United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF, Senior District Judge.
Thunder Collins has filed a petition under 28 U.S.C. § 2254 (filing no. 1) challenging his conviction under Nebraska law for murder and related crimes. The matter has been fully briefed, and the record made complete. I find and conclude that Collins has failed to fairly present his claims as federal Constitutional claims to the Nebraska courts and thus has defaulted them or that, when the required deference is given the Nebraska Supreme Court, his claims lack merit.
After a jury trial, Thunder Collins was convicted of first degree murder, attempted second degree murder, first degree assault, and two counts of use of a weapon to commit a felony. He was sentenced to a combined sentence of life plus at least 90 years' imprisonment.
Boiled down, the jury believed that Collins, with the assistance of other people, ripped off some California drug dealers, killing one and seriously harming another. On direct appeal to the Nebraska Supreme Court, said appeal being required by the fact that a life sentence was imposed, Collins asserted six claims. They were: the district court erred in (1) denying his motion for a directed verdict; (2) admitting evidence of a prior relationship between Collins and the victims, in violation of rule 404; (3) allowing the State to file a second amended information just 20 days prior to trial; (4) overruling Collins' motion for new trial based on newly discovered evidence; (5) overruling Collins' motion for new trial due to the district court's action in allowing the jury to separate during deliberations; and (6) submitting the felony murder charge to the jury.
The Nebraska Supreme Court denied five of the six claims in the first appeal. State v. Collins, 799 N.W.2d 693 (Neb. 2011). The opinion was extremely thorough and factually detailed. Regarding the claim that the jury was not sequestered, the Nebraska Supreme Court remanded that claim for an evidentiary hearing on whether the prosecution could show that there was no prejudice. Following an evidentiary hearing where it was clearly established that the jurors engaged in no improper conduct and were not influenced by external sources, the Nebraska Supreme Court affirmed Collins' conviction and sentence. State v. Collins, 812 N.W.2d 285 (Neb. 2012). Collins did not seek review by the United States Supreme Court.
On June 19, 2012, Collins filed a motion for postconviction relief. (Filing No. 12-14 at CM/ECF pp. 14-17.) Collins alleged two claims in his postconviction motion: (1) the Nebraska Supreme Court erred in finding on direct appeal that the rule 404 violation was harmless error, and (2) Collins' conviction was inconsistent with the conviction of his codefendant. ( Id. ) The state district court entered a written opinion denying Collins' postconviction motion without an evidentiary hearing. ( Id. at CM/ECF pp. 24-26.) Collins appealed to the Nebraska Supreme Court, arguing that the district court erred in denying Collins' first postconviction claim - that the Nebraska Supreme Court erred in finding on direct appeal that the rule 404 violation was harmless error. ( Id. at CM/ECF p. 1; Filing No. 12-10 at CM/ECF pp. 3, 5-7.) The Nebraska Supreme Court affirmed the state district court's judgment by sustaining the State's motion for summary affirmance on October 31, 2012. (Filing No. 12-3 at CM/ECF p. 2.)
Collins filed his petition in this court on November 28, 2012. The matter was initially reviewed, and five claims were found to be "potentially cognizable" in federal court. (Filing no. 10.) That is:
Liberally construed, Petitioner asserts he was denied due process in violation of the Fourteenth Amendment because the trial court (1) denied Petitioner's motion for directed verdict, (2) sustained the state's 404 motion to "adduce" evidence of a prior relationship between Petitioner and California drug dealers, (3) allowed the state to file a second amended information 20 days before trial, (4) denied Petitioner's motion for new trial, and (5) submitted a felony murder charge to the jury.
Nebraska has answered the petition (filing no. 19), submitted the record (filing no. 12, filing no. 13, filing no. 14, filing no. 15, filing no. 16), and briefed the matter. (Filing no. 20.) Collins has responded with his brief (filing no. 24), and the matter is now deemed submitted.
Intending no disrespect, this case is not difficult. Claims 2 and 3 have been procedurally defaulted because Collins did not fairly present the substance of each of those federal claims to the state courts and he is now barred from doing so. Additionally, claims 1, 4 and 5 have no substantive merit. Briefly, I next explain why this is so.
A. Standard Under 28 U.S.C. § 2254(d)
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). As explained by the Supreme Court in Williams v. Taylor, 529 U.S. 362 (2000), 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. 529 U.S. at 405-406. 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, 131 S.Ct. 770, 786 (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. In short, "[i]t bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." 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 ...