Opinion
No. 8:97CV73.
February 2000.
REPORT AND RECOMMENDATION
This matter is before the magistrate judge pursuant to General Order 97-10 for a report and recommendation on the petition of Jeffrey A. Jones for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons explained below, I shall recommend that the petition be denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
On January 7, 1994, petitioner Jones and a codefendant, Bennie Utter, were convicted by a jury of assault in the first degree and use of a firearm to commit a felony. Jones was sentenced to 3 to 6 years' imprisonment for the assault conviction and 3 years' imprisonment for the use of a firearm conviction, sentences to be served consecutively. His convictions were affirmed on direct appeal in State v. Jones, No. A-94-346, 1995 WL 33346 (Neb.App., Jan. 24, 1995). The Douglas County District Court denied Jones' motion for postconviction relief. Jones' appeal of that decision was dismissed for lack of jurisdiction because Jones did not pay the docket fee or timely submit a poverty affidavit in lieu of the docket fee. Jones informs the court that his appeal was not initially docketed because the district court failed to forward his application to proceed in forma pauperis to the appellate court.
A. FACTS SUPPORTING CONVICTION
During the early morning hours of June 9, 1993, Utter's roommate, Richard Podraza, was beaten up by three black men at Village Gate Apartments in Omaha. Utter, Richard Podraza and Edward Podraza lived in a house at 4212 So. 37th Street in Omaha. Richard Podraza was taken home at about 1 a.m. and asked a neighbor to call the police. Officer Joseph Bosilevac responded to this call. When Officer Bosilevac arrived, Utter and Jones were with Podraza at the South 37th Street residence. Officer Bosilevac observed a clean, late-fifties model blue pickup parked at the residence. According to Officer Bosilevac, Utter and Jones were upset about the assault on Richard Podraza. Officer Bosilevac testified at trial that he told Utter and Jones to calm down and let the police handle the matter. He further requested that they not drive anywhere because they had been drinking. Officer Bosilevac took Richard Podraza to the hospital.
Jones and Utter then drove Jones' pickup truck to the Village Gate Apartments to find the people who assaulted Richard Podraza. Patrick Stewart, looking from his apartment window, saw a man with a gun. Stewart was shot when he and two other men went outside to investigate.
Several people at Village Gate Apartments called the police and gave descriptions of the suspects and their pickup truck. These descriptions were dispatched over the police radio. The broadcast described the suspects in the shooting as two white males driving an old blue pickup. Officer Bosilevac heard the dispatch and radioed that he had talked with two men matching this description earlier in the evening at 4212 So. 37th Street while there to assist an assault victim and that they had a vehicle matching the description.
Jones and Utter were arrested by another officer at 4212 So. 37th Street at 2:11 a.m. Police officers began to search for the weapon used in the shooting and found a bat and a sledge hammer handle in Jones' truck. In the back yard, by a cellar door, hidden in grass, they found a shotgun.
Witnesses transported to 4212 So. 37th Street identified Utter and Jones as the suspects in the shooting. Jones was transported to Village Gate Apartments for further identification. Eventually, Jones was taken down to the police station and placed in an interrogation room. After being read his Miranda rights, Jones denied involvement in the shooting, stated that he did not know why he was there, and stated that he was not the shooter. Interrogation stopped when Jones requested an attorney.
B. ISSUES RAISED ON DIRECT APPEAL
Jones timely appealed his convictions to the Nebraska Court of Appeals, assigning the following errors:
(1) he was arrested without a warrant and without probable cause in violation of the 4th and 14th Amendments to the U.S. Constitution;
(2) the trial court erred in failing to suppress his custodial statements that were the fruit of an unlawful arrest, the physical evidence (a bat and a sledge hammer handle) seized pursuant to an illegal search of his vehicle, and the physical evidence (the shotgun) seized during an unlawful search of the curtilage area of the residence occupied by codefendant Utter, Richard Podraza and Edward Podraza;
(3) the witnesses' identification of Jones resulted from an impermissibly suggestive showup procedure which violated his right to due process;
(4) the trial court erred in overruling Jones' motion to sever, resulting in Jones being prejudiced by statements admissible only against his codefendant, Utter; and
(5) the sentences imposed by the trial court were excessive.
The Court of Appeals found that Jones did not raise any Fourth Amendment objections at trial with respect to the suppression of custodial statements and the items found in Jones' vehicle. Instead, Jones objected to testimony regarding the search of the vehicle and the offer of the bat and sledge hammer handle found during the search on grounds of relevancy, materiality, and unfair prejudice. No objection was made at trial regarding the custodial statements. Even assuming that these Fourth Amendment issues were raised in a pretrial motion to suppress, the Fourth Amendment objections were not made at trial and were not properly preserved for appeal. In any event, the police had probable cause to arrest Jones.
Regarding Jones' other assignments of error, the Court of Appeals affirmed the convictions and sentences, finding that Jones did not have standing to object to the search of his codefendant's residence; even assuming that the issue was raised in conjunction with a pretrial motion, Jones did not preserve a 14th Amendment objection to the showup procedure resulting in his identification; the prosecutions were properly joined under Neb. Rev. Stat. § 29-2002(2) (Cum. Supp. 1994); Jones was not unfairly prejudiced by the joinder of prosecutions; and Jones' sentences were not excessive.
C. ISSUES RAISED IN MOTION FOR POSTCONVICTION RELIEF
Jones filed a motion for postconviction relief pursuant to Neb. Rev. Stat. §§ 29-3001 to 29-3004, on the following grounds: (1) eleven instances of ineffective assistance of counsel; (2) the evidence used to convict him was obtained in violation of the Fourth, Fifth, and Fourteenth Amendments to the U.S. Constitution; (3) he was denied the right to a separate trial; (4) statements were obtained in violation of his Miranda rights; (5) evidence of the sledge hammer handle was improperly admitted in violation of his due process rights under the Fifth and Fourteenth Amendments; (6) six instances of ineffective assistance of counsel on direct appeal.
The Douglas County District Court denied Jones' motion for postconviction relief as follows:
Ground 1: The alleged errors of trial counsel were known to Jones at the time of his direct appeal and were capable of being raised on direct appeal, but were not raised on direct appeal. UnderState v. Keithley, 238 Neb. 966, 473 N.W.2d 129 (1991), Jones was procedurally barred from raising those issues in a postconviction proceeding.
Ground 2: Denied for the same reasons given by the Nebraska Court of Appeals.
Ground 3: Denied for the same reasons given by the Nebraska Court of Appeals.
Ground 4: Procedurally barred because the issue could have been raised on direct appeal but was not.
Ground 5: Procedurally barred because the issue could have been raised on direct appeal but was not.
Ground 6: Jones failed to show that appellate counsel's failure to raise the Miranda issue was detrimental to him and how, in reasonable probability, inclusion of this issue would have changed the result on direct appeal. The district court also noted that appellate counsel did argue the search issues and other alleged evidentiary errors.
D. ISSUES PRESENTED IN THIS PROCEEDING PURSUANT TO § 2254
Jones' petition (#1) and amended petition (#41) raise the following claims for relief:
Claim 1: Jones received ineffective assistance of trial counsel in that counsel failed to effectively cross-examine or impeach the State's fact and expert witnesses and expose the State's use of false or perjured testimony. Jones also contends that trial counsel was ineffective in failing to fully investigate the case, failing to record opening and closing statements, failing to question jurors individually during voir dire, failing to object at trial to evidence obtained in violation of Jones' Fourth and Fifth Amendment and Miranda rights, failing to aggressively argue Jones' motion to sever, and failing to object to the admission of the shotgun in evidence because its seizure violated the Plain View Doctrine. (#1 pp. 6-7, pp. 11-12; #41 pp. 1-11, pp. 46-47).
Claim 2: The shotgun was seized from Utter's back yard without a warrant in violation of the Fourth Amendment. The seizure of the shotgun also violated the "Plain View Doctrine" in that Jones and Utter were arrested in the front yard of Utter's home and the gun could not be seen from the site of the arrest. Thus, the shotgun was not in "plain view" due to its being hidden in tall weeds "in pitch black darkness." Evidence was also seized from Jones' truck without a warrant, in violation of Jones' Fourth Amendment rights. (#1 pp. 7-8; #41 pp. 12-20).
Claim 3: Jones was denied the right to a separate trial and was unfairly prejudiced by a joint trial with Utter due to the jury's inability to compartmentalize the evidence offered against each defendant. (#1 pp. 8-9; #41 pp. 20-35).
Claim 4: Jones' custodial statements were taken in violation ofMiranda v. Arizona and were improperly admitted in evidence at trial. (#1 p. 9; #41 pp. 35-45).
Claim 5: Inadmissible prejudicial evidence (the bat or ax handle) was presented to the jury in violation of Jones' Fifth and Fourteenth Amendment rights. (#1 p. 9; #41 pp. 45-46).
Claim 6: Ineffective assistance of appellate counsel in that counsel failed to argue that the shotgun was seized in violation of the Plain View Doctrine; failed to argue that trial counsel was ineffective; failed to raise a Miranda argument on appeal; and failed to designate the briefs and transcript of the suppression hearing as part of the record on appeal. Appellate counsel also acted ineffectively in raising a Fourth Amendment argument regarding the admission of the bat or ax handle; instead, the only proper ground for appeal would have been that this evidence was irrelevant and prejudicial. (#41 p. 46).
Claim 7: "Court error in refusing to include in record for appeal certain court records," i.e., the record of the suppression hearing. (#1 pp. 11-12; #41 p. 46).
Claim 8: The cumulative effect of due process violations led to an unfair trial. (#1 p. 8; #41 p. 46).
II. LEGAL ANALYSIS
Under 28 U.S.C. § 2254(a), the federal district court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." When a criminal matter is commenced in a state court, our system of dual federalism requires that state courts have the opportunity in the first instance to protect the rights of the accused against infringement of both their state and federal rights. See, e.g.,Krum v. Thomas, 774 F. Supp. 563, 564 (D.Ariz. 1991). Accordingly, the federal courts may not grant an application for writ of habeas corpus under § 2254 unless, inter alia, the applicant has exhausted the remedies available in the courts of the State; or there is an absence of available State corrective process; or circumstances exist that render such process ineffective to protect the rights of the applicant. 28 U.S.C. § 2254(b)(1)(A) and (B).
In general, petitioner's failure to appeal the district court's postconviction decision to the Nebraska Court of Appeals (and then, if appropriate, a petition for further review in the Nebraska Supreme Court) would result in a finding of procedural default. In this case, however, Magistrate Judge Piester found that petitioner had shown sufficient cause to excuse his procedurally defaulted grounds. See n. 1, supra. I shall, therefore, consider the merits of petitioner's claims 1 through 8, described above in conjunction with petitioner's presentment of those claims to the state district court.
Claim 1: Ineffective Assistance of Counsel
The right to effective assistance of counsel "is a fundamental right of criminal defendants; it assures the fairness, and thus the legitimacy, of our adversary process." Kimmelman v. Morrison, 477 U.S. 365, 374 (1986). To prevail on a claim of ineffective assistance of counsel, a defendant must show that the performance of his attorney was deficient and that the deficient performance prejudiced his or her defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Wilson v. Armontrout, 962 F.2d 817 (8th Cir.),cert. denied, 506 U.S. 942 (1992). To make the first portion of this showing, the defendant must show that "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. In this regard, judicial scrutiny of counsel's performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Id. at 687-91. The court must indulge a strong presumption that counsel's conduct falls within the range of reasonable professional assistance. Id. To meet the second portion of the Strickland test, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. See also Smith v. Rogerson, 171 F.3d 569, 572 (8th Cir. 1999); Mansfield v. Dormire, ___ F.3d ___, 2000 WL 127096 at *3 (8th Cir., Feb. 4, 2000); Ervin v. Delo, 194 F.3d 908 (8th Cir. 1999); Parker v. Bowersox, 188 F.3d 923 (8th Cir.), petition for cert. filed, Dec. 17, 1999. The federal courts do not set aside a state conviction or sentence solely because the outcome would have been different but for counsel's error. Rather, the focus is on whether counsel's deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair. Mansfield v. Dormire, 2000 WL 127096 at *3-4.
Petitioner's allegations of ineffective assistance of counsel are found at #1, pages 6, 7, 11, and 12; and #41, pages 1-11, 46, and 47. Many of the specific allegations in #41 were not presented to the state district court in petitioner's postconviction proceeding and, therefore, cannot be raised in this proceeding. Petitioner's allegations do not tend to show that trial counsel's performance was deficient or that the result of the trial was fundamentally unfair. Petitioner generally fails to demonstrate what permissible alternative actions should have been taken or how alternative actions would have changed the outcome of the proceeding. Rather, the pleadings demonstrate only that petitioner now disagrees with trial counsel's strategy, and disagrees with the jury's interpretation of the evidence.
Petitioner has not shown that the actions complained of were anything other than strategic decisions. Thus, the court declines to "second-guess" counsel's strategic decisions in this § 2254 proceeding and finds that petitioner's claims of ineffective assistance fail under Strickland. See Nielsen v. Hopkins, 58 F.3d 1331, 1337 (8th Cir. 1995).
Claim 2: Fourth Amendment Claims Fourth Amendment claims may not be raised in a petition for habeas corpus when the state has afforded the petitioner a full and fair opportunity to litigate those claims. Stone v. Powell, 428 U.S. 465 (1976). Under Stone v. Powell,
a federal habeas court considering a state prisoner's claim alleging a Fourth Amendment violation should abstain from reviewing the state court records to determine if the state's factual findings are fairly supported by the record as a whole. . . . Rather, the proper inquiry is whether "the State has provided an opportunity for full and fair litigation" of the claim.Willett v. Lockhart, 37 F.3d 1265, 1270 (8th Cir. 1994) (en banc),cert. denied, 514 U.S. 1052 (1995); accord Poole v. Wood, 45 F.3d 246, 249 (8th Cir.), cert. denied, 515 U.S. 1134 (1995). "[A]n error of law in the state court's decision does not by itself provide grounds for habeas relief in a Fourth Amendment case." Id. Under Eighth Circuit precedent, an "opportunity" for full and fair litigation of Fourth Amendment claims does not depend upon whether the petitioner has taken advantage of the state process available.Id. at 1271. In Willett, the Eight Circuit adopted the following test:
[A] Fourth Amendment claim is Stone-barred, and thus unreviewable by a federal habeas court, unless either the state provided no procedure by which the prisoner could raise his Fourth Amendment claim, or the prisoner was foreclosed from using that procedure because of an unconscionable breakdown in the system. . . . As Stone makes clear, Fourth Amendment claims asserted by state prisoners in federal habeas petitions are to be treated differently from other constitutional claims because of the nature and purpose of the exclusionary rule and the incremental value gained from its implementation in the federal habeas situation compared with the costs it imposes upon the administration of justice. The federal courts on habeas review of such claims are not to consider whether full and fair litigation of the claims in fact occurred in the state courts, but only whether the state provided an opportunity for such litigation.37 F.3d at 1273. "A determination of whether there has been a breakdown in the state's procedure does not require a probing review of the state court record, either of the factual findings pertaining to the petitioner's search-and-seizure claims or of the application of Fourth Amendment principles to those facts." Id. at 1272. Nor does such a determination "require any more searching review of the state appellate court record than it does of the trial court record." Id.
The record in this case shows that petitioner was given the opportunity to fully argue all Fourth Amendment issues in the state courts. I shall, therefore, recommend that the petition be denied with respect to Claim 2.
Claim 3: Prejudice Due to Joint Trial
Nebraska law permits a joint trial if the defendants "are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." Neb. Rev. Stat. § 29-2002(2) (1992). The type of claim raised by the petitioner arises under the due process clause of the Fourteenth Amendment. However,
A habeas petitioner is not entitled to relief on the grounds that he was entitled to a severance unless he can show that a joint trial was fundamentally unfair. See Jenner v. Class, 79 F.3d 736, 741 (8th Cir.), cert. denied, [ 519 U.S. 874] (1996). Fundamental unfairness is shown where mutually antagonistic defenses compromised a specific trial right or prevented the jury from making a reliable determination of guilt or innocence. See id. at 741-42. Mutually antagonistic defenses are those which force the jury to disbelieve the core of one defense in order to believe the core of the other. See United States v. Gutberlet, 939 F.2d 643, 645-46 (8th Cir. 1991).
Hood v. Helling, 141 F.3d 892, 896 (8th Cir.), cert. denied, 119 S.Ct. 516 (1998).
The Nebraska Court of Appeals found that joinder pursuant to § 29-2002(2) was proper in this case and that petitioner was not unfairly prejudiced by the consolidated trials:
All of the Clark safeguards were present at the joint trial of Jones and Utter. Utter did testify at the trial. Jones could and did cross-examine Utter. The trial court instructed the jury to consider Utter's statement only with respect to him and not to consider the statement with respect to Jones. For the above reasons, the trial court did not abuse its discretion in consolidating the trials of Jones and Utter.State v. Jones, 1995 WL 33346 at *9. The issue was also decided against petitioner in his state postconviction proceeding. I agree with the state courts and find that the joint trial was not fundamentally unfair to petitioner.
Claim 4: Miranda Violation
Petitioner argues that his custodial statements were taken in violation of Miranda v. Arizona and were improperly admitted in evidence at trial. The state postconviction court found that this argument was procedurally barred because petitioner failed to raise it on direct appeal. The Miranda claim is procedurally defaulted, and petitioner is barred from raising the Miranda argument in this § 2254 proceeding unless he can demonstrate (1) cause for the default and (2) actual prejudice as a result of the alleged violation of his Miranda rights. See Rehbein v. Clarke, 94 F.3d 478, 484 (8th Cir. 1996).
In order to show cause for his default on his ineffective assistance claims, petitioner must demonstrate "some external impediment which prevented him from raising the issue in state court." Krimmel v. Hopkins, 56 F.3d 873, 876 (8th Cir.), cert. denied, 516 U.S. 1015 (1995). In this regard, petitioner argues that appellate counsel was ineffective in failing to raise theMiranda argument on direct appeal.
In the present case, both petitioner and his appellate counsel were aware at the time of appeal of any facts tending to support aMiranda claim.
"[C]ause" under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him: "[W]e think that the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." . . . . For example, "a showing that the factual or legal basis for a claim was not reasonably available to counsel, . . . or that `some interference by officials' . . . made compliance impracticable, would constitute cause under this standard." . . . .
Coleman v. Thompson, 501 U.S. at 753.
I conclude that petitioner has failed to show sufficient cause and prejudice to lift the procedural bar on hisMiranda claim.
Claim 5: Fifth and Fourteenth Amendment Violations
Defendant argues that inadmissible prejudicial evidence, i.e., the bat or ax handle, was presented at trial, thus violating his Fifth and Fourteenth Amendment due process rights. As discussed above in conjunction with Claim 2, the admissibility of that item in evidence raises a Fourth Amendment issue which is barred in this proceeding by Stone v. Powell. Since petitioner had a full and fair opportunity to litigate his Fourth Amendment claims in state court, I find that he was not denied his due process rights under the Fifth and Fourteenth Amendments.
Claim 6: Ineffective Assistance of Appellate Counsel
Claims of ineffective assistance of appellate counsel are reviewed under Strickland v. Washington, 466 U.S. 668 (1984). To prevail on this claim, petitioner must show both that his appellate counsel's performance was objectively unreasonable and that there is a reasonable probability that the outcome of his appeal would have been different if counsel had performed the actions specified. See Armstrong v. Gammon, 195 F.3d 441, 444 (8th Cir. 1999). Attorneys are not required to raise every colorable claim on appeal. Id. Unless there is evidence to the contrary, the court assumes that counsel's decision not to raise a claim on appeal was a strategic decision to emphasize stronger claims at the expense of weak ones.Id.
The record shows that appellate counsel assigned trial errors relating to defendant's warrantless arrest, suppression of evidence, identification procedures, severance, and sentencing. In light of the legal standards cited above, I find that petitioner has not shown that appellate counsel's performance was objectively unreasonable or that there is a reasonable probability that he would have prevailed on appeal if his attorney had acted differently.
Claim 7: Court Error
Petitioner claims that his rights were violated because of court error in refusing to include certain court records in the appellate record, i.e., the record of the suppression hearing. (See #1 pp. 11-12; #41 p. 46). This issue was not raised in the state postconviction proceeding, is procedurally barred, and will not be considered by this court. See 28 U.S.C. § 2254(b)(1)(A).
Claim 8: Cumulative Effect of Due Process Violations
Finally, petitioner argues that the cumulative effect of due process violations led to an unfair trial in this case. In light of the court's resolution of petitioner's Claims 1 through 7, this claim must also be denied.
III. RECOMMENDATION
For the reasons explained above,
IT IS RECOMMENDED that the petition of Jeffrey A. Jones for writ of habeas corpus pursuant to 28 U.S.C. § 2254 be denied.
Pursuant to NELR 72.4, any objection to this Report and Recommendation shall be filed with the Clerk of the Court within 10 days after being served with a copy of this Report and Recommendation. Failure to timely object may constitute a waiver of any such objection. The brief in support of any objection shall be delivered to the Hon. Thomas M. Shanahan at the time of filing such objection. Failure to submit a brief in support of any objection may be deemed an abandonment of the objection.