United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF, Senior District Judge.
This matter is before the court on Petitioner Keylan Jenkins's ("Petitioner") Petition for Writ of Habeas Corpus. (Filing No. 1.) Petitioner argues that he is entitled to a writ of habeas corpus based on the following claims:
Claim One: Petitioner was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because his trial counsel (1) advised Petitioner to plead to a charge "illustrating improper and wrong statutory language, " (2) failed to advise Petitioner about the nature of the charges against him, and (3) failed to investigate facts or depose witnesses. ( Id. at CM/ECF pp. 5-6.)
Claim Two: Petitioner was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because his appellate counsel failed to raise his trial counsel's ineffectiveness as a claim on appeal. ( Id. )
For the reasons set forth below, a grant of a writ of habeas corpus is not warranted on any of these issues.
I. BACKGROUND A. Conviction
On September 1, 2009, the State of Nebraska ("State") charged Petitioner by information in the Douglas County District Court ("state district court") with first degree assault and use of a deadly weapon to commit a felony. (Filing No. 7-4 at CM/ECF p. 10.) The factual basis provided at Petitioner's plea hearing by counsel for the State set forth that:
[O]n July 24th, 2009, the defendant in this case was a passenger in the back of a vehicle being driven by Jerry Fellows. Also in the rear of this vehicle were the victim, Shaniqua Grayson, and a witness, LaShawna Ashworth. They had been riding around together that evening.
In the area of 37th and Grand Avenue, they had just been involved in a rolling shoot-out. They were then leaving that area, heading for the Wal-Mart near 72nd and Center Street. They were in the area of 72nd and Dodge Street, at which point in time the victim, Shaniqua Grayson, and LaShawna Ashworth were giggling. The defendant, Keylan Jenkins, became upset with those two individuals giggling and told them, pointed the firearm, he doesn't play that whispering shit. At which point in time Shaniqua Grayson kind of blew him off, and the defendant indicated you don't want to fuck with me, and fired the gun, striking her in the right arm, went through her right lung and struck her in the spinal cord. As a result the victim is paralyzed from the fourth rib down. At that point in time the defendant exited the vehicle and fled the scene. The victim was taken to Methodist Hospital by Mr. Fellows, was dropped off, and left. All events occurring in Omaha, Douglas County.
(Filing No. 7-1 at CM/ECF pp. 37-38.)
As part of a plea agreement, the State amended the original information to charge Petitioner with second degree assault and use of a deadly weapon to commit a felony. ( Id. at CM/ECF p. 18.) On January 20, 2010, Plaintiff pled guilty to the amended information. ( Id. at CM/ECF pp. 31-32.) On May 4, 2010, the state district court sentenced Petitioner to a period of not less than 15 years nor more than 20 years' imprisonment on the second degree assault charge. ( Id. at CM/ECF p. 53.) In addition, the state district court sentenced Petitioner to a period of not less than 40 years nor more than 50 years' imprisonment on the use of a deadly weapon charge, and ordered that it run consecutive to the sentence on the assault charge. ( Id. )
B. Direct Appeal
Petitioner appealed the state district court's judgment to the Nebraska Court of Appeals. (Filing No. 7-4 at CM/ECF p. 1.) He argued only that he received an excessive sentence. (Filing No. 7-5 at CM/ECF pp. 1-10.) On September 14, 2010, the Nebraska Court of Appeals sustained the State's motion for summary affirmance. (Filing No. 7-3 at CM/ECF p. 2.) Petitioner did not petition the Nebraska Supreme Court for further review of the issue.
C. Post-Conviction Motion
Petitioner filed a motion for post-conviction relief in the state district court on August 11, 2011. (Filing No. 7-7 at CM/ECF pp. 25-34.) Petitioner argued that his trial counsel failed to explain the charges contained in the amended information, coerced Petitioner to enter his pleas, failed to explain to Petitioner the possible consequences of his pleas, failed to investigate two of the State's witnesses, and misled Plaintiff about his right to testify. ( Id. ) The state district court held an evidentiary hearing on September 6, 2012 ( id. at CM/ECF p. 35), and denied Petitioner's post-conviction motion on September 18, 2012 ( id. at CM/ECF pp. 35-39).
Petitioner filed a pro se motion to alter or amend the state district court's judgment on October 2, 2012, which the state district court denied on October 11, 2012. (Filing No. 7-8 at CM/ECF p. 4.) Petitioner appealed the district court's September 18, 2012, decision to the Nebraska Court of Appeals. (Filing No. 7-7 at CM/ECF p. 1.) However, the Nebraska Court of Appeals dismissed the appeal on January 23, 2013, because Petitioner had not timely filed a motion to alter or amend judgment in the state district. (Filing No. 7-6 at CM/ECF p. 2.) Thereafter, the Nebraska Supreme Court denied a petition for further review. ( Id. )
D. Habeas Corpus Petition
Petitioner filed his habeas corpus petition in this court on July 31, 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. 7, 9, and 10.) Petitioner did not file a brief in response to the answer despite being given two extensions of time in which to do so. ( See Docket Sheet.) This matter is fully submitted.
II. STANDARD OF REVIEW
A. Exhaustion Requirement
As set forth in 28 U.S.C. § ...