RICHARD G. KOPF, Senior District Judge.
Samuel Bowman (Bowman or Petitioner) has filed a petition for writ of habeas corpus. Respondent has answered and has filed the relevant state court records. The matter has been briefed by both sides. I now deny the petition, dismiss it with prejudice, and refuse to grant a certificate of appealability.
When I progressed this case, I summarized and condensed the claims for clarity and noted my summary of potentially cognizable claims was not a final determination. This is how I summarized the condensed claims:
Petitioner was sentenced to 20 years in prison for a drug conviction after a jury trial. Bowman was driving a rented minivan with another fellow as a passenger and got stopped for speeding while heading east on I-80.
Although tedious but necessary to read, here is how the Nebraska Court of Appeals carefully described what happened during the stop and the somewhat unusual events that followed:
(Filing 10-3 at CM/ECF pp. 2-4.)
Bowman was charged. Suppression motions were filed and denied. These motions were broad in nature seeking to suppress the drugs, the legality of the entire encounter due to a lack of probable cause or reasonable suspicion, illegal detention, statements given in violation of Miranda, questions outside the scope permitted by law, search of the vehicle without consent or outside the scope of consent, and search after consent was withdrawn. The case proceeded to a jury trial. A chemist from the state crime lab testified both as to the nature of the substance and the weight. Bowman presented no evidence and he did not testify.
As is frequently the case in the Nebraska courts, the opening and closing arguments were not recorded because no one requested the court reporter to do so as they could have done under Nebraska law. During the closing argument a dispute arose.
The trial judge, when denying the motion for post-conviction relief predicated upon an assertion of ineffective assistance of counsel, and writing in the third person, described what happened regarding the closing arguments:
(Filing no. 10-13 at CM/ECF p. 3.)
On appeal from the denial of the post-conviction motion, the Nebraska Court of Appeals described what the trial court record reflected regarding Bowman's decision not to testify:
(Filing no. 10-4 at CM/ECF pp. 11-12.)
Additionally, when I proceed to my analysis, I may supplement the background if necessary.
On direct appeal (filing no. 10-3), Bowman made the following arguments: (1) the district court erred in overruling the motion to suppress; (2) the chain of custody for the seized cocaine was improperly established; (3) the district court erred in allowing the forensic chemist to testify to the weight of the seized cocaine; and (4) the district court erred in overruling his motion for mistrial during closing arguments due to the State's statements regarding Bowman's invocation of his Fifth and Sixth Amendment rights as proof of guilt. The Court of Appeals denied the appeal and affirmed the conviction.
On appeal from the denial of post-conviction relief (filing no. 10-4), Bowman made these arguments: (1) trial counsel (who was also counsel on the direct appeal) was ineffective for failing to request recording of the closing arguments; and (2) trial counsel was ineffective concerning Bowman's decision not to testify at trial. Like the direct appeal, this appeal was unsuccessful.
Various strands of federal habeas law intertwine in this case. They are the law of exhaustion and procedural default, 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, the standard for evaluating a claim of ineffective assistance of counsel, and the doctrine of Stone v. Powell which normally precludes secondguessing Fourth Amendment questions when they have been fairly evaluated by the state courts.
I briefly set out those principles now, so that I may apply them later in a summary fashion as I review Petitioner's claims. I turn to that task next.
As set forth in 28 U.S.C. § 2254:
28 U.S.C. § 2254(b)(1).
The United States Supreme Court has explained the habeas exhaustion requirement as follows:
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 marks 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).
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).
Under Nebraska law, you don't get two bites of the post-conviction 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). 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."); State v. Filholm, 848 N.W.2d 571, 576 (Neb. 2014) ("When a defendant's trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel's ineffective performance which is known to the defendant or is apparent from the record. Otherwise, the issue will be procedurally barred.").
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 post-conviction 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.")
Additionally, if a person raises an issue in an initial motion for post-conviction relief but fails to raise it in an amended motion the claim is defaulted under Nebraska law. State v. Armendariz, 857 N.W.2d775, 789 (Neb. 2015) (affirming denial of postconviction relief in a murder case and stating that "[a]n amended pleading supersedes the original pleading, whereupon the original pleading ceases to perform any office as a pleading. It is clear the district court did not err in limiting its analysis to the motion that was before it-the amended motion.").
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).
Still further, it is up to the appellant in a criminal case to provide a Nebraska appellate court with a proper record that will allow the court to assess an assignment of error and failing the provision of a proper record the matter is defaulted. See, e.g., State v. Harris, 290 N.W.2d 645, 650 (Neb. 1980) (Where it is claimed that an attorney is guilty of misconduct in arguing a case to a jury, the record must contain an objection, an adverse ruling and that these matters be made part of the record for review on appeal-absent such a record the court will not consider the assigned error.)
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:
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.
When a petitioner asserts an ineffective assistance of counsel claim, the two-pronged 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 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:
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 statecourt 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 Antiterrorism and Effective Death Penalty Act (AEDPA); Petitioner could not establish that Petitioner's appellate counsel was ineffective, as appellate counsel was entitled to the "benefit of the doubt").
As the Eighth Circuit Court of Appeals, in an en banc decision, has said:
Willett v. Lockhart, 37 F.3d 1265, 1273 (8th Cir. 1994) (applying Stone v. Powell, 428 U.S. 465, 482, 494 (1976)).
Having set forth the applicable law, and the basic background, I will now address each claim in turn.
Claim One is fundamentally predicated on the Fourth Amendment and challenges the stop, search and seizure. It is Stone-barred because it is clear from the record that the Nebraska courts provided Bowman with a full and fair hearing on the matter and there is absolutely no evidence to establish, or reason to believe, that there was an unconscionable breakdown in the state-court mechanism for considering all of Bowman's Fourth Amendment claims.
To the extent that Claim One raises an issue potentially outside of the Fourth Amendment-such as a due process argument that Bowman was unlawfully arrested when he was driven to the tire shop and not provided Miranda warnings prior thereto-I defer to the judgment of the Nebraska Court of Appeals:
(Filing no. 10-3 at CM/ECF p. 9.)
As for the second claim-that the trial court received into evidence the seized cocaine with its chain of custody tainted by law enforcement's violation of federal law-I defer to the Court of Appeals on this frivolous argument. Bowman argued that because the state troopers mailed the suspected drugs to the lab via certified mail that this mailing violated federal criminal law and broke the chain of custody as a result. But as the Nebraska Court of Appeals correctly held 21 U.S.C. § 863
As for the third claim-the trial court erred in allowing Vicky Cowan to testify to the weight of the seized cocaine-I agree with Respondent that no federal issue is or was presented since the essence of the argument related to Nebraska's foundational requirements for admitting results using measuring devices like a scale. But even if one were to review the Court of Appeals ruling on some sort of due process grounds and one further assumes that Bowman fairly presented the third claim as a federal constitutional claim, the well-reasoned opinion denying the claim by the Court of Appeals is due deference. As the Nebraska Court of Appeals explained in detail, the scale had been properly calibrated according to the expert testimony of Ms. Cowan (who is well known to me from her testimony in countless federal drug cases). (Filing no. 10-3 at CM/ECF p. 11.)
Regarding Claim Four-the trial court failed to grant Petitioner's motion for a mistrial based on the prosecutor's use of Petitioner's post-arrest silence and request for counsel as evidence of his guilt-it was defaulted since Bowman failed to present a record of the closing argument where the prosecutor's allegedly improper remarks were made.
As for Claim Five, it must be denied because the state district judge and the Nebraska Court of Appeals carefully examined the ineffective assistance of counsel claim-trial counsel (1) failed to have the official court reporter make a record of the closing arguments and (2) gave unreasonable advice to Petitioner to not testify at trial-under prevailing federal constitutional standards. (Filing no. 10-13 at CM/ECF pp. 2-11 (trial court); filing no. 10-4 at CM/ECF pp. 13 (court of appeals).) Therefore, giving the Nebraska courts the deference they are due, Bowman is not entitled to relief. A few brief observations regarding the reasoning of the Nebraska courts on the claim of ineffective assistance of counsel are in order.
As to the first argument, the Nebraska Court of Appeals observed that a cautionary and limiting instruction was promptly provided by the district judge, and, assuming for the sake of argument the trial counsel's performance was deficient in failing to request the closing arguments be recorded, Bowman was not able show prejudice under Strickland. This was, according to the Court of Appeals, particularly true given the strong evidence against Bowman such as the inconsistency between the dates on the rental agreement and his direction of travel, inconsistent explanations for the trip and the nature of their relationship given by Bowman and his passenger, evidence of alterations to the van, Bowman's change in demeanor when asked about drugs, his explanation for the extra spare tire in the van, and his attempt to destroy or conceal the consent to search form after the search was underway.
As to the second argument, after noting that the trial judge questioned Bowman at length about his decision not to testify, the Court of Appeals found that his decision not to testify was voluntary, that he had adequate time to consult with his lawyers, and that Bowman had in fact told the trial court he was satisfied with his counsel's performance at the time. Since Bowman failed to provide the post-conviction courts with what his testimony would have been, Bowman could not establish that the outcome of the proceedings would have been different. In other words, Bowman could not show prejudice.
Lastly, 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 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, 484-485 (2000). I have applied the appropriate standard and determined that Petitioner is not entitled to a certificate of appealability.
IT IS ORDERED that the habeas corpus petition (filing no. 1) is denied and dismissed with prejudice. No certificate of appealability has been or will be issued. Judgment will be issued by separate document.