Shadle v. State of Nebraska

Filing 25

MEMORANDUM AND ORDER that Respondent's Motion for Summary Judgment (Filing No. 11 ) is granted. Petitioner's habeas petition is dismissed with prejudice because his claims are procedurally defaulted. Petitioner's motion to app oint counsel (Filing No. 19 ) and motion to proceed in forma pauperis (Filing No. 20 ) are denied as moot. The court will not issue a certificate of appealability in this matter. The court will enter a separate judgment in accordance with this Memorandum and Order. 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
DILLON SHADLE,
also known as Riley Nicole Shadle,
8:16CV494
Petitioner,
MEMORANDUM
AND ORDER

vs.
SCOTT FRAKES,
Respondent.

This matter is before the court on Respondent’s Motion for Summary
Judgment. (Filing No. 11.) Respondent argues Petitioner Dillon Shadle’s
(“Shadle”) Petition for Writ of Habeas Corpus (“habeas petition”) (Filing No. 1)
must be dismissed because his claims are procedurally defaulted. The court agrees
and will dismiss the habeas petition with prejudice.
I. BACKGROUND
A. Convictions and Direct Appeal
Shadle was convicted of first degree sexual assault of a child, two counts of
visual depiction of sexually explicit conduct, and possession of child pornography,
following his guilty pleas in the Sarpy County District Court on October 27, 2014.
(Filing No. 12-3 at CM/ECF pp. 25-26.) The state district court sentenced Shadle
to consecutive sentences of 30 to 50 years’ imprisonment for first degree sexual
assault of a child, 3 to 6 years’ imprisonment for each count of visual depiction of
sexually explicit conduct, and 4 years’ imprisonment for possession of child
pornography. (Id. at CM/ECF pp. 27-29.) On November 25, 2015, the Nebraska
Court of Appeals affirmed Shadle’s convictions and sentences on direct appeal.
(Filing No. 12-2 at CM/ECF p. 3.) Shadle’s sole assignment of error on direct

appeal was that the state district court imposed upon him excessive sentences.
(Filing No. 12-4 at CM/ECF p. 7.) Shadle did not petition the Nebraska Supreme
Court for further review. (Filing No. 12-2 at CM/ECF p. 3.) The mandate issued on
January 6, 2016. (Id.)
B. Postconviction
Shadle did not file a motion for postconviction relief in the state district
court. (See Filing No. 12-1.)
C. Habeas Petition
Shadle filed his habeas petition (Filing No. 1) in this court on November 1,
2016. Thereafter, Respondent moved for summary judgment (Filing No. 11),
arguing Shadle’s claims are procedurally defaulted (Filing No. 13). Shadle filed
various documents in response. (Filing Nos. 19-21.)1 Respondent filed a Notice of
Case Submission. (Filing No. 23.) This matter is fully submitted for disposition.
II. ANALYSIS
A.

Exhaustion Requirement
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–

1

These documents are a motion to appoint counsel, a motion for leave to
proceed in forma pauperis, and a “Motion to Proceed with Postconviction,” in
which Shadle argues that his sentences are excessive. All of these documents are
captioned “In the District Court of Sarpy County, Nebraska” but with the case
number of this matter.
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(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).
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).
If a claim has not been presented to the Nebraska appellate courts and is now
barred from presentation, the claim is procedurally defaulted, not unexhausted. Id.
at 456 n.1. Under Nebraska law, “[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). In such circumstances,
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when there exists no currently available state court remedy, the claim is
procedurally defaulted, not unexhausted, and the petitioner is entitled to an
opportunity to demonstrate cause and prejudice to excuse the default. Akins, 410
F.3d at 456 n.1.
B. Shadle’s Claims
The court agrees with Respondent that Shadle’s claims, to the extent they are
cognizable in federal court, are procedurally defaulted. The court construed
Petitioner’s habeas petition to set forth 13 separate claims. (Filing No. 8.) Shadle
presented only Claim Four – that his sentences are excessive – on direct appeal to
the Nebraska Court of Appeals. However, because Shadle did not petition the
Nebraska Supreme Court for further review and cannot now present it in a motion
for postconviction relief, Claim Four is procedurally defaulted. All other claims are
procedurally defaulted because Shadle could have presented them on direct appeal
or in a motion for postconviction relief, and for those claims that Shadle could
have presented in a motion for postconviction relief, he had until January 6, 2017,
to file a motion for postconviction relief in state district court. See Neb. Rev. Stat.
§ 29-3001(4)(a); State v. Huggins, 866 N.W.2d 80 (Neb. 2015). Shadle has not
demonstrated cause and prejudice to excuse the default of his claims.
III. CERTIFICATE OF APPEALABILITY
A petitioner cannot appeal an adverse ruling on a petition for writ of habeas
corpus under § 2254 unless 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. Daniel, 529
U.S. 473, 484 (2000).

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In this case, Shadle has failed to make a substantial showing of the denial of
a constitutional right. The court is 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, the
court will not issue a certificate of appealability in this case.
IT IS THEREFORE ORDERED that:
1.
granted.

Respondent’s Motion for Summary Judgment (Filing No. 11) is

2.
Petitioner’s habeas petition is dismissed with prejudice because his
claims are procedurally defaulted.
3.
Petitioner’s motion to appoint counsel (Filing No. 19) and motion to
proceed in forma pauperis (Filing No. 20) are denied as moot.
4.

The court will not issue a certificate of appealability in this matter.

5.
The court will enter a separate judgment in accordance with this
Memorandum and Order.
Dated this 20th day of July, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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