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Williams v. Kenney

United States District Court, D. Nebraska

October 10, 2014

LARRY E. WILLIAMS, Petitioner,
v.
MICHAEL L. KENNEY, Respondent.

MEMORANDUM AND ORDER

RICHARD G. KOPF, Senior District Judge.

This matter is before the court on Petitioner Larry E. Williams' ("Petitioner" or "Williams") Petition for Writ of Habeas Corpus ("Petition"). (Filing 1.) Liberally construed, Williams argues that he is entitled to a writ of habeas corpus based on the following claims:

Claim One: Williams was denied the effective assistance of counsel in violation of the Sixth Amendment because Williams' trial counsel did not (1) investigate the case; (2) gather evidence; (3) prepare for trial; (4) call Kent Gurll (the victim's step-father) and Don Anderson (the victim's biological father) to testify regarding the victim's propensity to "get even"; (5) advise Petitioner during trial; (6) tender a proper jury instruction; (7) formulate a reasonable strategy for attacking the motivations of the victim to make a false claim; (8) call witnesses who would testify to the victim's reputation for untruthfulness; (9) call character witnesses who would testify to his good character and reputation for truthfulness; (10) examine the victim's DHHS records for evidence of conduct that would establish motivations for giving false testimony at trial; (11) examine the victim's mental health records from Richard Young Mental Health Hospital that would have disclosed her bi-polar disorder; (12) examine the victim's prior criminal history relevant to impeachment of her trial testimony; or (13) object to the jury instructions, which did not include the essential elements of the crimes charged in Counts VI and VII.
Claim Two: Williams' conviction was obtained in violation of his right to due process because the trial court did not properly instruct the jury as to each of the material elements of the offenses alleged in Counts VI and VII.

( Id.; Filing 8 at CM/ECF pp. 1-2.)

I. BACKGROUND

A. Williams' Conviction and Direct Appeal

On July 21, 2010, a jury found Williams guilty of five counts of first degree sexual assault and one count of sexual assault of a child. (Filing 29-4 at CM/ECF p. 10.) On September 3, 2010, the District Court of Buffalo County, Nebraska, ("Buffalo County District Court") sentenced Williams to a period of not less than 6 nor more than 12 years of imprisonment for each of his five sexual assault convictions. (Filing 12-1 at CM/ECF pp. 2-3.) With regard to the sexual assault of a child conviction, the Buffalo County District Court sentenced Williams to a term of 5 years of probation. ( Id. )

Williams appealed his convictions and sentences (filing 29-7), but the Nebraska Supreme Court affirmed them (filing 29-2). State v. Williams, 802 N.W.2d 421 (Neb. 2011).

B. Williams' Post-Conviction Motion

On January 12, 2012, Williams filed a Verified Motion to Set Aside and Vacate the Conviction and Sentence ("Post-Conviction Motion") in the Buffalo County District Court. (Filing 29-8 at CM/ECF pp. 49-65.) In his Post-Conviction Motion, Williams alleged his trial counsel was ineffective for:

1) failure to adequately investigate the case; 2) failure to adequately gather the evidence; 3) failure to adequately prepare for trial; 4) failure to adequately interview and gather the witnesses the defendant requested; 5) failure to adequately advise defendant during prosecution; 6) failure to tender a proper jury instruction and 7) failure to object to a defective instruction.

(Filing 12-2 at CM/ECF p. 6.) On May 21, 2012, the Buffalo County District Court dismissed Williams' Post-Conviction Motion. ( Id. at CM/ECF pp. 1, 12.) In doing so, the Buffalo County District Court specifically concluded that, based on the files and records, Williams could not show that his trial counsel's performance was deficient. ( Id. at CM/ECF p. 6.)

On June 19, 2012, Williams filed a Notice of Appeal regarding the Buffalo County District Court's order denying his Post-Conviction Motion. (Filing 29-8 at CM/ECF p. 27.) Six days later, Plaintiff filed a Motion for Leave to Proceed In Forma Pauperis on his Post-Conviction appeal along with an affidavit of poverty in support thereof. ( Id. at CM/ECF pp. 6-7.) On July 25, 2012, the Nebraska Court of Appeals dismissed the appeal because the poverty affidavit, filed in lieu of the statutory docket fee, was not timely filed pursuant to Neb. Rev. Stat. ยง 25-1912(1). (Filing 12-3 at CM/ECF p. 2.) Williams subsequently filed a Motion for Rehearing, which the Nebraska Court of Appeals overruled. ( Id. )

C. Williams' Petition

On September 25, 2013, Williams filed his Petition in this court. (Filing No. 1.) Respondent subsequently filed an Answer, a Brief in Support of the Answer, and relevant State Court Records. (Filings 12, 13, and 14.) Thereafter, Williams filed a Brief in support of his Petition and ...


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