127) and Motion to Amend (Filing No. 131). In
response to the Petition, Respondents filed an Answer (Filing No. 143), a Brief
(Filing No. 144), and the relevant state court records (Filing Nos. 9, 10, 11, 12, 13,
31 & 109). Respondents argue that: (1) any habeas claims relating to Floyd’s felon
in possession of a firearm conviction are untimely and barred by the limitations
period set forth in 28 U.S.C. § 2244(d); (2) the majority of Floyd’s habeas claims
relating to his murder and manslaughter convictions have been procedurally
defaulted; and (3) any remaining claims that have not been procedurally defaulted
have no substantive merit. (Filing No. 144 at CM/ECF p. 11.) Floyd filed a brief
(Filing Nos. 186 & 187) in response to Respondents’ Answer and supporting
exhibits (Filing No. 192). Respondents filed a reply brief. (Filing No. 198.) This
matter is fully submitted for disposition.
III. STATUTE OF LIMITATIONS
Respondents first argue that any claims relating to Floyd’s conviction for
felon in possession of a firearm are barred by the one-year statute of limitations set
forth in 28 U.S.C. § 2244(d)(1).5 Upon review, the court finds as follows.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
imposed a one-year statute of limitations on petitions for a writ of habeas corpus

5

Respondents assert, and the court agrees, that Floyd’s Petition was timely
filed with respect to his first degree murder and manslaughter of an unborn child
convictions.
12

filed pursuant to 28 U.S.C. § 2254. 28 U.S.C. § 2244(d)(1). 28 U.S.C. § 2244(d)
states:
(1) A 1-year period of limitation shall apply to an application for a writ
of habeas corpus by a person in custody pursuant to the judgment of a
State court. The limitation period shall run from the latest of—
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time
for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period of
limitation under this subsection.
In the first direct appeal, the Nebraska Supreme Court reversed Floyd’s
convictions for first degree murder and manslaughter of an unborn child but affirmed
his conviction and sentence for felon in possession of a firearm. (Filing No. 9-4.) On
February 14, 2007, the Nebraska Supreme Court denied Floyd’s motion for
rehearing. (Filing No. 9-1 at CM/ECF p. 3.) Thus, absent a later triggering date under
13

28 U.S.C. § 2244(d)(1)(B)-(D), Floyd’s conviction for felon in possession of a
firearm became final on May 15, 2007, which is ninety days after the Nebraska
Supreme Court denied Floyd’s motion for rehearing. See Gonzalez v. Thaler, 565
U.S. 134, 150 (2012) (holding that, for petitioners who do not pursue direct review
all the way to the United States Supreme Court, a judgment becomes final “when
the time for pursuing direct review in [the Supreme Court], or in state court,
expires.”); King v. Hobbs, 666 F.3d 1132, 1135 (8th Cir. 2012) (“If the Supreme
Court has jurisdiction to review the direct appeal, the judgment becomes final ninety
days after the conclusion of the prisoner’s direct criminal appeals in the state
system.”) (citing Sup. Ct. R. 13.1). Accordingly, the one-year limitations period
began to run from May 15, 2007. Floyd, however, did not file his original Petition
in this court until July 1, 2013. (Filing No. 1.)
Floyd’s filing of his motion for postconviction relief in state district court on
June 21, 2010 did not toll the limitations period for the felon in possession of a
firearm conviction because the limitations period for that conviction had already
expired. See Painter v. Iowa, 247 F.3d 1255, 1256 (8th Cir. 2001) (holding “the time
between the date that direct review of a conviction is completed and the date that an
application for state post-conviction relief is filed counts against the one-year
period”). Thus, absent an equitable exception, any claims related to Floyd’s felon in
possession of a firearm conviction or sentence are barred by the statute of
limitations.6

6

Floyd disputes that his Petition is untimely with respect to his conviction for
felon in possession of a firearm, arguing that “[c]learly, the weapon conviction is
connected to the murder charges.” (Filing No. 186 at CM/ECF p. 4.) Although Floyd
was convicted of all three charges in the first trial, on direct appeal, the felon in
possession of a firearm conviction was affirmed while the murder and manslaughter
convictions were vacated and remanded for retrial. Thus, the judgment of conviction
for felon in possession of a firearm stood unreversed and unvacated after the first
appeal. Accordingly, two limitations are at work—the limitations period for the
murder and manslaughter convictions and the limitations period for the felon in
14

To the extent Floyd asserts that the statute of limitations for his felon in
possession of a firearm conviction should be tolled because the failure to file a timely
habeas petition challenging that conviction was a result of his counsel’s
incompetence, the court disagrees. (Filing No. 186 at CM/ECF p. 4 (stating that
appellate counsel’s failure to “correctly advise and represent petitioner constitute[s]
cause for not appeal[ing] or exhausting [the weapon conviction]”).) “A ‘petitioner’
is ‘entitled to equitable tolling’ only if he shows ‘(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way’ and
prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Equitable tolling is proper “only
when extraordinary circumstances beyond a prisoner’s control make it impossible to
file a petition on time.” Runyan v. Burt, 521 F.3d 942, 945 (8th Cir. 2008) (internal
quotation omitted). As such, “equitable tolling is an exceedingly narrow window of
relief.” Id. (internal quotation omitted). Case law has been clear that attorney
mistakes, such as the failure to file a timely petition, are “simply not sufficient to
warrant equitable tolling.” Holland, 560 U.S. at 656; see also Maples v. Thomas,
565 U.S. 281 (2012) (“Thus, when a petitioner’s postconviction attorney misses a
filing deadline, the petitioner is bound by the oversight and cannot rely on it to
establish cause. We do not disturb that general rule.”); Lawrence v. Florida, 549
U.S. 327, 336-37 (2007) (“Attorney miscalculation is simply not sufficient to
warrant equitable tolling, particularly in the postconviction context where prisoners
have no constitutional right to counsel.”); Irwin v. Dep’t of Veterans Affairs, 498
U.S. 89, 96 (1990) ( “[T]he principles of equitable tolling . . . do not extend to what
is at best a garden variety claim of excusable neglect.”); Beery v. Ault, 312 F.3d 948,
951 (8th Cir. 2002) ( “Ineffective assistance of counsel generally does not warrant
equitable tolling.”).

possession of a firearm conviction. Stated differently, the limitations period for the
murder and manslaughter convictions cannot be used to establish the limitations
period for the felon in possession of a firearm conviction.
15

Furthermore, to the extent Floyd looks to Martinez v. Ryan, 566 U.S. 1 (2012),
to support any argument that counsel’s incompetence was an “extraordinary
circumstance” that justifies equitable tolling, his reliance is misplaced. While
Martinez changed the law regarding federal habeas review of procedurally defaulted
claims, there has been no indication that the Supreme Court intended its procedural
default analysis to apply to the statute of limitations, and courts have not extended
the reasoning in Martinez to excuse untimely petitions. “Stated another way, the lack
or ineffectiveness of counsel during postconviction collateral proceedings is not an
‘extraordinary circumstance’ that warrants equitable tolling of the statute of
limitations in § 2254 habeas actions.” Alvarado v. Hansen, No. 8:17CV283, 2018
WL 4006768, at *8 (D. Neb. Aug. 22, 2018), reconsideration denied, No.
8:17CV283, 2018 WL 4401732 (D. Neb. Sept. 14, 2018), certificate of appealability
denied, No. 18-3108, 2019 WL 1467007 (8th Cir. Jan. 22, 2019); see also Lombardo
v. United States, 860 F.3d 547, 555-61 (7th Cir. 2017) (court declined to recognize
Martinez’s framework as a means of establishing extraordinary circumstances for
the purposes of equitable tolling); Arthur v. Thomas, 739 F.3d 611, 631 (11th Cir.
2014) (holding that the Martinez rule does not apply to the one-year limitations
period in § 2254 cases or any potential tolling of that period); Parkhurst v. Wilson,
525 Fed. App’x 736, 738 (10th Cir. 2013) (Martinez does not provide a basis for
equitable tolling); Smith v. Hobbs, 2014 WL 2718698, at *2 (E.D. Ark. May 15,
2014) (Martinez holding is not an extraordinary circumstance that would justify
equitable tolling; “[w]hether a claim is procedurally defaulted is a completely
distinct question from whether it is barred by the . . . statute of limitations”).
Thus, Floyd has failed to demonstrate that an “extraordinary circumstance”
prevented timely filing of a habeas petition related to his conviction for felon in
possession of a firearm. Floyd has also failed to establish, or even argue, that he was
pursuing his rights diligently with respect to that conviction. Because Floyd provides
no basis for extending the limitations period for his felon in possession of a firearm
conviction, he is not entitled to any equitable tolling with respect to that conviction.
16

Accordingly, the court will not address any claims in the Petition that are related to
Floyd’s felon in possession of a firearm conviction.
The court will now turn to the claims in the Petition that relate to Floyd’s
convictions for first degree murder and manslaughter of an unborn child.
IV. OVERVIEW OF APPLICABLE LAW
Various strands of federal habeas law intertwine in this case. They are (1)
exhaustion and procedural default; (2) the deference that is owed to the state courts
when a federal court reviews the factual or legal conclusions set forth in an opinion
of a state court; and (3) the standard for evaluating a claim of ineffective assistance
of counsel. The court elaborates upon those concepts next so that it may apply them
later in a summary fashion as it reviews Floyd’s claims.
A. Exhaustion and Procedural Default
As set forth in 28 U.S.C. § 2254:
(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) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to
protect the rights of the applicant.
28 U.S.C. § 2254(b)(1).

17

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 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 present the substance of each federal
constitutional claim to the state courts before seeking federal habeas corpus relief.
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 order to fairly present a federal claim to the state courts, the 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) (internal citation and quotation
omitted). Although the language need not be identical, “[p]resenting a claim that is
merely similar to the federal habeas claim is not sufficient to satisfy the fairly
presented requirement.” Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir. 1999). In
contrast, “[a] claim has been fairly presented when a petitioner has properly raised
the ‘same factual grounds and legal theories’ in the state courts which he is
attempting to raise in his federal habeas petition.” Wemark v. Iowa, 322 F.3d 1018,
1021 (8th Cir. 2003) (citation omitted).
18

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)).
To be precise, a federal habeas court may not review a state prisoner’s federal
claims if those claims were defaulted in state court pursuant to an independent and
adequate state procedural rule “unless the prisoner can demonstrate cause for the
default and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). Also, a
credible showing of actual innocence may allow a prisoner to pursue his
constitutional claims on the merits notwithstanding the existence of a procedural bar
to relief. McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). To invoke the actual
innocence exception, a petitioner “must show that in light of all the evidence, ‘it is
more likely than not that no reasonable juror would have found petitioner guilty
beyond a reasonable doubt.’” Jennings v. United States, 696 F.3d 759, 764-65 (8th
Cir. 2012) (quoting Schlup v. Delo, 513 U.S. 298, 327, (1995)). “‘[A]ctual
innocence’ means factual innocence, not mere legal insufficiency.” Id. (quoting
Bousley v. United States, 523 U.S. 614, 623 (1998)).
B. Nebraska Law Relevant to Procedural Default
Under Nebraska law, you don’t get two bites of the postconviction apple; that
is, “[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
19

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). See also
State v. Thorpe, 858 N.W.2d 880, 887 (Neb. 2015) (“A motion for postconviction
relief cannot be used to secure review of issues which were or could have been
litigated on direct appeal, no matter how those issues may be phrased or rephrased.”)
Moreover, a person seeking post-conviction relief must present his or her
claim to the district court or the Nebraska appellate courts will not consider the claim
on appeal. State v. Deckard, 722 N.W.2d 55, 63 (Neb. 2006) (denying
postconviction relief in a murder case and stating: “An appellate court will not
consider as an assignment of error a question not presented to the district court for
disposition through a defendant’s motion for postconviction relief.”) Similarly, on
appeal, the appealing party must both assign the specific error and specifically argue
that error in the brief. Otherwise the claim is defaulted under Nebraska law. State v.
Henry, 875 N.W.2d 374, 407 (Neb. 2016) (stating an alleged error must be both
specifically assigned and specifically argued in the brief of the party asserting the
error to be considered by an appellate court).
Additionally, Nebraska has a statute of limitations for bringing postconviction
actions that is similar to federal law. It reads:
(4) A one-year period of limitation shall apply to the filing of a verified
motion for postconviction relief. The one-year limitation period shall
run from the later of:
(a) The date the judgment of conviction became final by
the conclusion of a direct appeal or the expiration of the
time for filing a direct appeal;
(b) The date on which the factual predicate of the
constitutional claim or claims alleged could have been
discovered through the exercise of due diligence;
20

(c) The date on which an impediment created by state
action, in violation of the Constitution of the United States
or the Constitution of Nebraska or any law of this state, is
removed, if the prisoner was prevented from filing a
verified motion by such state action;
(d) The date on which a constitutional claim asserted was
initially recognized by the Supreme Court of the United
States or the Nebraska Supreme Court, if the newly
recognized right has been made applicable retroactively to
cases on postconviction collateral review; or
(e) August 27, 2011.
Neb. Rev. Stat. § 29-3001(4) (West).
C. Deferential 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. Id. at 405-06.
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).

21

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
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, 562 U.S. 86, 102 (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.
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 [Antiterrorism and Effective Death Penalty Act] 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
22

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 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.
D. The Especially Deferential Strickland Standard
When a petitioner asserts an ineffective assistance of counsel claim, the twopronged standard of Strickland v. Washington, 466 U.S. 668 (1984), must be applied.
The standard is very hard for offenders to satisfy.
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. Further, as set forth in Strickland, counsel’s
“strategic choices made after thorough investigation of law and facts relevant to

23

plausible options are virtually unchallengeable” in a later habeas corpus action. Id.
at 690.
Additionally, the Supreme Court has emphasized that the deference due the
state courts applies with special 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 was 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).
Strickland applies equally to appellate counsel, and appellate counsel is
entitled to the “benefit of the doubt.” Woods v. Etherton, 136 S. Ct. 1149, 1153
(2016) (a “fairminded jurist” could have concluded that repetition of anonymous tip
in state-court cocaine-possession trial did not establish that the uncontested facts it
conveyed were submitted for their truth, in violation of the Confrontation Clause, or
that petitioner was prejudiced by its admission into evidence, precluding federal
habeas relief under AEDPA; petitioner could not establish that petitioner’s appellate
counsel was ineffective, as appellate counsel was entitled to the “benefit of the
doubt”).

24

V. DISCUSSION
A. Claim One
Claim One consists of thirty-nine subparts alleging ineffective assistance of
trial counsel. As a general matter, the court observes that the state district court and
the Nebraska Supreme Court properly set forth the Strickland standards before
addressing Floyd’s ineffective assistance of counsel claims. (Filing No. 10-6 at
CM/ECF at pp. 102-03; Filing No. 109-1 at CM/ECF pp. 6-8.)
1. Failure to Investigate
Floyd raises multiple failure to investigate claims. (See, e.g., Claim One,
Subparts (1),7 (4), (6), (7), (8), (11), (19), (25), and (28).) As best the court can tell,
the majority of these claims correspond to Floyd’s state court postconviction
arguments that trial counsel failed to properly investigate certain facts and witnesses,
which would have established that Vickers did not positively identify, and could not
have positively identified, Floyd as the shooter and that a person other than Floyd
had committed the crimes.
In its order affirming the state district court’s denial of postconviction relief,
the Nebraska Supreme Court addressed the failure to investigate claims as follows:
FAILURE TO PROPERLY INVESTIGATE FACTS AND WITNESSES

First, Floyd contends that his trial counsel failed to properly investigate
certain facts and witnesses. He alleges he was prejudiced in two ways:
(1) certain facts and witnesses would have established that Vickers did
not and could not have positively identified Floyd as the shooter, and
7

claim.

This claim is also discussed below in the context of a failure to subpoena
25

(2) certain discoverable evidence would have led the jury to believe that
a person other than Floyd had committed the crimes.
A defense attorney has a duty to make reasonable investigations or to
make a reasonable decision that makes particular investigations
unnecessary. Counsel is not expected to pursue avenues of investigation
unless there is some basis to believe it might reveal some evidence of
information which would assist in the defense. Because the district
court did not hold an evidentiary hearing, we cannot, from the record,
determine if trial counsel did in fact investigate these allegations or if
his decision to not investigate was reasonable. We can, however,
address whether Floyd was prejudiced by these alleged failures to
investigate.
To establish prejudice under an ineffective assistance claim, a
defendant must specify the nature of the exculpatory evidence that he
contends his counsel failed to discover. This evidence must overcome
the compelling evidence that substantiates a defendant’s guilt as found
in the record. We will now address each failure to investigate claim.
(a)

Other Suspects

Floyd argues that his trial counsel failed to properly investigate the prior
instances of Davis being a victim of assault, vandalism, and domestic
abuse from her ex-boyfriend, indicating that the ex-boyfriend could
have been the perpetrator. Floyd also argues that his trial counsel should
have investigated witnesses who would have testified that three men
were seeking retribution against Davis’ incarcerated brother. He alleges
that this would have strengthened his theory that Davis was the targeted
victim and weakened the State’s theory that Davis was the unintended
victim of Floyd’s attempt to shoot Vickers.
Floyd fails to properly plead prejudice on these purported investigatory
failures. He repeatedly states that the evidence would have refuted the
prosecution’s theory of intent and that investigation “may” have
discovered the true suspect. But Floyd fails to indicate what exculpatory
evidence would have been discovered by his trial counsel. Rather, he is
26

essentially arguing that his trial counsel should have gone on a larger
fishing expedition for evidence of other pretrial suspects.
Additionally, the record demonstrates that the jury was presented with
evidence and argument that someone other than Floyd had the motive
and intent to commit these crimes. Defense counsel adduced evidence
suggesting that there existed other suspects. In his closing argument,
Floyd’s trial counsel argues that “it’s not absurd to believe that the
shooter may have hit the target for whom he or she was aiming.”
The jury was thus aware of Floyd’s theory and there is no allegation
explaining how further investigation would have discovered
exculpatory evidence. Therefore, his conclusory allegations of
ineffective assistance of counsel in this regard are insufficient on their
face to afford a basis for postconviction relief.
(b) The Bullets
Floyd argues that counsel was ineffective for failing to compare the
bullets removed from Davis and the other victims. He alleges that it
may have established multiple perpetrators. This apparently would add
further credence to his theory that a gang of three men, seeking
retribution, committed the crimes.
Floyd fails to sufficiently plead what exculpatory evidence that his
suggested investigation would have produced. He described no
evidence that would have indicated there were multiple guns involved.
Even if we were to assume there were different bullets, he does not
explain how such evidence is exculpatory. Such evidence does not
prove that Floyd was not the shooter—either with multiple guns or with
accomplices. Floyd has failed to properly plead prejudice in the alleged
failure to investigate the bullets.
(c) Vickers’ Ability to See out the Bathroom Window
Floyd argues that counsel failed to investigate whether Vickers could
have identified Floyd from the bathroom window. He argues that
counsel should have investigated the angle of bullets shot, the gun
27

powder residue, and the expansion of the fired bullet to determine
where the shooter was standing. Floyd alleges that this may have
proven that Vickers could not have physically been able to see the
shooter and could not have positively identified Floyd as the shooter.
The record affirmatively establishes that Floyd was not prejudiced by
this alleged failure to investigate because any “discovered” evidence
would have been cumulative to the evidence produced at trial. Trial
counsel during the cross examination of Vickers spent a lot of time
questioning her ability to see out the window. He questioned her on
vehicles parked in the driveway which may have blocked her view. He
elicited that pictures taken during the crime investigation show the
mini-blinds on the bathroom window were closed.
During a video deposition played for the jury by defense counsel,
Wayne Melcher, an Omaha Police Officer involved in the investigation,
testified that he and another detective could not see out the window as
described by Vickers. Specifically, with each looking out the window
in broad daylight, they could not see the officer standing in the spot
Vickers testified that Floyd was standing.
Therefore, it was well established at trial that Vickers may not have
been able to see the shooter. The discoverable evidence suggested by
Floyd—but not specifically described in the motion—would not have
changed the outcome. It would have merely reiterated already
established evidence. This claim has no merit.
(d)

Forensic Pathology

Floyd argues that “[t]rial counsel knew that the State’s forensic
pathology expert prepared a[n] autopsy report, but did not request for
independent forensic pathology expert to reput [sic] the State’s forensic
pathology expert testimony.” Floyd also complains that trial counsel
did not investigate the expert testimony. Floyd does not allege how he
was prejudiced and does not specify in any manner what type of
exculpatory evidence would have been discovered. Floyd has failed to
28

properly allege any prejudice for the alleged failure to hire an
independent forensic pathology expert.
(Filing No. 109-1 at CM/ECF pp. 9-14 (footnotes omitted).)
For those failure to investigate subparts of Claim One that correspond to the
postconviction claims discussed above, Floyd has not established that the Nebraska
Supreme Court’s denial of relief on his failure to investigate claims resulted in an
unreasonable application of law or was based on an unreasonable determination of
the facts. Floyd does not allege that the Nebraska Supreme Court erred in its findings
that: (1) the jury was presented with evidence and argument that someone other than
Floyd had the motive and intent to commit these crimes, and thus, trial counsel
adduced evidence suggesting that there existed other suspects; and (2) it was well
established at trial that Vickers may not have been able to see the shooter. The
Nebraska Supreme Court disposed of these arguments by concluding that Floyd had
not been prejudiced by any alleged deficiency in his trial counsel’s failure to
investigate certain facts and witnesses; that is to say, the court directly applied the
second prong of the United States Supreme Court’s well-established standard in
Strickland, 466 U.S. at 687. To establish prejudice under Strickland, “[t]he defendant
must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at
694. Floyd cannot establish prejudice where the evidence he insists would have been
discovered had counsel adequately investigated is merely cumulative. See Wong v.
Belmontes, 558 U.S. 15, 22-23 (2009). Because the Nebraska Supreme Court’s
finding of no prejudice is reasonable and is consistent with the Strickland test, Floyd
is not entitled to any federal habeas relief on his failure to investigate claims set forth
in Claim One.
For any failure to investigate subparts of Claim One that were raised in the
postconviction proceedings but do not correspond to any of the claims specifically
addressed by the Nebraska Supreme Court above, the court finds that Floyd has
29

failed to establish that he is entitled to habeas relief. Floyd has failed to explain how
any further investigations would have changed the outcome of the trial. The jury was
aware of Floyd’s alternative suspect theory and that Vickers may not have been able
to see the shooter. Any additional evidence attacking Vickers’ credibility or
indicating alternative suspects would have been cumulative and would not have
changed the outcome. See Wong, 558 U.S. at 22-23. Notably, the state district court8
summarily rejected all the failure to investigate claims for similar reasons:
Without going into each allegation, the Defendant here simply relies on
conclusory statements, recitations of the record or portions of police
reports. Defendant fails to set forth what exculpatory evidence would
have been discovered that could have changed the outcome of the trial
or that he told counsel about these avenues of investigation. These
allegations are insufficient to warrant an evidentiary hearing.
Furthermore, the record refutes the majority of these allegations when
considering the cross-examination by defense counsel and the evidence
produced by the State.
(Filing No. 10-6 at CM/ECF p. 106.)9 Floyd has failed to rebut, by clear and
convincing evidence, the Nebraska state district court’s findings of fact on this issue,

8

The state district court’s 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. See Federal Habeas Manual § 3:21 (“The
deference afforded by § 2254(d)(1) is not limited to adjudications by the state’s
highest court, but includes adjudications by state intermediate appellate and trial
courts.” (citing cases)); Federal Habeas Manual § 3:25 (“And where successive state
court decisions decided separate issues, such as the separate prongs of a Strickland
inquiry, each individual state court decision constitutes a merits adjudication entitled
to § 2254(d) deference.” (citing cases)).
9

The state district court recited a portion of the opinion in State v. Soukharith,
260 Neb. 478, 618 N.W.2d 409 (2000), where the defendant similarly made several
claims regarding his counsel’s failure to investigate several issues, which were all
rejected by the Nebraska Supreme Court. (Filing No. 10-6 at CM/ECF pp. 104-05.)
30

nor did he make any effort to do so. The court finds that the Nebraska state district
court reasonably applied Strickland in concluding that Floyd had not demonstrated
prejudice from trial counsel’s alleged failure to investigate certain facts and
witnesses.
2. Failure to Subpoena Witnesses
Floyd also raises several claims that trial counsel was ineffective for failing to
interview, subpoena, or call certain witnesses to testify (see, e.g., Claim One,
Subparts (1), (2), (3), (5), and (20)). The court will set forth the state court decisions
for each subpart separately and then address the merits of all the subparts
collectively.
i. Claim One, Subpart (1)
In Claim One, Subpart (1), Floyd contends that trial counsel was ineffective
for failing to investigate Carrissa Flanagan, Maurice Thomas, and men hired to
retaliate against Maurice Davis and his family as possible suspects and for failing to
introduce that evidence at trial. (Filing No. 127 at CM/ECF pp. 17, 18-19, 33, 3435.) In addition to stating a failure to investigate claim, the court construes this claim
as corresponding to Floyd’s postconviction claim that trial counsel was ineffective
for failing to subpoena Carrissa Flanagan and Maurice Thomas. Both the state
district court and the Nebraska Supreme Court rejected this claim. The state district
court wrote:

To avoid adding to this lengthy Memorandum and Order, the court has omitted this
recitation.
31

Carrissa Flanagain10 and Maurice Thomas – Defendant claims counsel
was ineffective in failing to subpoena these two individuals as
witnesses, because they were the two main suspects initially after the
murder. First, Defendant fails to state what either of these witnesses
would testify about if called to the stand. Also, the record refutes either
witness would have changed the outcome of the trial since they did not
match the description of the shooter. (BOE 1370:1-1371:22).
Additionally, counsel cross-examined Detective Perna, Shantelle
Vickers, and Shaquille Davis about the information as to why Flanagain
and Thomas were initially suspects in this case.
(Filing No. 10-6 at CM/ECF p. 108.) The Nebraska Supreme Court similarly ruled:
Floyd alleges that Carrissa Flanagain and Maurice Thomas should have
been called to testify because both were initial suspects. Thomas, the
“ex-boyfriend,” was the father of Davis’ children and Carrissa was his
new girlfriend. Floyd believes that if they had been called as witnesses
that they may have incriminated themselves by establishing that they
had a motive to kill Davis.
Floyd fails to specify what exculpatory testimony would have been
elicited from these witnesses during trial. Floyd does not even specify
what questions would have been asked during the direct examination of
these witnesses. It seems improbable that either would have
incriminated themselves. Further, testimony about why they were
initial suspects during the investigation was explored during the cross
examinations of Detective Christopher Perna, Vickers, and Shaquille
Davis. Therefore, Floyd has failed to plead sufficient facts that
demonstrate the outcome of the trial would have been different if these
witnesses had been called.
(Filing No. 109-1 at CM/ECF pp. 16-17.)

10

The Nebraska state courts spelled “Flanagan” as “Flanagain.” Throughout
this Memorandum and Order the court will use “Flanagan.”
32

ii. Claim One, Subpart (2)
In Claim One, Subpart (2), Floyd argues that trial counsel was ineffective
because he failed to interview Becky Breyman, Felicia Williams, and Coney
Stephens. (Filing No. 127 at CM/ECF p. 18.) He asserts that these witnesses would
have revealed information that Destiny Davis “was the victim of numerous assaults
and vandalism” and established “a pattern of domestic violence” involving Davis,
including a “large, knock-down, drag-out fight two weeks prior to the shooting.”
(Id.) According to Floyd, this information would have revealed alternative suspects,
including Carrissa Flanagan and Maurice Thomas. (Id.)
Respondents submit that this is essentially the same claim that Floyd raised in
his postconviction appeal; namely, that Breyman, Stephens, and Williams should
have been called to testify to arguing heard in Davis’ apartment prior to the murder
because it strengthened his theory that someone else killed Davis. (Filing No. 144 at
CM/ECF p. 21 (citing Filing No. 109-1 at CM/ECF p. 18).) Both the state district
court and the Nebraska Supreme Court rejected this claim. The state district court
found as follows:
Becky Breyman, Coney Stephens, and Felicia Williams – Defendant
asserts counsel was ineffective in not calling these witnesses to testify
that they had heard arguments in the victim’s apartment prior to the
murder. Defendant does not state facts to establish when these
arguments took place, who was arguing or what was being said in the
arguments, which is insufficient to warrant an evidentiary hearing. See
Davlin, supra (finding insufficient facts for an evidentiary hearing
when the defendant failed to state what exculpatory testimony the
witnesses would have provided had counsel called them to the stand).
The majority of allegations surrounding these witnesses are that
counsel was ineffective in failing to subpoena them to testify about an
inability to see out the bathroom window or potential suspects. In
considering these allegations as a whole, the Court should consider
33

Harrington v. Richter, 131 S. Ct. 770 (2011), wherein the defendant
argued in a postconviction that his counsel was ineffective in failing to
consult with blood experts to create a trial strategy and offer their
testimony in support of his defense. In rejecting the claim, the court
noted that counsel is “entitled to formulate a strategy that was
reasonable at the time and to balance limited resources in accord with
effective trial tactics and strategies.” Id. The court further explained that
pursuing certain investigations could often work against a defendant,
so a court should consider that an “attorney need not pursue an
investigation that would be fruitless, much less one that might be
harmful to the defense” and that to “support a defense argument that
the prosecution has not proved its case it sometimes is better to try to
cast pervasive suspicion of doubt than to prove a certainty that
exonerates.” Id. A review of the record supports a finding that counsel
effectively created suspicion through cross-examination and argument
and that bringing some of the witnesses that Defendant now requests
could have limited that argument or actually assisted in further
establishing Defendant’s guilt.
(Filing No. 10-6 at CM/ECF pp. 109-10.)
In its order affirming the state district court’s denial of postconviction relief,
the Nebraska Supreme Court considered and rejected this argument. The court
wrote:
Having three witnesses testify to hearing arguments coming from
Davis’ apartment would not have changed the outcome of this case. As
already established, the jury was aware that there were other possible
suspects. Floyd has once again failed to demonstrate how this testimony
would have revealed exculpatory evidence that would have changed the
outcome of this case.
(Filing No. 109-1 at CM/ECF p. 18.)

34

iii. Claim One, Subpart (3)
In Claim One, Subpart (3), Floyd argues that trial counsel was ineffective
because he failed to subpoena Traeshawn Davis to testify at trial, or alternatively,
introduce his prior trial testimony. (Filing No. 127 at CM/ECF pp. 20, 33.)
Both the state district court and the Nebraska Supreme Court considered
Floyd’s claim that trial counsel was ineffective for failing to subpoena Traeshawn to
testify at trial. The state district court rejected the claim, finding: “The record reflects
that counsel acted reasonable [sic] and attempted to subpoena this witness, but was
unsuccessful. (BOE 1524:6-1529:24). Thus, the record refutes counsel was
ineffective. See Davlin, 277 Neb. at 983 (finding counsel not ineffective when
subpoenas were issued, but not successfully served [on] the witness).” (Filing No.
10-6 at CM/ECF pp. 107-08.) The Nebraska Supreme Court also rejected the claim.
The court wrote:
Floyd alleges that Traeshawn Davis, who was seven when he was shot
at the same time Destiny Davis was shot, should have been called as a
witness at the second trial. According to Floyd, Traeshawn would have
testified to there being three masked men outside with guns, as
Traeshawn stated in the police report. Floyd believes that this evidence
would have substantiated his defense theory. We disagree for two
reasons. First, the record indicates that trial counsel was not ineffective
because trial counsel did in fact attempt to subpoena this witness.
Second, the record affirmatively establishes that Floyd was not
prejudiced.
In State v. Davlin, we held that failing to get a witness to testify was not
deficient performance if the trial counsel acted reasonably in his
attempt to subpoena a witness. The record demonstrates that trial
counsel acted reasonably in getting Traeshawn to testify. At trial, trial
counsel called Bob Fields to testify. Fields was an investigator for the
Public Defender’s Office. He testified that he worked with the
prosecutor’s office to find Traeshawn and could not do so. This
included an attempt to track him down at his last known address.
35

Additionally, there was no prejudice in Traeshawn’s failure to testify
because there is no reason to believe Traeshawn would have testified
that he saw three masked men. In fact, during the 2005 trial, Traeshawn
testified that he did not see three masked men and denied ever telling
the officers that he did see three men. Therefore, Floyd was not
prejudiced by Traeshawn not testifying.
(Filing No. 109-1 at CM/ECF pp. 15-16 (footnotes omitted).)11
iv. Claim One, Subpart (5)
In Claim One, Subpart (5), Floyd argues that trial counsel was ineffective
because he failed to interview Steven Lindsey (Shantelle Vickers’ father) and
subpoena him to testify at trial. (Filing No. 127 at CM/ECF pp. 22, 33.) Floyd asserts
that Lindsey would have testified that Vickers could not have seen the shooter out
of the window. (Id.) Both the state district court and the Nebraska Court of Appeals
considered this issue. The state district court ruled:
Defendant asserts Lindsey would have been called to testify that
Shantelle Vickers could not have seen the shooter out of the window.
First, such testimony would be speculative, as Lindsey was not in the
bathroom during the shooting and thus, inadmissible. Further, counsel
cross-examined Shantelle Vickers and officers at great length to cast

11

The court notes that, although the Nebraska state courts did not explicitly
address Floyd’s argument that trial counsel failed to introduce Traeshawn’s prior
trial testimony, the Nebraska Supreme Court found that, during the first trial,
Traeshawn testified that he did not see three masked men and denied ever telling the
officers that he did see three men. As such, it is unclear how Traeshawn’s prior trial
testimony would have assisted Floyd’s defense and changed the outcome of this
case.
36

doubt on whether someone could see out of the bathroom window at
night.
(Filing No. 106 at CM/ECF p. 108.) The Nebraska Supreme Court also rejected the
claim as follows:
Floyd believes that Steven Lindsey should have been called to testify
that he believed that Vickers could not have seen the shooter from the
bathroom window. As already discussed, this testimony would be
speculative and would be cumulative to the evidence presented at trial.
Floyd cannot demonstrate that this alleged failure prejudiced him.
(Filing No. 109-1 at CM/ECF p. 16.)
v. Claim One, Subpart (20)
In Claim One, Subpart (20), Floyd argues that trial counsel was ineffective
because he failed to subpoena Officer Allen Wagner to testify at trial. (Id. at
CM/ECF p. 36.) Floyd alleges that Officer Wagner “would have testified that
Shantelle Vickers ‘never saw Floyd at the scene.’” (Id. at CM/ECF pp. 36-37.) Both
the state district court and the Nebraska Supreme Court adjudicated and rejected this
argument on the merits and did so under the prejudice-prong Strickland standard.
The state district court determined that the testimony Floyd “asserts would be
adduced through this witness would be cumulative, as it came in through other
witnesses such as another first responding officer, Jeff Warnock. (BOE 780:20815:8). Wong v. Belmontes, 130 S. Ct. 383 (2009) (noting a defendant does not suffer
prejudice when the evidence is merely cumulative).” (Filing No. 10-6 at CM/ECF p.
107.) The Nebraska Supreme Court similarly wrote:
Floyd contends that Officer Allen Wagner should have been called as a
witness. Floyd argues that in the first trial Wagner testified that Vickers
told him that she never saw Floyd at the scene. Floyd asserts that
defense counsel should have called Wagner again at Floyd’s second
37

trial. According to Floyd, defense counsel’s failure to do so prejudiced
his defense.
This evidence would have been cumulative with the testimony provided
by Officer Jeff Warnock. Warnock admitted that Vickers never told him
that she had seen the shooter. Additionally, Melcher testified that it was
physically impossible to see the shooter, as described by Vickers, from
the window. Therefore, Floyd cannot establish that he was prejudiced
by the exclusion of this evidence.
(Filing No. 109-1 at CM/ECF pp. 14-15.)
vi. Analysis
Floyd did not rebut, by clear and convincing evidence, the Nebraska state
courts’ findings that: (1) the jury was aware of the alternative suspect theory; and
(2) the jury was presented with evidence that cast doubt on Vickers’ ability to see
the shooter out of the bathroom window. Floyd has failed to specify what
exculpatory testimony any of these witnesses would have provided or that their
testimony would have changed the outcome of the trial. Indeed, the testimony that
Floyd alleges these witnesses would have provided would have been cumulative of
the alternative suspect evidence and/or the evidence calling into doubt Vickers’
ability to see the shooter. See Wong, 558 U.S. at 22-23. The court finds that the
Nebraska state courts reasonably applied Strickland in concluding that Floyd had not
demonstrated prejudice from trial counsel’s failure to call these witnesses at trial.
Thus, Floyd has failed to establish that the Nebraska state courts’ decisions on these
claims were contrary to, or involved an unreasonable application of, clearly
established federal law, or involved an unreasonable determination of the facts in
light of the evidence. Claim One, Subparts (1), (2), (3), (5), and (20) have no merit,
and a grant of a writ of habeas corpus is not warranted on these issues.

38

3. Claim One, Subparts (14) and (15)
The court construes these claims as pertaining to the fair and impartial jury
claims that Floyd raised in the postconviction proceedings. The state district court
rejected these claims as follows:
Defendant asserts counsel was ineffective in failing to impanel a fair
and impartial jury. In doing so, Defendant argues several of the jurors
should have been struck for cause for numerous different reasons. In
the direct appeal from this very case, the Nebraska Supreme court noted
Neb. Rev. Stat. § 29-2006 in upholding this Court’s decision not to
strike potential jurors for exposure to a newspaper article, because that
sections [sic] requires a showing that a juror has “expressed an opinion
as to the guilt or innocence of the accused.” Again, as in the direct
appeal, Defendant has not alleged and there is no evidence to suggest
that any of the jurors cited by Defendant had ever formed an opinion
about his guilt or had made any statements that would qualify them to
be struck for cause pursuant to § 29-2006. Thus, any motion to strike
would have been overruled and counsel was not deficient. See State v.
McLeod, 274 Neb. 566, 741 N.W.2d 664 (2007) (“Defense counsel is
not ineffective for failing to raise an argument that has no merit[.”]).
(Filing No. 10-6 at CM/ECF pp. 110-11.)
The state district court further held that “[a]ll other allegations regarding the
jury are simply speculation and allegation that do not warrant any further discussion
other than to request they be dismissed without an evidentiary hearing.” (Id. at
CM/ECF p. 111 n.1.)
On appeal, the Nebraska Supreme Court also rejected the claims. The court
wrote:
Floyd argues that his counsel was ineffective for failing to impanel a
fair and impartial jury in four ways. First, Floyd argues that trial counsel
39

failed to ask appropriate questions during voir dire. Second, Floyd
alleges that trial counsel was ineffective for failing to use peremptory
strikes on jurors who were not removed for cause for seeing the
newspaper article. Third, Floyd alleges that trial counsel was
ineffective for failing to request a pretrial jury instruction that the jurors
avoid electronic media, such as twitter. Fourth, he alleges that
peremptory strikes should have been used on certain jurors for a variety
of reasons. We find that the record clearly demonstrates that none of
these errors prejudiced Floyd.
First, Floyd argues that counsel should have asked more questions
about the potential jurors’ stances on abortion because this case
involved the death of an unborn child. We reject this argument. Floyd
does not establish why trial counsel’s decision to not ask about abortion
is deficient. Further, Floyd provides no allegation that any of the jurors’
beliefs on abortion resulted in prejudice during his trial.
Second, Floyd argues that peremptory strikes should have been used on
the jurors who saw the newspaper article but were not struck for cause.
On the direct appeal, we held that “Floyd has failed to meet his burden
of showing that his right to a fair trial was prejudiced by the alleged
misconduct [allowing the two jurors who had been exposed to the
newspaper article to sit on the jury].” Likewise, we now find that Floyd
was not prejudiced by his trial counsel’s failure to remove these jurors
with a peremptory strike.
Third, Floyd argues that trial counsel did not specifically ask whether
jurors were exposed to tweets, blogs, or internet searches and failed to
request the court to add this language in the admonition. Floyd fails to
allege that a juror was exposed to outside information on his case via
these electronic means. Further, he fails to allege which juror was unfair
and biased because of exposure to electronic media. Therefore, Floyd
failed his burden to plead prejudice.
Fourth, Floyd outlines a variety of reasons why jurors should have been
struck for cause or been removed by a peremptory strike. We will
40

explain each of Floyd’s arguments against particular jurors and address
them all collectively.
Floyd argues that a peremptory strike should have been used on juror
L.S. for four different reasons. First, L.S. had been exposed to media
coverage on the murder of Davis prior to the trial. Second, L.S. had a
good friend in the Omaha Police Department. Third, L.S. had
previously sat on a jury for an unrelated murder trial. And fourth, L.S.
was used as a witness in an unrelated animal abuse case.
Floyd argues that juror R.C. should have been stricken for cause or
peremptorily struck because she had a friend killed by domestic
violence. Floyd alleges she was overly emotional. Likewise, he argues
that jurors B.H. and N.S. should have been peremptorily struck
because of their experiences with domestic violence.
Floyd also alleges that jurors R.J. #15, T.T., R.J. #30, and D.W. should
have been peremptorily struck because of varying relationships with
Omaha police officers. Likewise, he argues that jurors A.M. and N.S.
should have been peremptorily struck because of contacts with nonOmaha police officers. Floyd argues that juror T.T. should have been
struck because she was pregnant. Finally, he argues juror D.B. should
have been struck because he expressed that if a mother is shot and
killed, there should be “automatic guilt” for the murder of the unborn
child.
Although Floyd has presented reasons why it may have been a strategic
decision to strike the above jurors, he fails to provide any real evidence
that these jurors were unfairly biased against him. He does not cite any
case law that would require any of these jurors to be removed from the
jury. He does not allege extrinsic evidence that any of these alleged
biases resulted in the juror not being fair or impartial. In fact, our review
of the record indicates that each of these jurors stated that they could
set aside their biases for purposes of this trial. Absent more evidence,
Floyd has failed to properly plead prejudice.
(Filing No. 109-1 at CM/ECF pp. 20-23 (footnotes omitted).)
41

Again, Floyd does not rebut, by clear and convincing evidence, the Nebraska
state courts’ findings that any of the jurors were unfairly biased against him. The
Nebraska state courts’ findings of fact and conclusions of law are reasonable and
entitled to deference under the statutory standard of review that applies to factual
and legal conclusions reached by the state courts. In addition, Floyd has not argued,
much less established, that the state courts’ decisions were “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 courts
reached “a decision that was based on an unreasonable determination of the facts in
light of the evidence” 28 U.S.C. § 2254(d)(2).
4. Claim One, Subpart (17)
In Claim One, Subpart (17), Floyd claims that trial counsel was ineffective
because he prohibited Floyd from testifying. (Filing No. 127 at CM/ECF pp. 27, 32.)
The court construes this claim as corresponding to Floyd’s postconviction claim that
trial counsel was ineffective for advising Floyd not to take the stand. The state
district court and the Nebraska Supreme Court considered and rejected this
argument. Specifically, the state district court held as follows:
Defendant devotes two pages of this 160 page petition to his claim that
counsel was ineffective in advising him not to testify. Notably in the
allegations set forth by Defendant, he fails to state that he told counsel
he wished to testify or what counsel said when advising Defendant not
to testify. While not a formal advisory, this Court notes that counsel
stated on the record that Defendant “has the total, absolute, unfettered
right to testify or not testify. He can make that call.” (BOE 218:19-21).
Also, Defendant was a convicted felon at the time of trial and the
Nebraska Supreme Court has held that it is a reasonable trial strategy
to advise a client not to testify when he or she is a convicted felon. State
v. Journey, 207 Neb. 717 (1981). Further, a review of the facts
Defendant alleges he would have testified about at trial reveal the
testimony would have been cumulative to other evidence at trial or
42

would not have changed the outcome of the trial. In fact, Defendant
does not even claim he would have testified that he did not commit the
murder. These allegations are insufficient to warrant an evidentiary
hearing.
Helpful is the following from U.S. v. Webber, 208 F.3d 545, 551 (6th
Cir. 2000):
Although the ultimate decision whether to testify rests
with the defendant, when a tactical decision is made not to
have the defendant testify, the defendant’s assent is
presumed. Joelson, 7 F.3d at 177. This is so because the
defendant’s attorney is presumed to follow the
professional rules of conduct and is “strongly presumed to
have rendered adequate assistance” in carrying out the
general duty “to advocate the defendant’s cause and the
more particular duties to consult with the defendant
on important decisions and to keep the defendant informed
of important developments in the course of the
prosecution.” Strickland v. Washington, 466 U.S. 668,
688-90, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). Barring
any statements or actions from the defendant indicating
disagreement with counsel or the desire to testify, the trial
court is neither required to sua sponte address a silent
defendant and inquire whether the defendant knowingly
and intentionally waived the right to testify, nor ensure
that the defendant has waived the right on the record.
Joelson, 7 F.3d at 177.
Following the law set forth in Webber, the court in Hodge v. Haeberlin,
579 F.3d 627 (6th Cir. 2009) denied habeas corpus relief without an
evidentiary hearing:
A defendant is presumed to have waived his right to testify
unless the record contains evidence indicating otherwise.
United States v. Webber, 208 F.3d 545, 551 (6th Cir.
2000). A contrary rule would require courts to hold an
evidentiary hearing any time a defendant who did not
43

testify at trial filed an after-the-fact statement saying that
he wanted to testify but was prevented from doing so.
Therefore the state court’s refusal to hold an evidentiary
hearing cannot supply cause for Hodge’s failure to plead
this claim properly. Hodge also does not demonstrate
prejudice, because he does not show how his testimony
would have altered the outcome of his case.
(Filing No. 10-6 at CM/ECF pp. 112-13; see also Filing No. 11-11 at CM/ECF p.
35.)
Similarly, the Nebraska Supreme Court considered and rejected this claim in
its order affirming the state district court’s denial of postconviction relief. The court
wrote:
Floyd alleges that trial counsel was ineffective for advising him to not
testify. Floyd lists several things he would have testified to, including
his relationship with Vickers and Davis, that he was asked by three men
in a black SUV with Missouri license plates where Thomas (although
it is unclear if Floyd actually means Davis’ incarcerated brother instead
of Thomas) was the day before the shooting, that Thomas was likely
targeted, and he would have testified to his alibi. Importantly, Floyd
does not state that he would have testified to his own innocence.
Defense counsel’s advice to waive the right to testify can present a valid
claim of ineffective assistance in two instances: (1) if the defendant
shows that counsel interfered with his or her freedom to decide to testify
or (2) if counsel’s tactical advice to waive the right was unreasonable.
Floyd does not plead that he was told to not testify by counsel and does
not allege facts that demonstrate that he in fact wanted to testify at the
time of trial. Further, Floyd does not explain why the strategic decision
to not have Floyd testify was unreasonable. Therefore, Floyd has failed
to properly plead a valid claim for ineffective assistance of counsel.

44

Additionally, Floyd fails to plead how his testimony would have
changed the outcome of the case. The only possible exculpatory
evidence he would have testified to was his alibi. But his alibi had
already been elicited by the examination of Ruth Buie and he does not
establish how his testimony would have strengthened his alibi. From
our review of the record, it is clear that his proposed testimony would
not have altered the outcome of his case.
(Filing No. 109-1 at CM/ECF pp. 28-29 (footnote omitted).)
An accused has a federal constitutional right to testify on his own behalf at his
criminal trial. Rock v. Arkansas, 483 U.S. 44, 51-53 (1987). “Because the right to
testify is a fundamental constitutional guarantee, only the defendant is empowered
to waive the right” and that waiver must be made voluntarily and knowingly. United
States v. Bernloehr, 833 F.2d 749, 751 (8th Cir. 1987); accord United States v. Ward,
598 F.3d 1054, 1059 (8th Cir. 2010). A defendant’s waiver of this right must be
made knowingly and voluntarily. Bernloehr, 833 F.2d at 751. The Eighth Circuit
Court of Appeals has held that a knowing and voluntary waiver of the right may be
found based on a defendant’s silence when his counsel rests without calling him to
testify. Id. at 751-52. The Eighth Circuit stressed that under such circumstances the
defendant must act “affirmatively” rather than apparently “acquiesc[ing] in his
counsel’s advice that he not testify, and then later claim[ing] that his will to testify
was overcome.” Id. (internal quotation omitted).
A trial counsel’s advice to the defendant to waive the right to testify can
present a valid claim of ineffective assistance if the defendant shows that counsel
interfered with his or her freedom to decide to testify or if counsel’s tactical advice
to waive the right was unreasonable. See United States v. Teague, 953 F.2d 1525,
1534-35 (11th Cir. 1992) (citing Strickland, 466 U.S. at 687-88).
Where a state court’s findings of the attorney’s advice regarding the right to
testify and of the acceptance of counsel’s advice are clearly supported by the record,
45

a federal habeas court should “not second guess them.” Frey v. Schuetzle, 151 F.3d
893, 898 (8th Cir. 1998) (pre-AEDPA federal habeas proceeding). Eighth Circuit
case law supports a conclusion that an attorney’s advice that a defendant should not
testify due to prior convictions is not ineffective assistance of counsel. Johnson v.
Lockhart, 921 F.2d 796, 800 (8th Cir. 1990) (due to an attorney’s discretion to advise
a client whether he should testify on his behalf, attorney’s advice not to testify due,
in part, to prior convictions may “at worst be called bad trial strategy, not
constitutionally deficient legal performance”); Drake v. Wyrick, 640 F.2d 912, 915
(8th Cir. 1981) (trial attorney’s advice that the defendant should not testify due, in
part, to prior convictions was a matter of trial strategy and not a ground for finding
ineffective assistance).
Here, Floyd does not rebut, by clear and convincing evidence, the Nebraska
state courts’ findings that: trial counsel did not interfere with Floyd’s freedom to
decide to testify; trial counsel’s tactical advice to waive that right was reasonable;
and Floyd failed to establish that his testimony would have changed the outcome of
the case. The Nebraska state courts’ findings of fact and conclusions of law are
reasonable and entitled to deference. In addition, Floyd has not argued, much less
established, that the state courts’ decisions were “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 courts
reached “a decision that was based on an unreasonable determination of the facts in
light of the evidence” 28 U.S.C. § 2254(d)(2). Hence, this claim is denied.
5. Claim One, Subpart (18)
In Claim One, Subpart (18), Floyd argues that trial counsel was ineffective
because he failed to subpoena Shantelle Vickers’ medical records to impeach her
testimony at trial about Floyd’s acts of domestic violence against her. (Filing No.
127 at CM/ECF p. 35.) Both the state district court and the Nebraska Supreme Court
46

adjudicated and rejected this argument on the merits and did so under the two-prong
Strickland standard. The state district court stated:
Defendant alleges counsel was ineffective in failing to obtain medical
records by having a medical release waiver signed by Shantelle Vickers
or by subpoenaing records from Theresa Gregg. The record refutes
these allegations. Counsel had an investigator attempt to locate
Shantelle Vickers to sign a medical release, but was unsuccessful.
(BOE 1525:18- 1529:24). See Davlin, 277 Neb. at 983 (finding counsel
not ineffective when subpoenas were issued, but not successfully
served [on] the witness). Further, certain medical records were received
into evidence relating to altercations with Defendant and others had
been subpoenaed. (Ex. 103; BOE 1517:11-18). Additionally, counsel
had Theresa Gregg testify at length about mandatory reporting
procedures for domestic violence to attack the credibility of . . .
Shantelle Vickers’ testimony. (BOE 1513:19-1521:3).
(Filing No. 10-6 at CM/ECF p. 110.)
On appeal, the Nebraska Supreme Court affirmed the state district court’s
denial of this claim. The court wrote:
Floyd argues that his trial counsel was ineffective because counsel
failed to subpoena Vickers and Theresa Gregg, the clinical manager of
the emergency department at Creighton University Medical Center, to
bring medical records relating to the alleged domestic abuse of Vickers
by Floyd. Floyd argues that this would have allowed counsel to
impeach Vickers on her claims that Floyd was a violent boyfriend.
First, as with Traeshawn, the record indicates that counsel did attempt
to subpoena Vickers for the medical records, but could not find her.
This indicates that counsel was not deficient.
Second, Floyd fails to allege why the medical records would have been
exculpatory evidence. At best—and his brief concedes this—the
medical records would have discredited Vickers’ testimony about being
47

abused by Floyd. Such evidence is not exculpatory and Floyd has failed
to properly plead prejudice.
Third, the record affirmatively establishes that Floyd was not
prejudiced by the failure to subpoena the medical records. During the
cross examination of Vickers, the record indicates extensive
questioning on what her alleged injuries were and on why she failed to
have medical records to prove such injuries. Additionally, Gregg was a
witness for Floyd and testified that she was required by law to report
domestic abuse. This was elicited to demonstrate that absence of a
police report indicated that Vickers never sought medical attention.
This called into question Vickers’ testimony that she had been
hospitalized by Floyd’s abuse. This is exactly the evidence Floyd
believes would have been elicited if trial counsel had properly
subpoenaed the medical records. Therefore, the record affirmatively
establishes that Floyd was not prejudiced by this alleged error.
For the three reasons stated, this argument is without merit.
(Filing No. 109-1 at CM/ECF pp. 18-19.)
Floyd did not rebut, by clear and convincing evidence, the Nebraska state
courts’ findings of fact on this issue, nor did he make any effort to do so. Both the
state district court and the Nebraska Supreme Court reviewed the evidence and
determined, based on Strickland, that trial counsel’s conduct was not deficient, and
that Floyd was not prejudiced by trial counsel’s failure to subpoena Shantelle
Vickers’ medical records. Indeed, trial counsel called into question Vickers’
testimony that she had been hospitalized by Floyd’s abuse. Thus, the medical records
would have been cumulative and would not have changed the outcome of trial. See
Wong, 558 U.S. at 22-23. Floyd did not argue, much less establish, that the state
courts’ decisions on this issue were based on an unreasonable determination of the
facts in light of the evidence or that they were contrary to, or involved an
unreasonable application of, clearly established federal law as determined by the
United States Supreme Court. Thus, Floyd is not entitled to relief on this claim.
48

6. Claim One, Subpart (34)
In Claim One, Subpart (34), Floyd asserts that trial counsel was ineffective
for failing to object to prosecutorial misconduct during closing arguments and the
direct examination of Shantelle Vickers. (Filing No. 127 at CM/ECF pp. 46-48.)
In reviewing prosecutorial misconduct claims, the narrow issue that the
federal habeas court may consider is whether there was a violation of due process,
and not whether there was misconduct under the court’s broad exercise of
supervisorial power. Darden v. Wainwright, 477 U.S. 168, 181 (1986). The test is
whether the prosecutor’s conduct “so infected the trial with unfairness as to make
the resulting conviction a denial of due process.” Id. (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)). The court must distinguish ordinary trial
error of a prosecutor from that sort of egregious misconduct which amounts to a
constitutional violation of due process. Smith v. Phillips, 455 U.S. 209, 221 (1982).
“[T]he touchstone of due process analysis in cases of alleged prosecutorial
misconduct is the fairness of the trial, not the culpability of the prosecutor.” Id. at
219. Moreover, determining whether prosecutorial misconduct occurred during
closing argument requires an examination of the entire proceedings so that the
prosecutor’s remarks may be placed in the proper context. Boyde v. California, 494
U.S. 370, 384-85 (1990).
With respect to Floyd’s assertion that trial counsel was ineffective for failing
to object to the prosecutor’s improper closing arguments, both the state district court
and the Nebraska Supreme Court rejected the claim. The state district court stated:
Defendant alleges counsel failed to object to certain portions of the
State’s closing argument. In assessing allegations of prosecutorial
misconduct in closing arguments, a court first determines whether the
prosecutor’s remarks were improper and then it must decide[] what
prejudicial effect those improper remarks impact the defendant’s right
to a fair trial. State v. Balvin, 18 Neb. App. 690, 791 N.W.2d 352
49

(2010). Here, Defendant cites portions of the record, but provides only
conclusory allegations as to why these portions of the closing argument
were improper or how they impacted Defendant’s right to a fair trial.
Further, a review of the entirety of the State’s closing argument in light
of the evidence adduced at trial reveals there were no improper
comments or that Defendant’s right to a fair trial was impacted. Thus,
the record refutes Defendant suffered any prejudice. Balvin, supra
(although counsel failed to object to closing arguments, defendant
suffered no prejudice and counsel was not ineffective when the
argument was proper and based on the evidence).
(Filing No. 10-6 at CM/ECF p. 111.) The Nebraska Supreme Court also rejected the
argument, writing as follows:
Floyd argues that his trial counsel was ineffective for failing to object
to improper comments made by the prosecutor during closing
arguments. First, Floyd points to the prosecutor’s argument that
Vickers could identify Floyd without seeing his face because all of the
jurors know someone they could identify by their body mannerisms.
Floyd, without specification, claims such a statement was improper.
Second, Floyd finds impropriety in the prosecution[’]s statement that
“I’m just telling you that William Floyd was not over at Ruth Buie’s
house the night that he killed Destiny Davis.” Floyd believes that it was
improper for the prosecutor to share his beliefs with the jury.
Third, Floyd argues the prosecution’s statement that “(h)er sister is
murdered, shot in the house while she’s there, dies on the floor of the
living room.” He alleges this is a misstatement because she actually was
pronounced dead at the hospital. Fourth, he complains that the
prosecutor argued that Vickers’ identified the shooter as Floyd in the
original 911 phone call. He states it was improper because it was never
affirmatively established.
Generally, in assessing allegations of prosecutorial misconduct in
closing arguments, a court first determines whether the prosecutor’s
remarks were improper. It is then necessary to determine the extent to
which the improper remarks had a prejudicial effect on the defendant’s
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right to a fair trial. A prosecutor’s conduct that does not mislead and
unduly influence the jury does not constitute misconduct.
Floyd does not sufficiently explain in his pleading why counsel was
deficient for not objecting to each alleged instance of prosecutorial
misconduct. He does not affirmatively establish that any of the four
statements, taken in the context of the entire trial, were legally improper
under our case law. To prove deficiency, Floyd must establish why the
objections would have been sustained. Defense counsel is not
ineffective for failing to raise an argument that has no merit. Because
Floyd failed to establish why the objections would have been sustained,
this argument is without merit.
Even if we accepted each statement as improper, we conclude that
Floyd has failed to allege prejudice because he does not explain how
the prosecutor’s closing argument unduly mislead or influenced the
jury. He fails to allege that the outcome of this trial would have been
different, had his trial counsel objected to these allegedly improper
statements. Without properly pleading prejudice, Floyd’s argument
fails.
(Filing No. 109-1 at CM/ECF pp. 25-27 (footnotes omitted).)
The Nebraska state courts’ determinations that Floyd was not denied effective
assistance of counsel due to trial counsel’s failure to object to the prosecutor’s
closing arguments were not contrary to, or an unreasonable application of, clearly
established federal law, or an unreasonable determination of the facts. See 28 U.S.C.
§ 2254(d). Thus, where the Nebraska state courts reasonably found that the
prosecutor’s comments did not amount to misconduct, did not mislead the jury, or
did not impact Floyd’s right to a fair trial, federal habeas relief is not warranted.
With respect to Floyd’s argument that trial counsel was ineffective for failing
to object to statements made by Vickers during direct examination, the Nebraska
Supreme Court stated:
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Floyd argues that his counsel should have objected to testimony by
Vickers that she had seen Floyd with a gun. Specifically, she testified
that prior to October 7, 2003, she had seen the grip of a pistol in Floyd’s
pocket. Floyd argues that this was a highly prejudicial statement
because the handle could have been a water gun or a BB gun.
This argument clearly has no merit. Floyd does not explain on what
grounds his trial counsel should have objected and does not provide
reasoning as to why such an objection would have been sustained.
Defense counsel is not ineffective for failing to raise an argument that
has no merit. Additionally, Floyd once again fails to explain how
excluding this evidence would have altered the outcome of the trial.
(Filing No. 109-1 at CM/ECF pp. 27-28 (footnotes omitted).)
Floyd has not shown that he was prejudiced by trial counsel’s failure to lodge
an objection to Vickers’ testimony that she had seen Floyd with a gun. Floyd has
presented no evidence, absent his own conclusory statements, that failure to object
to Vickers’ testimony was prejudicial. Considering the weight of the evidence
against him, Floyd has not shown that the result of the trial would have been different
if trial counsel had objected to Vickers’ testimony. Floyd has not demonstrated that
the Nebraska Supreme Court’s decision denying his claim was contrary to, or
involved an unreasonable application of, clearly established federal law, as required
by the Supreme Court. Accordingly, under the deferential standards of review
mandated by the AEDPA, the court finds Floyd’s claim without merit.
7. Claim One, Subpart (39)
In Claim One, Subpart (39), Floyd argues that trial counsel was ineffective
because he failed to sequester jurors. (Filing No. 131 at CM/ECF p. 10.) The
Nebraska Supreme Court considered and rejected this argument in its order
affirming the state district court’s denial of postconviction relief. The court wrote:
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Floyd argues that his counsel should have moved the district court to
sequester the jury. According to Floyd, this would have prevented the
jurors from being exposed to the news article. We hold that Floyd, once
again, failed to allege any specific evidence demonstrating that the
outcome of his trial would have been different had the jury been
sequestered.
Furthermore, we find that the record affirmatively establishes that such
alleged error did not prejudice Floyd. Our opinion on direct appeal
clearly establishes that the jurors’ exposure to the newspaper did not
prejudice Floyd. This claim has no merit.
(Filing No. 109-1 at CM/ECF p. 24.) Notably, on direct appeal, the Nebraska
Supreme Court determined as follows:
In his fifth and final assignment of error, Floyd argues that the district
court erred in not granting his motion for mistrial or, in the alternative,
motion to strike jurors D.W. and F.W. as a result of their exposure to a
newspaper article.
Neb. Rev. Stat. § 29-2006 (Reissue 2008) provides in relevant part:
The following shall be good causes for challenge to any
person called as a juror or alternate juror, on the trial of
any indictment: . . . (2) that he has formed or expressed an
opinion as to the guilt or innocence of the accused;
Provided, if a juror or alternate juror shall state that he has
formed or expressed an opinion as to the guilt or innocence
of the accused, the court shall thereupon proceed to
examine, on oath, such juror or alternate juror as to the
ground of such opinion; and if it shall appear to have been
founded
upon
reading
newspaper
statements,
communications, comments or reports, or upon rumor or
hearsay, and not upon conversations with witnesses of the
transactions or reading reports of their testimony or
hearing them testify, and the juror or alternate juror shall
say on oath that he feels able, notwithstanding such
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opinion, to render an impartial verdict upon the law and
the evidence, the court, if satisfied that such juror or
alternate juror is impartial and will render such verdict,
may, in its discretion, admit such juror or alternate juror as
competent to serve in such case. . . .
In this case, Floyd’s argument that the motions to strike D.W. and F.W.
should have been granted is without merit. There is simply no evidence
to suggest that D.W. or F.W. had even formed an opinion about Floyd’s
guilt. At most, there is some evidence that both D.W. and F.W. saw
Floyd’s name in a newspaper headline and, in accordance with the
district court’s admonition, “immediately disregard[ed]” it. We
therefore conclude that the district court did not abuse its discretion in
denying Floyd’s motion to strike these two jurors.
Nor did the district court abuse its discretion in denying Floyd’s motion
for mistrial. In order for a verdict to be set aside because of the
prejudicial effect of newspaper accounts on jurors, there must be
evidence presented that the jurors read newspaper accounts and that the
accounts were unfair or prejudicial to the defendant. In order for jury
misconduct to be the basis for a new trial, the misconduct must not only
occur but it must be prejudicial to the defendant. A criminal defendant
claiming jury misconduct bears the burden of proving, by a
preponderance of the evidence, (1) the existence of jury misconduct and
(2) that such misconduct was prejudicial to the extent that the defendant
was denied a fair trial.
This court’s decision in State v. Anderson is helpful. In Anderson, we
held that jury misconduct occurred when several jurors read a
newspaper headline about the defendant’s retrial and then discussed the
headline with other jurors. Despite this misconduct, however, we
concluded that the defendant failed to meet his burden of showing that
his right to a fair trial was prejudiced by the misconduct. We noted:
The examination of the jurors in this cause by the trial
court and both counsel failed to disclose either directly or
inferentially that any of the jurors had been prejudiced by
their exposure to the headline or subhead in question. Even
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though three of the jurors acknowledged that the subhead
stated that the instant cause was a retrial, none of the jurors
exhibited any knowledge as to the circumstances of the
retrial or whether the first trial was terminated prior to its
conclusion or was reversed on appeal. The mere use of the
word retrial, without further explanation, does not
automatically connote that a defendant was convicted of
particular crimes in a prior trial, nor does it necessarily
mean that a prior trial had reached its completion. Simply
put, none of the jurors testified that they had any
knowledge regarding a prior conviction or as to why [the
defendant] was being granted a new trial.
As an initial matter, we question whether D.W.’s and F.W.’s actions in
reading a portion of the headline of the article in question constituted
jury misconduct. Unlike the jurors in Anderson, who had the contents
of the headline brought to their attention and then proceeded to discuss
it, there is no evidence that suggests that D.W. or F.W. discussed the
contents of the headline with anyone. In fact, the record establishes that
F.W. threw the newspaper away “as fast as I probably have in my life.”
And D.W. indicated that he saw the article’s headline and “just looked
down” to avoid seeing anything further.
Moreover, we conclude that Floyd has failed to meet his burden of
showing that his right to a fair trial was prejudiced by the alleged
misconduct. We noted in Anderson that the “mere use of the word
retrial” was not, on its own, prejudicial. And as in Anderson, there is
nothing in the record that would suggest either D.W. or F.W. had any
knowledge as to Floyd’s prior conviction or as to why he was being
granted a new trial. In fact, with respect to F.W., there is no evidence
that she was even aware that Floyd’s trial was a retrial. We therefore
also conclude that the district court did not abuse its discretion in
denying Floyd’s motion for mistrial.
Floyd’s fifth and final assignment of error is without merit.
Floyd, 277 Neb. at 513-16, 763 N.W.2d at 102-03. (Filing No. 9-5 at CM/ECF pp.
11-13.)
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Floyd has failed to show that he was prejudiced by the failure to sequester the
jury and has cited no authority necessitating sequestration in this case. The record
generated did not support a finding that media coverage of the case was so
outrageous that the trial was “utterly corrupted.” Dobbert v. Florida, 432 U.S. 282,
303 (1977). In addition, Floyd did not rebut, by clear and convincing evidence, the
Nebraska Supreme Court’s findings that the jurors’ exposure to a newspaper article
was not prejudicial, nor did he make any effort to do so. Again, the court must grant
substantial deference to the Nebraska Supreme Court’s findings of fact and
conclusions of law. Floyd has failed to establish that the Nebraska Supreme Court’s
decisions on sequestration and juror exposure to media coverage were based on an
unreasonable determination of the facts in light of the evidence or that it was contrary
to, or involved an unreasonable application of, clearly established federal law as
determined by the United States Supreme Court. Accordingly, Floyd is not entitled
to habeas relief on Claim One, Subpart (39).
8. Remaining Subparts of Claim One
To the extent any of the remaining subparts of Claim One are subsumed within
the ineffective assistance of trial counsel claims discussed by the Nebraska Supreme
Court, they are denied. Floyd did not rebut, by clear and convincing evidence, the
Nebraska Supreme Court’s findings or establish that the Nebraska Supreme Court’s
rejection of these claims was based on an unreasonable determination of the facts in
light of the evidence or that it was contrary to, or involved an unreasonable
application of, clearly established federal law as determined by the United States
Supreme Court.
To the extent any of the remaining subparts of Claim One were not presented
in one complete round of review by the Nebraska state courts, see Akins, 410 F.3d
at 454-55, or to the extent the Nebraska Supreme Court did not reach the merits of
any of the remaining subparts based on Floyd’s failure to properly plead prejudice
or his failure to present the claims to the district court, these claims are procedurally
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defaulted, see Hunt v. Houston, 563 F.3d 695, 703 (8th Cir. 2009) (“Federal courts
generally will not review claims that a state court has refused to consider because of
the petitioner’s failure to satisfy a state procedural requirement”); Sing v. Frakes,
No. 8:15CV134, 2016 WL 3248244, at *5 (D. Neb. June 13, 2016) (same); Ildefonso
v. Gage, No. 4:13CV3110, 2016 WL 1092468, at *9 (D. Neb. Mar. 21, 2016),
certificate of appealability denied (Sept. 15, 2016) (the Nebraska Supreme Court’s
decision to refuse to consider claims that alleged only conclusions of fact or law was
based on a firmly established state procedural rule; in Nebraska, if a postconviction
motion alleges only conclusions of fact or law, then the court is not required to grant
an evidentiary hearing); State v. Dragon, 843 N.W.2d 618, 623 (Neb. 2014) (“If a
postconviction motion alleges only conclusions of fact or law, or if the records and
files in the case affirmatively show that the defendant is entitled to no relief, the
court is not required to grant an evidentiary hearing”); Deckard, 722 N.W.2d at 63
(“An appellate court will not consider as an assignment of error a question not
presented to the district court for disposition through a defendant’s motion for
postconviction relief.”). The Nebraska courts would not entertain a successive
postconviction motion based on these same claims and any successive
postconviction motion filed by Floyd would also be barred by Nebraska’s statute of
limitations. Thus, the claims are now procedurally defaulted, not merely
unexhausted.
Even assuming Floyd were able to establish adequate cause for any procedural
default of the remaining ineffective assistance of trial counsel claims set forth in
Claim One, Floyd has failed to show that any of the claims have merit. The court
has independently analyzed the arguments raised in each of the subparts of Claim
One. The court has concluded that all the arguments are conclusory, based only on
general assertions of prejudice or no assertions of prejudice at all, or are meritless.
To discuss the court’s reasoning for each of these arguments would unduly prolong
the length of this opinion, and it is unnecessary in light of the especially deferential
standard of review under Strickland.
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B. Claim Two
In Claim Two, Floyd alleges various ways in which appellate counsel was
ineffective.
As to the ineffective assistance of appellate counsel claims that Floyd raised
in his postconviction appeal, the Nebraska Supreme Court wrote:
Floyd argues that his appellate counsel was ineffective for failing to
raise 14th Amendment claims on direct appeal. Floyd lists the
following direct appeal claims that were not argued: lack of jurisdiction,
use of false evidence and witnesses, the State’s failure to disclose
impeachment evidence (Brady material), failure to give proper notice
of the nature and cause of accusations against defendant, improper jury
instructions[,] failure to prove guilt beyond a reasonable doubt,
incorrect elements for first degree murder and manslaughter of an
unborn child, presenting evidence designed to inflame the jury, the trial
court erred in accepting the jury’s guilty verdict when there was no
proof of venue, trial court erred in overruling counsel’s motion to
remove for cause juror who had formed an opinion about the defendant
being guilty, erroneous jury instructions, and insufficient evidence in
the second amended information on counts I, II, and III. Floyd
continues to cite a handful of cases in his motion for postconviction
relief but fails to tie those cases to specific direct appeal claims.
When analyzing a claim of ineffective assistance of appellate counsel,
courts usually begin by determining whether appellate counsel’s failure
to bring a claim on appeal actually prejudiced the defendant. That is,
courts begin by assessing the strength of the claim appellate counsel
failed to raise. Counsel’s failure to raise an issue on appeal could only
be ineffective assistance if there is a reasonable probability that
inclusion of the issue would have changed the result of the appeal.
Floyd has failed to establish that there is a reasonable probability that
the inclusion of any of these assignments of error on his direct appeal
would have changed his direct appeal. All of the alleged errors by
appellate counsel are meaningless to this court without more discussion
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and context from Floyd. For instance, we cannot guess as to why Floyd
believes that the trial court lacked jurisdiction and venue in this case.
For these reasons, we reject Floyd’s claims for ineffective assistance of
appellate counsel because he has failed to properly allege how he was
prejudiced.
(Filing No. 109-1 at CM/ECF pp. 29-31 (footnotes omitted).)
The Nebraska Supreme Court’s decision to refuse to consider claims that
alleged only conclusions of fact or law was based on a firmly established state
procedural rule. That is, in Nebraska, if a postconviction motion alleges only
conclusions of fact or law, then the court is not required to grant an evidentiary
hearing. See, e.g., Dragon, 843 N.W.2d at 623; State v. Fox, 840 N.W.2d 479, 485
(Neb. 2013); State v. Baker, 837 N.W.2d 91, 96 (Neb. 2013); State v. Marks, 835
N.W.2d 656, 661 (Neb. 2013); State v. Branch, 834 N.W.2d 604, 607 (Neb. 2013).
Therefore, even if all subparts of Claim Two were raised in Floyd’s postconviction
appeal, they are procedurally defaulted pursuant to an independent and adequate
state procedural rule. See Hunt, 563 F.3d at 703; Sing, No. 8:15CV134, 2016 WL
3248244, at *5; Ildefonso, No. 4:13CV3110, 2016 WL 1092468, at *9. All subparts
of Claim Two are now procedurally defaulted, not unexhausted, because the
Nebraska courts would not entertain a successive postconviction motion based on
these claims. Furthermore, any successive postconviction motion filed by Floyd
would also be barred by Nebraska’s statute of limitations.
Floyd has not demonstrated cause or prejudice for the default. Floyd cannot
rely on Martinez to excuse the procedural default because Martinez does not apply
to defaulted ineffective assistance of appellate counsel claims. Davila v. Davis, 137
S. Ct. 2058, 2063 (2017); Dansby v. Hobbs, 766 F.3d 809, 833 (8th Cir. 2014).
Moreover, as discussed below, Floyd has not shown that he is actually (meaning
factually) innocent or that some miscarriage of justice took place. The court has
carefully examined the record; the evidence was sufficient to convict Floyd beyond
a reasonable doubt.
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C. Claims Three, Four, and Six
The court agrees with the Respondents that Claims Three, Four, and Six are
procedurally defaulted because Floyd did not specifically assign and argue these
claims to the Nebraska Supreme Court either in his direct appeal after retrial or in
his postconviction appeal. The claims are now procedurally defaulted, not
unexhausted. He cannot raise them in a successive postconviction motion.
Furthermore, any successive postconviction motion filed by Floyd would also be
barred by Nebraska’s statute of limitations.
To the extent that Floyd argues that the procedural default should be excused
because counsel was deficient in failing to raise the constitutional claims on direct
appeal, “[a] claim of ineffective assistance of counsel must be presented to the state
court as an independent claim before it may be used to establish cause for procedural
default or denominated as a ground for habeas relief.” Leggins v. Lockhart, 822 F.2d
764, 768 n.5 (8th Cir. 1987). An ineffective assistance of counsel claim asserted as
cause for another procedurally defaulted federal claim can itself be procedurally
defaulted, and, unless the state prisoner can satisfy the cause and prejudice standard
for the procedurally defaulted ineffective assistance of counsel claim, that claim
cannot serve as cause for another procedurally defaulted claim. Edwards v.
Carpenter, 529 U.S. 446, 451-53 (2000).
As discussed above, Floyd did assert in his postconviction relief proceedings
claims of ineffective assistance of appellate counsel as to some but not all subparts
of Claim Three. With respect to those subparts of Claim Three that were raised as
ineffective assistance of appellate counsel claims, the court determined above that
those claims are procedurally defaulted and that Floyd has not demonstrated cause
or prejudice for the default. Therefore, Floyd cannot rely on those ineffective
assistance of appellate counsel claims to overcome the procedural default. See
Edwards, 529 U.S. at 451-53. In addition, any subpart of Claim Three that was not
60

raised as an independent ineffective assistance of appellate counsel claim in the
Nebraska state courts is defaulted. See Leggins, 822 F.2d at 768 n.5.
Floyd did not assert an independent ineffective assistance of appellate counsel
claim for Claim Six in his postconviction relief proceedings. Therefore, Floyd
cannot establish cause for the procedural default. See id.
Although Claim Four is also procedurally defaulted, the court nonetheless
concludes that it is without merit. Floyd has made only conclusory allegations that
counsel “failed to maintain sufficient client contact.” (Filing No. 127 at CM/ECF
pp. 51-54.) Floyd admits that counsel did in fact communicate, just not to the extent
he wished. (Id.) Floyd does not develop this argument by providing any explanation
of how, but for this alleged lack of communication, the result of trial would have
been different. Accordingly, even assuming this claim is not procedurally defaulted,
it is without merit.
D. Claim Seven
In Claim Seven, Floyd has presented a claim of actual innocence as a gateway
through any type of procedural default. (Filing No. 131 at CM/ECF p. 15.)
To obtain review of an otherwise procedurally barred claim, a petitioner must
satisfy a two-part test: (1) the “allegations of constitutional error must be supported
with new reliable evidence not available at trial”; and (2) “it is more likely than not
that no reasonable juror would have convicted him in light of the new evidence.”
Nash v. Russell, 807 F.3d 892, 899 (8th Cir. 2015) (citing Schlup, 513 U.S. at 32728); accord Amrine v. Bowersox, 238 F.3d 1023, 1029 (8th Cir. 2001). In Schlup,
the Court provided several examples of “reliable evidence,” including “exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.”
513 U.S. at 324. The Eighth Circuit Court of Appeals has further defined “new
evidence” as evidence that “was not available at trial and could not have been
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discovered earlier through the exercise of due diligence.” Amrine, 238 F.3d at 1028;
see also Kidd v. Norman, 651 F.3d 947, 951-53 (8th Cir. 2011) (discussing how
various circuits have defined “new” and approving of the Amrine definition). In
McQuiggin, the Supreme Court cautioned “that tenable actual-innocence gateway
pleas are rare.” 569 U.S. at 386.
Floyd has presented no new, reliable evidence of actual innocence in this case.
He provides no “exculpatory scientific evidence, trustworthy eyewitness accounts,
or critical physical evidence,” Schlup, 513 U.S. at 324, to demonstrate his claim’s
credibility. Moreover, there is no indication that any of the evidence he has presented
is new information that “was not available at trial and could not have been
discovered earlier through the exercise of due diligence.” Amrine, 238 F.3d at 1028.
Indeed, Floyd does nothing more than rehash the evidence and arguments presented
at retrial. (See Filing No. 131 at CM/ECF pp. 2-9.) Thus, Floyd has not satisfied the
requisite elements to excuse his procedurally defaulted claims through any
“gateway” claim of actual innocence.
E. Access to the Courts
Citing cases involving access to the courts and prison law libraries, Floyd
argues that the State “interfered or hindered the exhaustion process.” (Filing No. 187
at CM/ECF p. 1.) The court understands that Floyd is arguing that he has shown
cause for his failure to properly raise his claims because he was denied his
constitutional right of meaningful access to the courts during his postconviction
proceedings. Although “it is conceivable that the denial of access to the courts may
be imputed to the State and thus constitute cause in some circumstances,” Lamp v.
Iowa, 122 F.3d 1100, 1105 (8th Cir. 1997), the court concludes that Floyd did in fact
have meaningful access to the postconviction court and therefore has failed to
establish cause to excuse his procedural default.

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Prisoners have a constitutional right of access to the courts. Bounds v. Smith,
430 U.S. 817, 821 (1977), overruled in part by Lewis v. Casey, 518 U.S. 343 (1996).
In the aftermath of Bounds, the Supreme Court in Lewis narrowed the scope of the
right of access to the courts. In Lewis, the Court made clear that Bounds did not
establish “an abstract, freestanding right to a law library or legal assistance” but
rather emphasized that meaningful access is the touchstone of the constitutional right
of access doctrine. 518 U.S. at 350. Importantly, the Court specifically disclaimed
excerpts in Bounds suggesting that states are required to enable prisoners “to
discover grievances and to litigate effectively once in court.” 518 U.S. at 354
(emphasis omitted). The Court concluded its narrowing of Bounds with this
statement:
In other words, Bounds does not guarantee inmates the wherewithal to
transform themselves into litigating engines capable of filing
everything from shareholder derivative actions to slip-and-fall claims.
The tools it requires to be provided are those that the inmates need in
order to attack their sentences, directly or collaterally, and in order to
challenge the conditions of their confinement. Impairment of any other
litigating capacity is simply one of the incidental (and perfectly
constitutional) consequences of conviction and incarceration.
Id. at 355 (emphasis in original).
Recognizing that Lewis lays out the framework for analyzing access-to-courts
claims brought by inmates, the Eighth Circuit has held “the right of access to the
courts guarantees an inmate the ability to file lawsuits that directly or collaterally
attack the inmate’s sentence or that challenge the conditions of the inmate’s
confinement, but it does not extend to the right to ‘discover grievances’ or to ‘litigate
effectively once in court.’” Cody v. Weber, 256 F.3d 764, 76-68 (8th Cir. 2001)
(quoting Lewis, 518 U.S. at 354-55). “The right of access to the courts is satisfied if
the prisoner has the capability of bringing contemplated challenges to sentences or
conditions of confinement before the courts.” Zink v. Lombardi, 783 F.3d 1089, 1108
63

(8th Cir. 2015) (en banc) (per curiam) (citation omitted). Importantly, the Eighth
Circuit has specifically held that in order to state an access-to-courts claim, an inmate
“must establish the state has not provided an opportunity to litigate a claim
challenging the prisoner’s sentence or conditions of confinement in a court of law
which resulted in actual injury, that is, the hindrance of a nonfrivolous and arguably
meritorious underlying legal claim.” Williams v. Hobbs, 658 F.3d 842, 851–52 (8th
Cir. 2011).
Floyd makes no specific allegations regarding his inability to comply with
state procedural rules due to his incarceration. Moreover, it is evident that Floyd has
been able to bring legal challenges as is evident from his amended postconviction
motion filed in state district court and the numerous and extensive filings in this
court. The only specific complaint that Floyd mentions is that the prison interfered
with his ability to complete his habeas brief and exhibit list “to illustrate more claims
of prosecutorial misconduct, judicial misconduct, and ineffective assistance of
counsel” by taking his “legal mail/material and has determine[d] that the remaining
50% is not part of [his] litigation for [his] Habeas Corpus.” (Filing No. 187 at
CM/ECF p. 65.) Floyd has not identified the legal materials that were taken from
him or how it affected his ability to file his brief with this court. In fact, the record
reflects that prison officials returned to Floyd those legal materials that were related
to this habeas case (Filing No. 181-1), and this court gave Floyd additional time to
complete his brief once the papers were returned (Filing No. 182). Floyd simply has
not established that the prison interfered with his ability to raise his postconviction
claims in state court. Thus, Floyd has not established cause for his procedural
default.
VI. 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); 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b)(1). The standards for
64

certificates (1) where the district court reaches the merits or (2) where the district
court rules on procedural grounds are set forth in Slack v. McDaniel, 529 U.S. 473,
484-85 (2000). The court has applied the appropriate standard and determined that
Floyd is not entitled to a certificate of appealability.
IT IS THERFORE ORDERED that the Petition for Writ of Habeas Corpus
(Filing No. 127 & Filing No. 131) is denied and dismissed with prejudice. No
certificate of appealability has been or will be issued. Judgment will be issued by
separate document.
Dated this 16th day of September, 2019.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

65