RICHARD G. KOPF, Senior District Judge.
Petitioner has filed an amended petition seeking a writ of habeas corpus (filing no. 4). I now deny the petition and dismiss it with prejudice. No certificate of appealability will be issued. My reasons for doing so are set forth below.
Condensed and summarized for clarity, the claims asserted by Petitioner regarding the state misdemeanor case in the County Court of Lancaster County, Nebraska (county court # CR 14 0017008, appeal to district court # CR-15-552 and appeal to the Nebraska Court of Appeals # A-17-728) are set forth below:
Respondents have filed an answer (filing no. 7), the state court records (filing no. 6), and a brief (filing no. 8). Petitioner has filed a response and brief (filing no. 9; filing no. 10) as well. Mostly, Respondents argue that the claims have been procedurally defaulted without excuse. Petitioner's response and brief makes no (or at least very little) effort to address the procedural default issue.
1. After a bench trial, Yanga was convicted of misdemeanor domestic assault. At the trial, Petitioner was represented by Abby Romshek and Todd Molvar.
2. On March 9, 2015, he was sentenced to 60 days jail to run consecutive to any other sentence.
3. Yanga appealed to the district court, but did not file a statement of errors, so his conviction was reviewed for plain error, and none were found. As a result, the district court affirmed his conviction and sentence. (Filing no. 6-6 at CM/ECF pp. 40-47.) Douglas Kerns represented Petitioner.
4. On direct appeal to the Nebraska Court of Appeals, Yanga assigned as error that the district court erred in (1) not finding that the county court erred and abused its discretion and deprived Yanga of his right to testify by overruling his motion to withdraw his rest; (2) not finding counsel was ineffective for not requesting a separate hearing to determine whether the statements made by Yanga to the police were admissible; (3) not finding that counsel was ineffective for not requesting a presentence investigation; (4) not finding that the county court erred in denying Yanga's motion to dismiss; (5) not finding that the cumulative effect of errors made by the county court and/or ineffective assistance of counsel amount to a violation of Yanga's right to a fair trial; (6) not finding that the county court erred and abused its discretion in finding him guilty when such finding was not supported by the evidence; and (7) not finding that the county court imposed an excessive sentence. Once again, Douglas Kerns represented Petitioner.
5. Yanga's conviction was affirmed on direct appeal by the Nebraska Court of Appeals in a Memorandum Opinion filed May 13, 2016. (Filing no. 6-2.) The Court of Appeals ruled that most of the seven assignments of error save for two were defaulted because Yanga failed to provide the district court (then serving as an appellate court reviewing the county court's rulings) with a timely statement of errors. Regarding the two claims that escaped the foregoing default, the court considered and rejected the argument that the county court erred by failing to allow Yanga to withdraw his rest so that he might change his mind and testify. As for the claim that trial counsel was ineffective because counsel allegedly failed to seek suppression of statements that Yanga made to the police, the Court of Appeals found that this alleged error was defaulted for the separate and additional reason that Yanga had not briefed and argued that matter to the Court of Appeals despite having assigned it as error. Yanga's petition for further review was denied by the Nebraska Supreme Court on July 13, 2016. (Filing no. 6-1 at CM/ECF p. 2.) The petition was limited to one issue. (Filing no. 6-3.) That issue was that the county judge had abused his discretion in refusing to allow Petitioner to withdraw his rest and the Court of Appeals erred by not so holding.
6. On September 19, 2016, Yanga filed a pro se post-conviction action, alleging essentially the same issues as were raised in his direct appeal. (Filing no. 6-15.)
7. The district court denied an evidentiary hearing, and denied postconviction relief on June 5, 2017. (Filing no. 6-15 at CM/ECF pp. 16-21.) The court ruled:
Id. at p. 19. (Italics added.)
8. The Nebraska Court of Appeals summarily affirmed the denial of postconviction relief on November 21, 2018. (Filing no. 6-12 at CM/ECF p. 2.) It ruled that:
Id.
9. Yanga filed a petition for further review, which was denied by the Nebraska Supreme Court on December 19, 2018. (Filing no. 6-12 at CM/ECF p. 2.) The mandate issued on January 3, 2018. (Id.)
10. Yanga filed his first federal habeas petition on February 26, 2018. (Filing no. 1.)
The facts that supported the conviction in this matter were briefly summarized by the Court of Appeals when denying relief on the direct appeal. The court stated:
(Filing no. 6-2 at CM/ECF pp. 1-3)
There are two strands of law that are applicable here, and they are (1) exhaustion and procedural default and (2) deference. I elaborate upon those concepts 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)
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).
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.
I agree with Respondents that all four claims are procedurally defaulted and that no excuse has been presented that would allow me to ignore these defaults. However, my analysis is somewhat more intricate. There are various reasons for the defaults and various reasons why the defaults cannot be excused. Moreover, as to the one issue that was resolved on the merits, but may not be a part of the claims asserted by Petitioner here, the deference owed the Nebraska Court of Appeals trumps that one complaint assuming for the sake of argument that it is fairly raised in this court and not procedurally defaulted.
On direct appeal, Petitioner largely failed to abide by Nebraska law regarding perfecting a direct appeal from the county court to the district court and then to the Court of Appeals. Only one argument was properly presented to the Nebraska Supreme Court during the direct appeal, and that argument dealt with the county judge's refusal to allow Yanga to withdraw his rest. Therefore, Nebraska has been denied "one complete round" of direct appellate review for all other issues raised by Yanga.
The pro se post-conviction action was a rehash of the direct appeal issues and, importantly, Yanga asserted only conclusions of law and fact that were insufficient to make out a Constitutional violation. Thus, any attack on his appellate counsel for his failure to attack trial counsel was defaulted in the post-conviction litigation. If trial counsel performed adequately or Petitioner suffered no prejudice, then appellate counsel could not be ineffective for failure to press those claims properly. As to other issues, under Nebraska law, a post-conviction action cannot substitute for a direct appeal where, as here, Yanga had separate appellate counsel and where, as here, the issues were known at the time of the direct appeal.
In short, Petitioner now has no available remedy in the Nebraska courts that would allow him to cure these defaults. His claims are procedurally defaulted as a result.
If it could be argued that the defaults that occurred during the direct appeal were the fault of separate appellate counsel and such errors constituted "cause" to excuse the procedural default notwithstanding the adverse post-conviction ruling, Petitioner would still have to show "prejudice" assuming the cause and prejudice standard was applied. "To demonstrate procedural bar prejudice, [Petitioner] `must shoulder the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" Armstrong v. Kemna, 590 F.3d 592, 606 (8th Cir. 2010) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)).
For example, both the post-conviction district court judge and the Court of Appeals that summarily affirmed the denial of post-conviction relief considered essentially the same issues presented to the Court of Appeals on direct appeal and found that Yanga had asserted insufficient allegations of fact and law in the post-conviction action regarding the actions of trial counsel. In short, Yanga has shown no prejudice for the alleged errors of his appellate counsel for failing to adequately attack trial counsel.
Additionally, there is no reason to believe Petitioner is actually (meaning factually) innocent or that some miscarriage of justice took place. I have examined the trial transcript. The evidence was sufficient to convict the Petitioner beyond a reasonable doubt. Moreover, Yanga's assertion that his victim injured herself after he admittedly grabbed her and restrained her from leaving the home is preposterous.
I specifically pause to address the only issue that was resolved by the Court of Appeals on the merits and the only issue presented to the Nebraska Supreme Court on direct appeal. That issue was the county court's refusal to allow Petitioner to withdraw his rest and testify. While I wonder whether this issue is fairly covered by any of the claims in this federal case, there is, in any event, nothing about that decision that entitles Petitioner to relief.
On direct appeal, the Court of Appeals held that the county court did not abuse its discretion in refusing Petitioner's motion to withdraw his rest in order to testify. The Court Appeals found that the motion to withdraw Yanga's rest was made after he was found guilty. The Court of Appeals summarized its analysis this way:
(Filing no. 6-2 at CM/ECF p. 8.)
To the degree that a federal question is presented because Yanga was belatedly asserting his Constitutional right to testify and to the degree that this issue may properly be considered as part of one or more of the claims asserted by Petitioner in this case, the federal law is plainly against Petitioner and he loses on the merits. See, e.g., United States v. Martinez, 872 F.3d 293, 298-301 (5
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. 4) is denied and dismissed with prejudice. No certificate of appealability has been or will be issued. Judgment will be issued by separate document.
