Buttercase v. Frakes

Filing 19

MEMORANDUM AND ORDER - Upon initial review of the habeas corpus petition (Filing Nos. 1 and 14 ), the court preliminarily determines that Petitioner's claims, as they are set forth in this Memorandum and Order, are potentially cognizable in f ederal court. By November 19, 2018, Respondent must file a motion for summary judgment or state court records in support of an answer. The clerk of the court is directed to set a pro se case management deadline in this case using the following text: November 19, 2018: deadline for Respondent to file state court records in support of answer or motion for summary judgment. No discovery shall be undertaken without leave of the court. See Rule 6 of the Rules Governing Section 2254 Cases in the United States District Courts. (Pro Se Case Management Deadline set for 11/19/2018 - check for Respondent's answer and separate brief.) Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(CS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOSEPH JUAN BUTTERCASE,
Petitioner,
v.
SCOTT R. FRAKES, Director,
Nebraska Department of Correctional
Services,
Respondent.

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8:18CV131

MEMORANDUM AND ORDER

This matter is before the court on preliminary review of Petitioner Buttercase’s
Petition for Writ of Habeas Corpus (Filing Nos. 1 and 14) brought pursuant to 28
U.S.C. § 2254.1 The purpose of this review is to determine whether Petitioner’s
claims, when liberally construed, are potentially cognizable in federal court.
Petitioner’s 29 claims (in his own words) are:
Claim No. 1:

There was insufficient evidence adduced at the
Petitioner’s trial to convict him beyond a reasonable
doubt, in violation of the Petitioner’s due process
rights, as guaranteed by the Fifth and Fourteenth
Amendments to the United States Constitution.

Claim No. 2:

The state courts’ denial of allowing past sexual
evidence is in violation of the Petitioner’s

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Petitioner was ordered to file an amended petition due to the length of the first
one. Instead, Petitioner filed a “Clarification of Petition” (filing no. 14), essentially an
index of the petition showing the number of claims and the page where they could be
found within the previously filed petition. I do not construe this document as amending
the petition, but, since it locates where the claims in the petition may be found within
that 242-page document, I waive the requirement of an amended petition.

confrontation and due process rights, as guaranteed
by the Fifth, Sixth, and Fourteenth Amendments to
the United States Constitution.
Claim No. 3:

The state courts’ denial of the Petitioner’s first
motion for new trial is in violation of the Petitioner’s
compulsory process and due process rights, as
guaranteed by the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution.

Claim No. 4:

The Petition er’s s en ten ces are grossly
disproportionate for the crimes that he is actually
innocent of committing, in violation of the
Petitioner’s due process rights and rights against
cruel and unusual punishments, as guaranteed by the
Fifth, Eighth, and Fourteenth Amendments to the
United States Constitution.

Claim No. 5:

The Petitioner’s trial counsel failed to investigate
Walmart surveillance videos of Tessa Fulton, in
violation of the Petitioner’s federal constitutional
right to effective assistance of counsel, confrontation
rights, and due process of the law, as guaranteed by
the Fifth, Sixth, and Fourteenth Amendments to the
United States Constitution.

Claim No. 6:

The Petitioner’s trial counsel failed to investigate and
discover eye witness Sondra Aden, in violation of the
Petitioner’s federal constitutional rights to effective
assistance of counsel, compulsory process, and due
process of the law, as guaranteed by the Fifth, Sixth,
and Fourteenth Amendments to the United States
Constitution.

Claim No. 7:

The Petitioner’s trial counsel failed to investigate and
discover additional Tessa Fulton impeaching
evidence, in violation of the Petitioner’s
constitutional rights to effective assistance of
counsel, confrontation, and due process of the law, as
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guaranteed by the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution.
Claim No. 8:

The Petitioner’s trial counsel failed to object,
pursuant to the discovery order of the court and
Brady v. Maryland, to the state’s introduction of the
non-disclosed exhibits 40, 41, and 52 through 64 at
trial, in violation of the Petitioner’s federal
constitutional rights to effective assistance of
counsel, confrontation, and due process of the law, as
guaranteed by the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution.

Claim No. 9:

The Petitioner’s trial counsel failed to subject
Petitioner’s Tungsten ring to forensic analysis,
present testimony, and offer ring as an exhibit at trial,
in violation of Petitioner’s federal constitutional right
to effective assistance of counsel, confrontation, and
due process of the law, as guaranteed by the Fifth,
Sixth, and Fourteenth Amendments to the United
States Constitution.

Claim No. 10:

The Petitioner’s trial counsel failed to make the
proper Daubert objection to the admissibility of
testimony from Julie Jurich, in violation of
Petitioner’s federal constitutional rights to effective
assistance of counsel, an impartial jury, and due
process of the law, as guaranteed by the Fifth, Sixth,
and Fourteenth Amendments to the United States
Constitution.

Claim No. 11:

The Petitioner’s trial counsel failed to call medical
expert Jennifer Johnson to testify at Petitioner’s trial,
in violation of Petitioner’s federal constitutional
rights to effective assistance of counsel,
confrontation, compulsory process, and due process
of law, as guaranteed by the Fifth, Sixth, and
Fourteenth Amendments to the United States
Constitution.
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Claim No. 12:

The Petitioner’s trial counsel failed to motion the
trial court for a change of venue, in violation of
Petitioner’s federal constitutional rights to effective
assistance of counsel, impartial jury, and due process
of the law, as guaranteed by the Fifth, Sixth, and
Fourteenth Amendments to the United States
Constitution.

Claim No. 13:

The Petitioner’s trial counsel failed to properly object
and motion for a mistrial after the trial judge
chastised the Petitioner in the jury’s presence, in
violation of the Petitioner’s federal constitutional
rights to effective assistance of counsel, impartial
jury, equal protection of the law, and due process of
the law, as guaranteed by the Fifth, Sixth, and
Fourteenth Amendments to the United States
Constitution.

Claim No. 14:

The Petitioner’s trial counsel failed to object,
pursuant to relevance and Rule 403, to text messages
sent from Petitioner to multiple women, in violation
of Petitioner’s federal constitutional rights to
effective assistance of counsel, impartial jury, and
due process of the law, as guaranteed by the Fifth,
Sixth, and Fourteenth Amendments to the United
States Constitution.

Claim No. 15:

The Petitioner’s trial counsel failed to hire an
independent DNA forensic scientist and subject the
state’s DNA evidence to forensic analysis, in
violation of Petitioner’s federal constitutional rights
to effective assistance of counsel, confrontation,
compulsory process, and due process of the law, as
guaranteed by the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution.

Claim No. 16:

The Petitioner’s appellate counsel failed to assign as
error and argue the trial court’s denial of relief from
Petitioner’s motion for Franks hearing, in violation
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of the Petitioner’s federal constitutional rights against
unreasonable searches and seizures, effective
assistance of counsel, and due process of the law, as
guaranteed by the Fourth, Fifth, Sixth, and
Fourteenth Amendments to the United States
Constitution.
Claim No. 17:

The Petitioner’s appellate counsel failed to assign as
error and argue the trial court’s denial of Petitioner’s
first and second motions to suppress, in violation of
Petitioner’s federal constitutional rights against
unreasonable searches and seizures, effective
assistance of counsel, and due process of the law, as
guaranteed by the Fourth, Fifth, Sixth, and
Fourteenth Amendments to the United States
Constitution.

Claim No. 18:

The Petitioner’s appellate counsel failed to argue that
there was insufficient evidence adduced at trial to
convict Petitioner of false imprisonment beyond a
reasonable doubt, in violation of Petitioner’s federal
constitutional right to effective assistance of counsel,
and due process of the law, as guaranteed by the
Fifth, Sixth, and Fourteenth Amendments to the
United States Constitution.

Claim No. 19:

The Petitioner’s appellate counsel failed to assign as
error and argue the trial court’s denial of the
relevance and Rule 403 objection to the admissibility
of Julie Jurich’s testimony, in violation of
Petitioner’s federal constitutional rights to effective
assistance of counsel, impartial jury, and due process
of the law, as guaranteed by the Fifth, Sixth, and
Fourteenth Amendments to the United States
Constitution.

Claim No. 20:

The Petitioner’s postconviction counsel failed to
adequately present Petitioner’s substantial federal
constitutional violation claims to the state
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postconviction court, in violation of Petitioner’s
federal constitutional rights to effective assistance of
counsel and due process of the law, as guaranteed by
the Fifth, Sixth, and Fourteenth Amendments to the
United States Constitution.
Claim No. 21:

The State of Nebraska failed to disclose material
exculpatory tape measure photograph exhibits 40, 41,
and 52 through 64 to defense prior to trial, in
violation of Petitioner’s federal constitutional rights
to effective assistance of counsel, confrontation, and
due process of the law, as guaranteed by the Fifth,
Sixth, and Fourteenth Amendments to the United
States Constitution.

Claim No. 22:

The State of Nebraska failed to disclose material
exculpatory Facebook messages to defense, in
violation of Petitioner’s federal constitutional rights
to effective assistance of counsel, confrontation, and
due process of the law, as guaranteed by the Fifth,
Sixth, and Fourteenth Amendments to the United
States Constitution.

Claim No. 23:

The State of Nebraska failed to disclose material
exculpatory videos of the Petitioner and Tessa Fulton
showing her previous consent to acts later she alleged
done on July 16, 2011, without her consent, in
violation of Petitioner’s federal constitutional rights
to effective assistance of counsel, confrontation, and
due process of the law, as guaranteed by the Fifth,
Sixth, and Fourteenth Amendments to the United
States Constitution.

Claim No. 24:

The State of Nebraska failed to disclose material
exculpatory police interview video of Michelle
Collier to defense prior to trial, in violation of the
Petitioner’s federal constitutional rights to effective
assistance of counsel, confrontation, and due process
of the law, as guaranteed by the Fifth, Sixth, and
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Fourteenth Amendments to the United States
Constitution.
Claim No. 25:

The state trial judge, Paul W. Korslund, was partial
at the Petitioner’s hearings including trial, in
violation of Petitioner’s federal constitutional rights
to an impartial jury, due process of the law, and equal
protection of the laws, as guaranteed by the Fifth,
Sixth, and Fourteenth Amendments to the United
States Constitution.

Claim No. 26:

Juror David Yates was partial at the Petitioner’s trial,
in violation of the Petitioner’s federal constitutional
rights to an impartial jury and due process of the law,
as guaranteed by the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution.

Claim No. 27:

Juror Randy Frerking was partial at the Petitioner’s
trial, in violation of Petitioner’s federal constitutional
right to an impartial jury and due process of the law,
as guaranteed by the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution.

Claim No. 28:

The State of Nebraska postconviction act is
unconstitutionally inadequate for a prisoner seeking
corrective process for the hearing and determining of
claims of violation of federal constitutional
guarantees, in violation of Petitioner’s federal
constitutional rights to due process of the law and
equal protection of the laws, as guaranteed by the
Fifth, Sixth, and Fourteenth Amendments to the
United States Constitution.

Claim No. 29:

The Petitioner is actually innocent of the crimes for
which he was accused of committing in his
convictions, in violation of the Petitioner’s federal
constitutional rights to liberty, due process of the
law, and rights against cruel and unusual punishment,
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as guaranteed by the Fifth, Eighth, and Fourteenth
Amendments to the United States Constitution.
The court determines that these claims, when liberally construed, are potentially
cognizable in federal court. However, the court cautions Petitioner that no
determination has been made regarding the merits of these claims or any defenses to
them or whether there are procedural bars that will prevent Petitioner from obtaining
the relief sought.
IT IS THEREFORE ORDERED that:
1.
Upon initial review of the habeas corpus petition (Filing Nos. 1 and 14),
the court preliminarily determines that Petitioner’s claims, as they are set forth in this
Memorandum and Order, are potentially cognizable in federal court.
2.
By November 19, 2018, Respondent must file a motion for summary
judgment or state court records in support of an answer. The clerk of the court is
directed to set a pro se case management deadline in this case using the following text:
November 19, 2018: deadline for Respondent to file state court records in support of
answer or motion for summary judgment.
3.
If Respondent elects to file a motion for summary judgment, the
following procedures must be followed by Respondent and Petitioner:
A.

The motion for summary judgment must be accompanied by a
separate brief, submitted at the time the motion is filed.

B.

The motion for summary judgment must be supported by any state
court records that are necessary to support the motion. Those
records must be contained in a separate filing entitled:
“Designation of State Court Records in Support of Motion for
Summary Judgment.”
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C.

Copies of the motion for summary judgment, the designation,
including state court records, and Respondent’s brief must be
served on Petitioner except that Respondent is only required to
provide Petitioner with a copy of the specific pages of the record
that are cited in Respondent’s motion and brief. In the event that
the designation of state court records is deemed insufficient by
Petitioner or Petitioner needs additional records from the
designation, Petitioner may file a motion with the court requesting
additional documents. Such motion must set forth the documents
requested and the reasons the documents are relevant to the
cognizable claims.

D.

No later than thirty (30) days following the filing of the motion
for summary judgment, Petitioner must file and serve a brief in
opposition to the motion for summary judgment. Petitioner may
not submit other documents unless directed to do so by the court.

E.

No later than thirty (30) days after Petitioner’s brief is filed,
Respondent must file and serve a reply brief. In the event that
Respondent elects not to file a reply brief, he should inform the
court by filing a notice stating that he will not file a reply brief and
that the motion is therefore fully submitted for decision.

F.

If the motion for summary judgment is denied, Respondent must
file an answer, a designation and a brief that complies with terms
of this order. (See the following paragraph.) The documents must
be filed no later than thirty (30) days after the denial of the motion
for summary judgment. Respondent is warned that failure to file
an answer, a designation and a brief in a timely fashion may
result in the imposition of sanctions, including Petitioner’s
release.
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4.
If Respondent elects to file an answer, the following procedures must be
followed by Respondent and Petitioner:
A.

By November 19, 2018, Respondent must file all state court
records that are relevant to the cognizable claims. See, e.g., Rule
5(c)-(d) of the Rules Governing Section 2254 Cases in the United
States District Courts. Those records must be contained in a
separate filing entitled: “Designation of State Court Records in
Support of Answer.”

B.

No later than sixty (60) days after the relevant state court records
are filed, Respondent must file an answer. The answer must be
accompanied by a separate brief, submitted at the time the answer
is filed. Both the answer and the brief must address all matters
germane to the case including, but not limited to, the merits of
Petitioner’s allegations that have survived initial review, and
whether any claim is barred by a failure to exhaust state remedies,
a procedural bar, non-retroactivity, a statute of limitations, or
because the petition is an unauthorized second or successive
petition. See, e.g., Rules 5(b) and 9 of the Rules Governing Section
2254 Cases in the United States District Courts.

C.

Copies of the answer, the designation, and Respondent’s brief
must be served on Petitioner at the time they are filed with the
court except that Respondent is only required to provide Petitioner
with a copy of the specific pages of the designated record that are
cited in Respondent’s answer and brief. In the event that the
designation of state court records is deemed insufficient by
Petitioner or Petitioner needs additional records from the
designation, Petitioner may file a motion with the court requesting
additional documents. Such motion must set forth the documents
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requested and the reasons the documents are relevant to the
cognizable claims.
D.

No later than thirty (30) days after Respondent’s brief is filed,
Petitioner must file and serve a brief in response. Petitioner must
not submit any other documents unless directed to do so by the
court.

E.

No later than thirty (30) days after Petitioner’s brief is filed,
Respondent must file and serve a reply brief. In the event that
Respondent elects not to file a reply brief, he should inform the
court by filing a notice stating that he will not file a reply brief and
that the merits of the petition are therefore fully submitted for
decision.

F.

The clerk of the court is directed to set a pro se case management
deadline in this case using the following text: November 19, 2018:
check for Respondent’s answer and separate brief.

5.
No discovery shall be undertaken without leave of the court. See Rule 6
of the Rules Governing Section 2254 Cases in the United States District Courts.
DATED this 18th day of September, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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