United States District Court, D. Nebraska
MEMORANDUM AND ORDER
JOSEPH F. BATAILLON, District Judge.
This matter is before the court on Petitioner Keith McDougald's ("Petitioner" or "McDougald") Petition for Writ of Habeas Corpus. (Filing No. 1.) For the reasons set forth below, the court finds that a grant of a writ of habeas corpus is not warranted on any of the issues set forth in McDougald's habeas corpus petition.
Liberally construed, McDougald argues that he is entitled to a writ of habeas corpus based on the following claims:
Claim One: Petitioner was denied due process in violation of the Fourteenth Amendment because 1) "there was never a proper Amended Information filed"; and 2) "Petitioner's conviction was obtained on the basis of a no contest plea which was not knowingly, willingly, intelligently, and understandingly made."
Claim Two: Petitioner was denied effective assistance of trial counsel in violation of the Sixth and Fourteenth Amendments because petitioner's counsel failed to 1) investigate; 2) "discover and produce evidence"; 3) "properly and correctly advise"; 4) "present a known defense"; and 5) make timely objections.
Claim Three: Petitioner was denied effective assistance of appellate counsel in violation of the Sixth and Fourteenth Amendments because appellate counsel failed "to raise issue[s] that would appear on the record, such as, that the plea was invalid and void due to a defective Information or Amended Information and due to the fact medical evidence refuted the state[']s case."
(Filing No. 1.)
The State of Nebraska ("State") charged McDougald by information in the District Court of Douglas County, Nebraska ("state district court), with first degree sexual assault of a child and terroristic threats. (Filing No. 9-8 at CM/ECF pp. 10-13.) As part of a plea agreement, the State amended the original charge of first degree sexual assault of a child to attempted first degree sexual assault, and dismissed the terroristic threats charge. (Filing No. 9-10 at CM/ECF pp. 4-5.) On May 17, 2011, McDougald pled no contest to an amended information charging him with attempted first degree sexual assault. (Filing No. 9-8 at CM/ECF p. 14.) The factual basis provided by the State established that McDougald subjected his 13-year-old daughter to sexual penetration approximately five times between January 4, 2010, and February 21, 2010. ( Id. at CM/ECF pp. 12-13.) On July 15, 2011, the state district court sentenced McDougald to 18 to 20 years in prison. ( Id. at CM/ECF p. 15.)
B. Direct Appeal
McDougald filed a direct appeal of his conviction and sentence. McDougald was represented by trial counsel on appeal. ( Id. at CM/ECF p. 1.) On direct appeal, McDougald argued only that the state district court imposed an excessive sentence. (Filing No. 9-3 at CM/ECF p. 4.)
On November 16, 2011, the Nebraska Court of Appeals affirmed McDougald's conviction and sentence by sustaining the State's motion for summary affirmance. (Filing No. 9-1 at CM/ECF p. 2.) McDougald did not file a petition for further review in the Nebraska Supreme Court. ( See id. )
C. Post-Conviction Motion and Appeal
McDougald filed a motion for post-conviction relief in the state district court on March 22, 2012. (Filing No. 9-9 at CM/ECF pp. 24-38.) McDougald argued in his post-conviction motion that his plea was void or voidable because his counsel was ineffective for failing to challenge the amended information on the basis that it did not set forth the victim's date of birth. ( Id. ) McDougald also argued that his counsel was ineffective for failing to inform McDougald of his right to withdraw his plea, for failing to talk to McDougald about a "defense" to the charges, and for failing to raise certain issues on direct appeal. ( Id. ) The state district court denied McDougald's post-conviction motion without an evidentiary hearing on August 21, 2012. (Filing No. 9-9 at CM/ECF pp. 64-69.)
McDougald appealed the state district court's denial of post-conviction relief to the Nebraska Court of Appeals. (Filing No. 9-9 at CM/ECF p. 1.) On October 18, 2012, the Nebraska Court of Appeals affirmed the state district court's denial of post-conviction relief by sustaining the State's motion for summary affirmance. (Filing No. 9-2 at CM/ECF p. 2.) McDougald filed a petition for further review in the Nebraska Supreme Court, which was denied on April 10, 2013. ( Id. )
D. Habeas Corpus Petition
McDougald filed his habeas corpus petition in this court on May 13, 2013. (Filing No. 1.) In response to the petition, Respondent filed an answer, a brief in support of the answer, and the relevant state court records. (Filing Nos. 9, 10, 11, and 12.) Thereafter, McDougald filed a brief in support ...