Opinion
4:00CV3031.
February 14, 2001
MEMORANDUM AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS AND ORDER ON PETITIONER'S THIRD REQUEST FOR APPOINTMENT OF COUNSEL
This matter is before me on Ricky R. Davenport's Petition for Writ of Habeas Corpus (filing 1). The respondent has filed an answer pursuant to the order of the magistrate judge, filing 10, and has filed state court records that he has deemed relevant to the claims raised by the petitioner (filing 12). I have reviewed the briefs submitted by both the petitioner and the respondent, along with the records from the Nebraska courts which have been filed by both parties. For the reasons discussed below, I shall grant the petitioner leave to file a supplemental brief.
I. BACKGROUND
A jury found the petitioner guilty of manslaughter, using a firearm in the commission of a felony, and "felon in possession of a firearm." At an enhancement hearing following the trial, the petitioner was determined to be an habitual criminal. The petitioner was sentenced to consecutive terms of imprisonment of 25 years for the manslaughter conviction, 20 years for the use of a firearm in the commission of a felony conviction, and 20 years for the felon in possession of a firearm conviction.
The following brief summary of facts is taken from the opinion of the Nebraska Court of Appeals in State v. Davenport, No. A-94-009, 1994 WL 642698 (Neb App. Nov. 15, 1994). On September 21, 1992, Davenport, his wife, and a friend went to Clyde's Parkway, a bar located in Omaha, Nebraska. Late in the evening, a fight broke out involving the petitioner and several other men in the bar. The petitioner gained possession of a gun that had fallen on the floor. The gun fired twice as several people struggled to control the petitioner, and one of the bar patrons was shot once in the head. The victim died the following day from this wound.
The petitioner testified at trial and told a different version of the evening's events. He claimed that when the fight began, three or four people surrounded him and were trying to hit and push him. He fell to the floor where he was kicked in the leg and arm. While lying on the floor, he spied and reached for a gun that he claimed had been dropped by another person. The petitioner testified that he saw a man coming at him, and when the man was nearly on top of him, he pointed the gun and fired it one time. He claims he saw that his shot hit the man, who fell to the floor. The discharge of the weapon scattered the group of men surrounding the petitioner. The petitioner's defense was based upon a theory of self-defense and "rat packing," which is a practice whereby disliked bar patrons are removed from a bar and beaten by a group of bouncers and bartenders in order to discourage those patrons from returning to the bar.
Following his conviction and sentencing, the petitioner appealed to the Nebraska Court of Appeals. Briefs were filed on behalf of the petitioner by the petitioner's counsel and by the petitioner pro se. The brief filed by counsel set forth the following claims for relief: (1) the trial court erred by sustaining the State's motion in limine to prevent the petitioner from producing evidence regarding a witness's alleged attempt to escape from the scene of the crime and avoid investigation by the police, and to prevent the petitioner from commenting on this witnesses' absence at trial; (2) the court erred by allowing the State to present testimony regarding the nature of the petitioner's own injuries; (3) the court erred by allowing testimony regarding the victim's background; (4) the court erred by admitting into evidence an autopsy photograph of the victim; (5) the court erred by overruling the petitioner's motion for a mistrial following the State's cross-examination of a defense witness about the petitioner's character; (6) the court erred by overruling the petitioner's objections to the State's closing argument and by failing to grant the petitioner's motion for a mistrial based on improper statements made by the State during its closing argument; (7) the court erred by denying the petitioner's motion for a new trial based on the State's improper cross-examination of the petitioner; and (8) the petitioner is entitled to a new trial because in the aggregate, the errors committed at trial denied the petitioner of a fair trial. The petitioner's pro se brief added the following claims: (9) the petitioner's Sixth Amendment rights to compulsory process and confrontation of witnesses were violated by the unavailability of a material eyewitness favorable to the defense, along with his "Fourteenth Amendment due process right to present a complete defense;" and (10) the court failed to instruct the jury adequately on the essential elements of the charged offense, in violation of the petitioner's rights under the Sixth and Fourteenth Amendments.
The Nebraska Court of Appeals rejected each of these claims and affirmed the petitioner's conviction. State v. Davenport, No. A-94-009, 1994 WL 642698 (Neb App. Nov. 15, 1994). The petitioner then filed a petition for further review with the Nebraska Supreme Court. In fact, it appears that two petitions for further review were actually filed: one by the petitioner's counsel, Thomas Kenney and Kelly Breen, and one by the petitioner pro se. The petition filed by counsel raised the arguments numbered (1), (2), and (7) above, and the pro se petition raised arguments (9), (10), (3), (2), (7), (6), and (8) in that order. Both petitions for further review were denied by the Nebraska Supreme Court in separate orders dated January 25, 1995.
Next, the petitioner filed two "petitions for relief in a separate proceeding," which were ultimately dismissed as untimely second-tier collateral attacks upon prior convictions that were used to enhance the petitioner's sentence in the present case.State v. Davenport, 5 Neb. App. 355, 559 N.W.2d 783 (1997). The petitioner then filed a pro se motion for postconviction relief, setting forth twelve claims based on allegations of ineffective assistance of counsel, prosecutorial misconduct, and error by the trial court. This motion was denied by the district court without a hearing. After obtaining the assistance of counsel, Peter Blakeslee, the petitioner appealed this decision to the Nebraska Court of Appeals, specifically arguing that his trial attorney provided ineffective assistance in the following respects: (1) failing to request a jury instruction to the effect that the petitioner would be justified in using force to defend himself from the attacks of persons other than the victim; (2) failing to request a jury instruction that defined "recklessly" for the purposes of the offense of manslaughter; (3) failing to obtain the services of an expert witness to support the defendant's version of the shooting; (4) failing to object, move to strike, and move for a mistrial in response to testimony by a witness that people were afraid of the petitioner; (5) failing to object, move to strike, and move for a mistrial in response to the prosecutor's characterization of the petitioner as "an obnoxious, gun-toting thug;" (6) failing to object, move to strike, and move for a mistrial in response to the prosecutor's questions to the petitioner about allegations that the petitioner had fired a gun at another bar earlier that evening; (7) failing to attack the petitioner's prior convictions, which formed the basis of his sentence enhancement, in a separate proceeding. The petitioner's brief also argued that the trial court erred by failing to grant the petitioner an evidentiary hearing on his motion for postconviction relief and by finding that the case files and records affirmatively showed that he was not entitled to relief.
The Nebraska Court of Appeals denied this motion. State v. Davenport, No. A-98-571, 1999 WL 703624 (Neb App. Sept. 7, 1999). Once again, the petitioner filed a petition for further review in the Nebraska Supreme Court. However, the petition for further review raised only the argument that the Nebraska Court of Appeals erred in holding that the jury instructions were adequate and proper for the theory of self-defense against a victim who was acting as a part of a group of attackers. The petition for further review was overruled in an order dated January 12, 2000. The present petition for a writ of habeas corpus ensued. The petition sets forth three claims alleged to require issuance of the writ: (1) the Nebraska Court of Appeals was in error when it held that the trial court's decision to allow evidence of the petitioner's own wounds was harmless error; (2) the petitioner's trial attorney provided ineffective assistance by failing to request a proper self-defense jury instruction tailored to the petitioner's "rat packing" theory; and (3) the petitioner's trial attorney provided ineffective assistance by failing to retain an expert to refute the prosecution's theory of the shooting.
II. STANDARD OF REVIEW
An application for a writ of habeas corpus by a state prisoner may be entertained on the ground that that prisoner is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a).
In 1996, the Antiterrorism and Effective Death Penalty Act altered the standard of review in federal habeas corpus cases.See 28 U.S.C. § 2254 (West 1994 Supp. 2000). Under these provisions, when a claim raised in an application for a writ of habeas corpus has been adjudicated on the merits in State court, a federal court may grant habeas relief only if (1) the state court made a "decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) the state court made 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.A. § 2254(d) (West Supp. 2000). 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.A. § 2254(e)(1) (West Supp. 2000). However, a state court's conclusions on mixed questions of law and fact, such as whether counsel rendered effective assistance, are not binding on federal courts to the same extent as factual determinations. Strickland v. Washington, 466 U.S. 668, 698 (1984).
The proper analysis of a claim of ineffective assistance of counsel is described in Strickland v. Washington, 466 U.S. 668 (1984), and it is beyond question that the rule established byStrickland amounts to "clearly established Federal law" for the purposes of § 2254. Williams v. Taylor, 529 U.S. 362, 391 (2000). As explained by the Supreme Court, there are two components to a violation of the right to effective assistance of counsel:
"First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."
To establish ineffectiveness, a "defendant must show that counsel's representation fell below an objective standard of reasonableness." To establish prejudice he "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."Williams v. Taylor, 529 U.S. at 390-91 (quoting Strickland v. Washington, 466 U.S. at 687, 688, 694) (citations omitted).
III. EXHAUSTION OF STATE REMEDIES
The petitioner must exhaust state remedies before a district court may consider a habeas corpus petition. 28 U.S.C. § 2254 (b)-(c).
To satisfy the exhaustion requirement, the petitioner must "fairly present" the federal claims to the state courts to give the state the opportunity to correct any alleged violations of its prisoners' federal rights. Duncan v. Henry, 513 U.S. 364, ___, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995) (per curiam). Presenting a similar state claim to the federal right is insufficient to exhaust state remedies. Id. Instead, the applicant must refer 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." Kelly v. Trickey, 844 F.2d 557, 558 (8th Cir. 1988) (citing Thomas v. Wyrick, 622 F.2d 411, 413 (8th Cir. 1980)).Seiler v. Thalacker, 101 F.3d 536, 538 (8th Cir. 1996). Furthermore, "it is not enough to make a general appeal to a constitutional guarantee as broad as due process to present the `substance' of such a claim to a state court." Gray v. Netherland, 518 U.S. 152, 163 (1996).
Not only must the petitioner present his claim to the state as a federal constitutional claim as described above, but he must also raise his claim at each level of the state's appellate structure:
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, we conclude that 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). I shall briefly examine each of the plaintiff's claims to determine whether the exhaustion requirements as set forth above have been satisfied.
First, I note that the respondent has argued that the plaintiff's first claim, which states that the Nebraska Court of Appeals was in error when it held that the trial court's decision to allow evidence of the petitioner's own wounds was harmless error, fails to set forth a constitutional claim of any kind. The respondent does not argue that the plaintiff has failed to meet the fair presentation requirement for exhaustion, but instead frames his argument in terms of cognizability. However, if in fact the plaintiff has failed set forth a federal constitutional claim in the petition before me, it is likely that he has failed to present this claim to the state courts as a federal constitutional violation, thus triggering the principles of exhaustion discussed above. Therefore, I begin my analysis with a review of the state records to determine whether the state courts were fairly presented with a federal constitutional claim.
The petitioner's first habeas claim was discussed and rejected by the Nebraska Court of Appeals on the petitioner's direct appeal. State v. Davenport, No. A-94-009, 1994 WL 642698 (Neb App. Nov. 15, 1994). The Nebraska Court of Appeals did not discuss the petitioner's claim as if it were faced with a constitutional argument. Id. at *7-8. However, the exhaustion requirement demands only that the petitioner fairly presented the court with a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or a state case raising a pertinent federal constitutional issue in support of his claim. I must turn to the briefs to determine whether such a presentation was made.
This claim was not raised in the petitioner's pro se brief. Instead, it appears in the brief prepared by the petitioner's counsel. (State R. Vol. 20 at 27-29.) The argument refers to no federal constitutional rights, provisions, or federal cases whatsoever. The argument is supported instead by references to Nebraska statutes regarding the rules of evidence and self-defense. See Neb. Rev. Stat. §§ 27-401 to 402, 28-1409. I find that the petitioner's argument in support of his first claim for habeas corpus relief was not fairly presented to the state courts as a federal constitutional claim as required by 28 U.S.C. § 2254(b). Therefore, the exhaustion requirements are not met with respect to his claim. Seiler v. Thalacker, 101 F.3d at 538.
The petitioner's second claim for relief is based upon the argument that the petitioner's trial attorney provided ineffective assistance by failing to request a proper self-defense jury instruction tailored to the petitioner's "rat packing" theory. The facts underlying this claim were raised in the petitioner's post-conviction motion to the district court, the Nebraska Court of Appeals, and the petition for further review filed in the Nebraska Supreme Court. (State R. Vol. 6, 8.) Although not artfully presented in the petitioner's initial pro se motion for post-conviction relief in the district court, the petitioner did claim that he was "denied his right to effective assistance of counsel secured by the . . . Sixth . . . Amendment to the United States Constitution . . . ." (State R. Vol. 8.) There is no doubt that the petitioner's claim was properly presented to the Nebraska Court of Appeals, as the brief prepared by counsel specifically, though tangentially, cited Strickland in its discussion of a pertinent federal case, United States v. Span, 75 F.3d 1383 (9th Cir. 1996). However, although the matter presents a close question, I find that this claim was not preserved in the petition for further review in the Nebraska Supreme Court. In the petition for further review, the petitioner's counsel argued that the "Nebraska Court of Appeals erred in determining that the self-defense instruction was adequate and proper for the theory of self-defense against a victim who was acting as a part of a group." (State R. Vol 8, Pet. Further Review at 1.) This could be interpreted as an argument that the first step of theStrickland analysis of ineffective assistance of counsel has been met, but the petition itself makes no mention of Strickland, the Sixth Amendment, or any other federal law. Indeed, if it were not for references to the petitioner's original claims on appeal and the final sentence prior to the conclusion of the memorandum, which reads, "Trial counsel, by not seeking an instruction which would support his theory of the defense, doomed appellant [sic] chances for an acquittal, and did not perform up to the standard required for effective assistance," the entire basis for the petition for further review would lack any direct nexus with the ineffective assistance of counsel claim. (Id. at 4-5.) Unfortunately for the petitioner, counsel failed to elaborate on what the `standard required for effective assistance' is, or, more specifically, whether it was the federal standard that was violated. The petition for further review and incorporated memorandum in support make no reference to the petitioner's federal constitutional rights or federal constitutional provisions, nor any federal cases or state cases raising a pertinent federal constitutional issue.
It appears that the petition for further review did not raise the issue of whether counsel provided ineffective assistance in violation of the Sixth Amendment and Strickland, but rather merely asked for review of the Nebraska Court of Appeals' conclusion that under Nebraska law, the jury instructions were adequate as given. Even if I generously assume that the petition asks the Nebraska Supreme Court to review the finding that counsel did not perform ineffectively, there is nothing in the petition for further review that would call the Nebraska Supreme Court's attention to the fact that the petitioner was raising a federal claim. Seiler v. Thalacker, 101 F.3d at 538. I cannot find that the Nebraska Supreme Court was given a fair opportunity to determine whether the petitioner was denied his federal constitutional right to effective assistance of counsel. Since the claim was not fairly presented to state courts via one complete round of the state's established appellate review process, I find that the exhaustion requirements have not been satisfied. O'Sullivan v. Boerckel, 526 U.S. at 845.
The third claim raised in the petition for a writ of habeas corpus alleges that the petitioner's trial attorney provided ineffective assistance by failing to retain an expert to refute the prosecution's theory of the shooting. The petitioner admits that this claim was not presented to the Nebraska Supreme Court, and I find that under Boerckel the exhaustion requirements for this claim have not been satisfied.
IV. PROCEDURAL DEFAULT
In this case, the consequences of the petitioner's failure to present fairly his federal constitutional claims to the state courts throughout one complete round of Nebraska's appellate review process are severe.
Title 28 U.S.C. § 2254(b) bars the granting of habeas corpus relief "unless it appears that the applicant has exhausted the remedies available in the courts of the State." Because "[t]his requirement . . . refers only to remedies still available at the time of the federal petition," . . . it is satisfied "if it is clear that [the habeas petitioner's] claims are now procedurally barred under [state] law." However, the procedural bar that gives rise to exhaustion 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.Gray v. Netherland, 518 U.S. 152, 161-62 (1996) (citations omitted). I must determine whether the petitioner currently has any remedy available under state law, or if his claims are now procedurally barred. If the petitioner's claims are now procedurally barred under state law, federal habeas corpus review is prevented unless the petitioner can show cause and prejudice for his default.
First, it is clear that the petitioner's claims are procedurally barred. Nebraska law recognizes that "postconviction proceedings are not a tool whereby a defendant can continue to bring successive motions for relief." State v. Ryan, 257 Neb. 635, 647 (1999), cert. denied, 120 S.Ct. 1836 (2000) (citations omitted). In this case, the petitioner has already invoked the state procedures for postconviction relief, and a petitioner is entitled to bring a second proceeding for postconviction relief only "if the grounds relied upon did not exist at the time the first motion was filed." Id.
Once a motion for postconviction relief has been judicially determined, any subsequent motion for such relief from the same conviction and sentence may be dismissed unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time the prior motion was filed.Id. (citation omitted). Under the circumstances of this case, it cannot be argued that the basis for the petitioner's claims was not available at the time his state postconviction motions were filed. Therefore, the claims are exhausted in the sense described by Gray. That is, although they were not properly exhausted through fair presentation to the state courts, the claims have been exhausted in another sense due to the fact that no state court remedy remains open to the petitioner. This "exhaustion," which is due to a procedural bar that constitutes an independent and adequate state law ground for the conviction, constitutes a procedural default. I find that the petitioner has procedurally defaulted each of the claims raised in his present petition for a writ of habeas corpus.
It remains to be determined whether the petitioner can show cause and prejudice for his default. Since the petitioner admitted that his third claim was not fairly presented to the state courts, he properly anticipated the need to show cause and prejudice for his procedural default of that claim. The petitioner argues that his counsel's failure to preserve all but one of his claims in his petition for further review of the decision of the Nebraska Court of Appeals denying his motion for postconviction relief constitutes ineffective assistance. He claims that under Edwards v. Carpenter, 529 U.S. 446 (2000), if he can show that his counsel was constitutionally ineffective for failing to preserve his claims in his petition for further review of his postconviction motion, then he has shown cause for his procedural default.
The petitioner's argument must be rejected. Carpenter involved a habeas petitioner who claimed that his counsel's errors on direct appeal constituted cause for his procedural default.Carpenter does not help the petitioner's argument that his _postconviction counsel's alleged ineffectiveness constituted cause for the procedural default of his third claim. On the contrary, it is clear that counsel's alleged errors involving the petitioner's postconviction motion cannot constitute cause for the procedural default of his claims:
There is no constitutional right to an attorney in state post-conviction proceedings. Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings. Coleman contends that it was his attorney's error that led to the late filing of his state habeas appeal. This error cannot be constitutionally ineffective; therefore Coleman must "bear the risk of attorney error that results in a procedural default."Coleman v. Thompson, 501 U.S. 722, 752-53 (1991) (citations omitted). Therefore, the petitioner has failed to show cause for the procedural default of his third claim.
The following succinctly describes the position confronting the petitioner at this time:
A federal judge may issue a writ of habeas corpus freeing a state prisoner, if the prisoner is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). However, the judge may not issue the writ if an adequate and independent state-law ground justifies the prisoner's detention, regardless of the federal claim. See Wainwright v. Sykes, 433 U.S. 72, 81- 88, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). One "state ground" often asserted as an adequate, independent basis for holding a state prisoner in custody is a state-law "procedural default," such as the prisoner's failure to raise his federal claim at the proper time. However, under certain conditions the State's assertion of such a ground is not "adequate" (and consequently does not bar assertion of the federal-law claim). There are three situations in which an otherwise valid state ground will not bar federal claims: (1) where failure to consider a prisoner's claims will result in a "fundamental miscarriage of justice," Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); (2) where the state procedural rule was not "`firmly established and regularly followed,'" Ford v. Georgia, 498 U.S. 411, 423- 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991); James v. Kentucky, 466 U.S. 341, 348-349, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984); and (3) where the prisoner had good "cause" for not following the state procedural rule and was "prejudice[d]" by not having done so, Sykes, supra, at 87, 97 S.Ct. 2497.Edwards v. Carpenter, 529 U.S. 446, 454-55 (2000) (Breyer, J., concurring in the judgment).
Although the petitioner made an attempt to show cause and prejudice for the default of his third claim, I feel that the petitioner has not had a full opportunity to argue the issue of procedural default since I analyzed the fair presentation requirement, exhaustion, and procedural default issues sua sponte. In the interests of fairness to the pro se petitioner I shall grant the petitioner an opportunity to argue that his three claims are not barred by his procedural default in a supplemental brief to be filed in accordance with the schedule outlined below.
IT IS ORDERED that the petitioner is allowed 45 days from the entry date of this order to submit a supplemental brief in support of his petition for a writ of habeas corpus in order to argue that his claims are not procedurally defaulted. The respondent may file a supplemental response brief within 30 days of the date on which the petitioner's supplemental brief is submitted. No supplemental reply briefs shall be submitted. If the petitioner fails to submit a supplemental brief within the time period set forth above, his petition for a writ of habeas corpus, filing 1, shall be dismissed with prejudice.
IT IS FURTHER ORDERED that the petitioner's motion entitled "3rd Appointment of Counsel," filing 50, is denied.