McPherson v. Frakes

Filing 14

MEMORANDUM AND ORDER that judgment will be entered for the Respondents 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. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROGER MCPHERSON,

)
)
Petitioner,
)
)
v.
)
)
SCOTT R. FRAKES, and MICHAEL )
L. KENNEY,
)
)
Respondents.
)
)

8:15CV162

MEMORANDUM AND ORDER

In 2001, McPherson was found guilty of sexually assaulting his two daughters
who were then ages 12 and 11 and he was also found guilty of child abuse respecting
the children. The girls both testified against him.
Over a decade too late, he filed his § 2254 habeas corpus petition. I now
dismiss it with prejudice. Briefly, the reasons for my decision that the relevant statute
of limitations has run are set forth below.
BACKGROUND
Respondents have moved for summary judgment. The matter has been fully
briefed and the record has been supplied by Respondents. I find that the following
facts to be undisputed:
1.
On November 16, 2001, in the District Court of Lancaster County,
Nebraska, a jury found Petitioner Roger McPherson guilty of two counts of first
degree sexual assault on a child and two counts of child abuse. (Filing No. 7-3 at
CM/ECF pp. 1-4.)

2.
On January 24, 2002, the state district court sentenced McPherson to 25
to 40 years in prison for each count of sexual assault and 5 years in prison for each
count of child abuse. (Id. at CM/ECF pp. 5-7.)
3.
On September 12, 2003, the Nebraska Supreme Court affirmed
McPherson’s convictions and sentences. (Filing No. 7-1 at CM/ECF p. 3.)
4.
On September 14, 2005, McPherson filed a motion for postconviction
relief in the state district court. (Filing No. 7-4 at CM/ECF p. 1.) After dismissing the
majority of the claims without an evidentiary hearing, a hearing was ordered on one
of the claims raised in the postconviction motion. (Id. at CM/ECF pp. 8-10.) On
January 11, 2007, the district court denied postconviction relief on the remaining
claim following an evidentiary hearing. (Id. at CM/ECF pp. 11-15.) McPherson
did not appeal the district court’s judgment. (Filing No. 7-5 at CM/ECF p. 7.)
5.
On September 5, 2013, McPherson filed a second motion for
postconviction relief, and an amended postconviction motion was later filed. (Filing
No. 7-4 at CM/ECF pp. 16, 43.) The state district court dismissed McPherson’s second
postconviction motion as untimely filed under Neb. Rev. Stat. § 29-3001(4)(a)-(e)
(Cum. Supp. 2012). (Filing No. 7-4 at CM/ECF pp. 77-80.)
6.
On June 23, 2014, the Nebraska Court of Appeals affirmed the state
district court’s judgment by sustaining the State’s motion for summary affirmance.
(Filing No. 7-2 at CM/ECF p. 2.)
7.
On July 24, 2014, the Nebraska Supreme Court denied McPherson’s
petition for further review. (Id.)
8.
McPherson’s habeas petition was filed with this Court on May 4, 2015.
(Filing No. 1.)

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9.
His wife was also convicted of one count of aiding and abetting first
degree sexual assault on a child and two counts of child abuse, and she was sentenced
to 12 to 20 years’ imprisonment. State v. McPherson, 668 N.W.2d 504, 508 (Neb.
2003).
ANALYSIS
Under 28 U.S.C. § 2244(d)(1)(A), McPherson had one year to file his habeas
petition in this court once the Nebraska Supreme Court affirmed his conviction and the
90 day time limit for filing a petition for certiorari with the Supreme Court had expired.
See, e.g., Williams v. Bruton, 299 F.3d 981, 982 (8th Cir.2002) (quoting Smith v.
Bowersox, 159 F.3d 345, 348 (8th Cir.1998)). Although a state post-conviction action
will stop the clock from ticking, the one year period had elapsed on December 11,
2004, before he filed any of the state post-conviction actions.
McPherson appears to argue, albeit unclearly, that his claims are not barred by
the statute of limitations because he is “actually innocent.” In McQuiggin v. Perkins,
133 S. Ct. 1924 (2013), the Supreme Court held that a habeas petitioner who can show
actual innocence under the rigorous standard of Schlup v. Delo, 513 U.S. 298 (1995),
is excused from the bar of the statute of limitations under the miscarriage-of-justice
exception.
However, “tenable actual-innocence gateway pleas are rare.” McQuiggin, 133
S. Ct. at 1928. “[A] petitioner does not meet the threshold requirement unless he
persuades the district court that, in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id.
(citing Schlup, 513 U.S. at 329). McPherson has not come close to meeting this
standard.

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In two sentences of his very long and rambling brief he claims that one of his
daughters has now recanted her sworn testimony1. However, he gives no date when
this recantation allegedly occurred. In that same vein, he claims that he has an affidavit
from that child retracting her testimony, but he has failed to provide it.
Even if McPherson could produce the alleged affidavit, it would not establish
“actual innocence” because “[l]atter-day impeachment evidence [. . .] ‘will seldom, if
ever,’ make a clear and convincing case that no reasonable jury could believe the core
of the witness’s account.” Dansby v. Hobbs, 766 F.3d 809, 817 (8th Cir. 2014)
(quoting Sawyer v. Whitley, 505 U.S. 333, 349, 269 (1992)). Thus, McPherson has not
demonstrated that the miscarriage-of-justice exception for “actual innocence” applies.2
Still further, the rest of Petitioner’s arguments are either gobbledegook or a
combination of irrelevant claims about trial, appellate and post-conviction errors or
attorney misconduct or ineffectiveness of counsel none of which would be sufficient
to establish a “miscarriage of justice” under some other theory. For example,
McPherson has not demonstrated that there were extraordinary circumstances beyond
his control making it impossible to file his federal petition. After all, he brought this
case more than ten years late.
Indeed, even if one wrongly allowed McPherson to rely upon the state postconviction actions for tolling purposes despite the fact that those actions were filed

1

“An affidavit from [SM] has been obtained which recants allegations of Sexual
Abuse and/or Child Abuse. Newly obtained evidence discovered after Federal Habeas
Corpus Petition was filed, filing No. 1.” (Filing No. 9 at CM/ECF p. 2.)
2

The evidence against him was overwhelming. State v. McPherson, 668 N.W.2d
504 (Neb. 2003). In addition to the testimony of his two children, Petitioner gave an
incupatory statement to the police after receiving the Miranda warnings. For
example, he admitted “inspecting the girls’ vaginas” allegedly for hygienic purposes.
Id. at 510. The prosecutor was also able to show through physical evidence that sex
toys and pornographic videos were made easily accessible to the children.
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after the federal statute of limitations had already run, his federal petition would have
been late as well. Approximately eight years elapsed when nothing was going on.
Finally, and setting aside McPherson’s “actual innocence” claim, he has not
shown “due diligence” in attempting to procure the alleged but unproven and unfiled
affidavit. Therefore, he will not be permitted to take advantage of the statutory
provision found in 28 U.S.C. § 2244(d)(1)(D) (starting the clock on “the date on which
the factual predicate of the claim or claims presented could have been discovered
through the exercise of due diligence”). To be clear, I recognize under McQuiggin
there is a difference between an “actual innocence” claim asserted to avoid the statute
of limitations and a claim seeking to avoid the statute of limitations under §
2244(d)(1)(D). The former is essentially an equitable matter and the latter is a statutory
matter.
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, Petitioner has failed to make a substantial showing of the denial of
a constitutional right. I am also not persuaded that the issues raised in the petition or
discussed in this opinion 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.

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IT IS ORDERED that judgment will be entered for the Respondents 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 25th day of February, 2016.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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