Newman v. State of Nebraska
MEMORANDUM AND ORDER that judgment will be entered for the Respondent and against the Petitioner, providing that the Petitioner shall take nothing, and his habeas corpus petition 1 is denied and dismissed with prejudice. No certificate of appealability will be issued. A separate judgment will be entered. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (JSF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
Stewart Newman (“Newman”) filed a petition for writ of habeas corpus under
the provisions of 28 U.S.C. § 2254 challenging his conviction for first-degree sexual
assault. The Respondent has filed an answer and a full and complete record of the
state court proceedings. There is no need for an evidentiary hearing. The matter has
been fully briefed.1 I now deny the petition with prejudice.
Claim One: Newman’s Fourteenth Amendment rights to due process and equal
protection were violated when the Nebraska Court of Appeals dismissed his
postconviction appeals because his appeals were perfected under Nebraska
Claim Two: Newman’s Fourteenth Amendment rights to due process and equal
protection were violated when the state district court allowed the State’s late
response to his postconviction motion and did not allow him time to reply to the
Claim Three: Newman’s Fourth Amendment right to be free from
unreasonable searches and seizures was violated when he was illegally arrested
in his home without a warrant, and his Fourteenth Amendment right to due
I compliment Frakes’ counsel for her excellent work.
process was violated when false testimony was given and physical evidence
was withheld at the suppression hearing on his arrest.
Claim Four: Newman’s Fourth Amendment right to be free from unreasonable
searches and seizures was violated when law enforcement illegally searched
and seized his password-protected laptop computer, and his Fourteenth
Amendment right to due process was violated when false testimony was given
and physical evidence was withheld at the suppression hearing on the search
and seizure of his computer.
Claim Five: Newman’s Fourteenth Amendment rights to due process and equal
protection were violated when the Douglas County Jail illegally detained him.
Claim Six: Newman received ineffective assistance of counsel in violation of
the Sixth Amendment when trial counsel and appellate counsel (who were the
same) failed to raise key issues at the suppression hearing, at trial, and on direct
(Filing no. 1; Filing no. 3.)
I rely primarily upon the thorough opinion of the Nebraska Court of Appeals
for the factual summary of the evidence.2 State v. Newman, 838 N.W.2d 317, 321
(Neb. App. 2013) (holding that: (1) defendant was not “seized,” within meaning of
Fourth Amendment, when police officers asked him to accompany them to police
station for interview; (2) defendant’s wife had actual or apparent authority to grant
consent to law enforcement to search laptop computer; (3) defendant was not entitled
to discharge on charges for visual depiction of child pornography on statutory speedy
trial grounds; (4) evidence was sufficient to support conviction for first-degree sexual
assault of child; and (5) sentences imposed were not abuse of discretion).
Newman has not come close to showing those factual findings are erroneous.
This case involves the first-degree sexual assault of a child and visual depiction
of child pornography related to one young girl (“Jane”). She was approximately 10
years of age at the time of the events giving rise to the criminal charges.
In February 2010, Jane sent her mother a text message indicating that Newman
had been “trying to have sex with [her].” Jane’s mother called the 911 emergency
dispatch service and reported the allegations and then took Jane to “Project Harmony,”
where she was interviewed by a member of the Omaha Police Department’s special
victims/child sexual assault unit.
Following Jane’s interview with law enforcement, Newman was arrested after
he voluntarily went to the police station, was given his Miranda rights, and for all
intents and purposes confessed in rather graphic detail to having sex with the child.
Sometime later, Newman’s wife contacted law enforcement about suspecting that
there was child pornography on a jointly owned laptop computer in Newman’s home.
After obtaining her permission to search the computer, law enforcement searched the
laptop, revealing a variety of suspected pornographic images of children, including
photographs of Jane.
After a thorough evidentiary hearing was held and two suppression motions
were denied, both sides agreed to a trial before a judge. The trial was held, and
Newman was found guilty.
Among other things, there was specific evidence that:
Newman, while 37 or 38 years of age, engaged in a pattern of sexual
conduct with a child, beginning when she was 6 years of age and
continuing until she reported it at 10 years of age. The evidence indicates
that the conduct included touching, licking [her labia], and rubbing of
genitals and ejaculation on more than one occasion. Newman was
convicted of first degree sexual assault of a child and six counts of visual
depiction of child pornography related to photographs he took of the 103
year-old victim. Those photographs depict the child in the nude, posed,
with her breasts and genitals exposed, and include an image of the
child’s hand gripping Newman’s erect penis.
Id. at 335.
At the trial, Newman did not dispute that he had engaged in this inappropriate
conduct, except to assert that there had never been penetration. He attempted to
explain his behavior by indicating that the child in this case had asked questions about
sex and that he thought these actions would “curb [her] curiosity” and “educate” her.
Newman acknowledged that he took photographs of Jane that included “posing” of
her, but testified that the 10-year-old child wanted the photographs taken.
The court sentenced Newman to a term of 45 to 70 years’ imprisonment for the
first-degree sexual assault of a child conviction, to be served consecutively with six
concurrent sentences of 5 to 10 years’ imprisonment on each of the visual depiction
of child pornography convictions.
As part of the direct appeal, Newman filed the necessary pauper affidavit that
contained the required jurat of a notary public. (Filing no. 12-11 at CM/ECF p. 5.)
Newman’s signature appears on the affidavit, as does that of the notary public. The
notary’s seal is evident on the document. Newman thus knew that to appeal, a
pauper’s affidavit required both the formalities of an oath administered by, and a
signature subscribed before, a notary public.
Thereafter, Newman filed a state postconviction action. He filed a
“VERIFACATION” that was signed by Newman under oath before a notary public.
(Filing no. 12-13 at CM/ECF p.76.) This sworn document was notarized while
Newman was incarcerated. Thus, there is no question that Newman had a notary
available to him even though he was in prison.
Newman essentially tried to litigate yet a second time the suppression motion.
He also claimed his counsel, at trial and on appeal, was ineffective for the way in
which counsel handled the suppression motions. The state district judge issued an
eight-page opinion thoroughly discussing and denying the motion. (Filing no. 12-13,
at CM/ECF p. 85-82.) The district judge then granted Newman’s request to appeal as
However, the Nebraska Court of Appeals, and later the Nebraska Supreme
Court, found that the alleged affidavit of poverty had not been notarized and
accordingly dismissed the appeal for want of jurisdiction. Newman signed the socalled affidavit claiming he had been sworn under oath, but there is no jurat of a
notary public or other indicia of authority appearing on the document. (Filing no.
12-13, at CM/ECF p. 3.)
The Nebraska Court of Appeals wrote:
Appeal dismissed for lack of jurisdiction. See Neb. Ct. R. App. P. § 2107(A) (2). Appellant’s poverty affidavits, filed in lieu of the statutory
docket fee, are inadequate because they are not notarized. See State v.
Haase, 247 Neb. 817, 530 N.W. 2d 617 (1995) (inadequate poverty
affidavit does not take the place of a docket fee).
(Filing no. 12-4, at CM/ECF p. 3.)
The Nebraska Supreme Court agreed. That is: “Petition for further review
denied. See State v. Ruffin, 280 Neb. 611 (2010).” (Id.)
The law on federal habeas corpus is well-established. Therefore, I provide only
an overview of the most pertinent aspects of that law as applied to this case.
No Review of State-Law Determinations
A petitioner will not be allowed to complain about a ruling on a state-law issue
and dress it up as a federal claim unless there truly is a federal claim undergirding it.
As the Supreme Court has long held, “it is not the province of a federal habeas court
to reexamine state-court determinations on state-law questions.” Estelle v. McGuire,
502 U.S. 62, 67-68 (1991). In particular, “[e]rrors of state law cannot be repackaged
as federal errors simply by citing the Due Process Clause.” Carson v. Dir. Iowa Dept.
of Correctional Servs., 150 F.3d 973, 975 (8th Cir. 1998) (internal quotation marks
and citation omitted). A habeas petitioner must therefore “point to the Supreme Court
precedent” that he believes the state court “acted contrary to or applied unreasonably.”
Evenstad v. Carlson, 470 F.3d 777, 783-84 (8th Cir. 2006) (“Evenstad’s claims boil
down to an issue of Minnesota state law and his attempt to recast the issue in a
constitutional light is unavailing.”).
The Stone v. Powell Rule
The Supreme Court’s holding in Stone v. Powell, 428 U.S. 465 (1976), bars this
court from reviewing many Fourth Amendment claims. In Stone, the Court held that
“‘where the State has provided an opportunity for full and fair litigation of a Fourth
Amendment claim, the Constitution does not require that a state prisoner be granted
federal habeas corpus relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his trial.’” Chavez v. Weber, 497
F.3d 796, 801-802 (8th Cir. 2007) (quoting Stone, 428 U.S. at 482).
In order to overcome this bar, a petitioner must show the State “‘provided no
corrective procedures at all to address the alleged Fourth Amendment violation’ or
that the State ‘provided a corrective mechanism, but [he] was precluded from using
that mechanism because of an unconscionable breakdown in the underlying process.’”
Chavez, 497 F.3d at 802 (quoting Willett v. Lockhart, 37 F.3d 1265, 1271-72 (8th Cir.
Exhaustion and Procedural Default
As set forth in 28 U.S.C. § 2254:
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–
the applicant has exhausted the remedies available
in the courts of the State; or
there is an absence of available State
corrective process; or
circumstances exist that render such process
ineffective to protect the rights of the
28 U.S.C. § 2254(b)(1).
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 quotation marks and
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)).
Nebraska Postconviction 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
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).
Deference 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). 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. Williams v.
Taylor, 529 U.S. 362, 405-406 (2000). Further, “it is not enough for [the court] to
conclude that, in [its] independent judgment, [it] would have applied federal law
differently from the state court; the state court’s application must have been
objectively unreasonable.” Rousan v. Roper, 436 F.3d 951, 956 (8th Cir. 2006).
With regard to the deference owed to factual findings of a state court’s
decision, section 2254(d)(2) states that a federal court may grant a writ of habeas
corpus if a state court proceeding “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the State
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 standard to [the petitioner’s]
claim. The claim must have been ‘adjudicated on the merits’ in state court.”).
The Eighth Circuit clarified what it means for a claim to be adjudicated on the
merits, finding that:
AEDPA’s requirement that a petitioner’s claim be adjudicated on the
merits by a state court is not an entitlement to a well-articulated or even
a correct decision by a state court. Accordingly, the postconviction trial
court’s discussion of counsel’s performance—combined with its
express determination that the ineffective-assistance claim as a whole
lacked merit—plainly suffices as an adjudication on the merits under
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.
Review of Newman’s Claims
After careful review, and applying the law as summarized above, Newman’s
claims can be resolved in a summary fashion. I address each claim briefly below.
This claim relates to Newman’s poverty affidavit that both the Nebraska Court
of Appeals and the Nebraska Supreme Court found was insufficient to vest them with
jurisdiction. This is entirely a matter of state law. There is no showing that Newman
was treated any differently than any other person or prisoner by the Nebraska
appellate courts. Moreover, the record demonstrates that Newman knew how to file
a proper affidavit (as he did in his direct appeal) and that Newman had a notary
public available at the prison (as shown by the notarized postconviction motion he
filed). I have no authority to review this claim under the guise of federal habeas
This claim relates to Newman’s assertion that he was treated unfairly because
the judge handling his postconviction action allowed Nebraska to respond in an
untimely fashion, and because Newman was not given the opportunity to file a reply
brief. Once again, this is purely a matter of state law for which Newman can find no
relief under the federal habeas corpus statute. His postconviction action was carefully
and throughly discussed in an eight-page opinion by the state district judge.
Claim Three and Claim Four
These claims relate to the suppression issues raised before the state trial court.
Under the doctrine of Stone v. Powell, these claims cannot be reviewed, as Newman
was provided a full and fair opportunity to litigate these claims before the state trial
judge and before the Nebraska Court of Appeals. Moreover, and in addition to the
careful review by the state district judge, the Nebraska Court of Appeals thoroughly
reexamined the claims and found them wanting. He was provided the process he was
due under the Fourth Amendment precedent of the Supreme Court. Even if Stone v.
Powell did not bar review, the deference doctrine would doom these claims.
Claim Five and Claim Six
In these claims, Newman complains about his detention in the Douglas County
jail, and he complains about the ineffective assistance of his counsel when litigating
or appealing the suppression motions. These claims have been procedurally defaulted
in that Newman failed to present these claims to the Nebraska appellate courts in
“one complete round.” He has shown no cause or prejudice to avoid this default.
Certificate of Appealability
A petitioner cannot appeal an adverse ruling on his petition for writ of habeas
corpus under § 2254 unless he is granted a certificate of appealability. 28 U.S.C.
§ 2253(c)(1); Fed. R. App. P. 22(b)(1). A certificate of appealability cannot be
granted unless the petitioner “has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, “[t]he
petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529
U.S. 473, 484 (2000).
In this case, Newman has failed to make a substantial showing of the denial of
a constitutional right. I am not persuaded that the issues raised in the petition are
debatable among reasonable jurists, that a court could resolve the issues differently,
or that the issues deserve further proceedings. Accordingly, I will not issue a
certificate of appealability in this case.
IT IS ORDERED that judgment will be entered for the Respondent and against
the Petitioner, providing that the Petitioner shall take nothing, and his habeas corpus
petition (Filing no. 1) is denied and dismissed with prejudice. No certificate of
appealability will be issued. A separate judgment will be entered.
DATED this 20th day of January, 2016.
BY THE COURT:
s/Richard G. Kopf
Senior United States District Judge
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