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Simnick v. Kenney

United States District Court, D. Nebraska

October 29, 2014

KEVIN A. SIMNICK, Petitioner,
v.
MICHAEL L. KENNEY, Respondent.

MEMORANDUM AND ORDER

LAURIE SMITH CAMP, Chief District Judge.

This matter is before the court on Petitioner Kevin A. Simnick's ("Petitioner" or "Simnick") 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 Simnick's habeas corpus petition.

Liberally construed, Simnick argues he is entitled to a writ of habeas corpus based on the following claims:

Claim One: Petitioner was denied due process of law in violation of the Fourteenth Amendment because the trial court lacked subject-matter jurisdiction to try the case.
Claim Two: Petitioner was denied due process of law in violation of the Fourteenth Amendment because the prosecutor was allowed to file an information that was insufficient and defective.
Claim Three: Petitioner was denied due process of law in violation of the Fourteenth Amendment because the prosecutor withheld exculpatory evidence.
Claim Four: Petitioner was denied due process of law in violation of the Fourteenth Amendment because his plea "was not voluntarily, knowingly, understandingly and intelligently made."
Claim Five: Petitioner was denied due process of law in violation of the Fourteenth Amendment because the prosecution induced him into pleading guilty by misrepresenting a plea agreement that it later breached.
Claim Six: Petitioner was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because trial counsel failed to (a) object to the lack of the trial court's subject matter jurisdiction; (b) advise him of the true nature of the charge before he pled; (c) inform him of the penalties of the charge before he pled; (d) object to the invalid factual basis for the plea; (e) object to the breach of the plea agreement at sentencing; (f) contest the insufficient and defective information; and (g) conduct a reasonable investigation into the case.
Claim Seven: Petitioner was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because appellate counsel failed to "raise or properly argue meritorious claims on direct appeal."

(Filing No. 6 at CM/ECF pp. 1-2 (citation to habeas corpus petition omitted).)

I. BACKGROUND

A. Conviction and Sentence

The State of Nebraska ("State") charged Simnick by information in the District Court of Lancaster County, Nebraska ("state district court"), with two counts of sexual assault of a child in the first degree. State v. Simnick, 771 N.W.2d 196, 201-02 (Neb. Ct. App. 2009) (" Simnick I" ). As part of a plea agreement, the State amended the information to charge Simnick with one count of first degree sexual assault. In addition, the Scotts Bluff County Attorney agreed not to prosecute Simnick for a separate offense involving the same victim. Id. at 202. On June 16, 2008, Simnick pled no contest to first degree sexual assault, which was count II of the amended information. Id.

Simnick argues in this action that he is actually innocent of first degree sexual assault. Accordingly, the court includes in this order the relevant recitation of facts offered by the State at Simnick's plea hearing:

[T]he victim's initials [are] A.M.... [She is] a Hispanic female with a date of birth of October 24, 1996. Her mother is [L.M.]. Back on or about April 4, 2001, [L.M.] did marry the defendant - Kevin Simnick, the defendant, in Lincoln, Lancaster County, state of Nebraska, and for the years thereafter, the defendant acted as essentially a stepfather to A.M. He at all times was a person 19 years of age or older with a date of birth of June 26th of 1971.
In the summer of 2007, A.M. disclosed to law enforcement that she had been subjected to sexual penetration on two occasions by the defendant, Kevin Simnick. She stated one of these occurred at a hotel or motel room in Gering, Scotts Bluff County, Nebraska, and a second time at her home at 824 Manes, M-a-n-e-s, Court in Lincoln, Lancaster County, Nebraska. Mr. Simnick, [L.M.] and the victim moved into the house on or about or shortly thereafter March 23, 2005. And the second incident of sexual penetration is what's reflected in Count II.
Briefly, A.M. disclosed that the defendant, Mr. Simnick, put his personal thing inside of her personal thing at the family residence on Manes Court. Through the use of diagrams, it was determined that A.M. was referring to her vagina as her personal thing and Mr. Simnick's penis as his personal thing.
Mr. Simnick was contacted by law enforcement as the Court knows; we did have a motion to suppress. During statements - the statement given to law enforcement, Mr. Simnick did admit to placing his penis inside of A.M.'s vagina and I would reoffer Exhibit 3, which is a DVD of the defendant's interview, Exhibit 5, which is the typed statement of that interview, and Exhibit 8, which were some diagrams drawn by the defendant and handwritten letters, for completeness sake for the factual basis.

(Filing No. 8-7 at CM/ECF pp. 179-80.)

On August 11, 2008, the state district court sentenced Simnick to a period of not less than 20 nor more than 35 years' imprisonment. (Filing No. 8-1 at CM/ECF p. 1.) The state district court determined Simnick had committed an "aggravated offense" and was, therefore, required to register under Nebraska's Sex Offender Registration Act ("SORA") for the remainder of his life. In addition, the state district court determined Simnick would be subject to lifetime community supervision by the Office of Parole Administration upon his release from either incarceration or civil commitment pursuant to Neb. Rev. Stat. § 83-174.03(1). State v. Simnick, 779 N.W.2d 335, 337 (Neb. 2010) (" Simnick II ").

B. Direct Appeal

Simnick appealed his conviction and sentence to the Nebraska Court of Appeals. Simnick argued:

(1) The district court erred in denying his counsel's motion to withdraw; (2) the district court erred in accepting the no contest plea, because it was not entered into freely, voluntarily, knowingly, and intelligently; (3) the district court erred in failing to inform him regarding the nature of the charge to which he entered a plea; (4) he received ineffective assistance of counsel; (5) the district court erred in determining that the offense was an aggravated offense for purposes of SORA; (6) the district court erred in determining that he was "subject to lifetime parole pursuant to Neb.Rev.Stat. § 83-174.03, as such statute violates the ex post facto clause"; and (7) the sentence imposed was excessive.

Simnick I, 771 N.W.2d at 202.

On July 21, 2009, the Nebraska Court of Appeals held all but one of Simnick's assignments of error were without merit. The court determined "the finding that Simnick committed an aggravated offense for the purpose of lifetime community supervision should have been submitted to a jury, but that [the] error was harmless." Id. at 213.

Simnick petitioned the Nebraska Supreme Court for further review of the issues. He argued the imposition of lifetime community supervision violated the Ex Post Facto Clauses of the Nebraska and federal Constitutions, and that his no contest plea was not freely, knowingly, and voluntarily made. Simnick II, 779 N.W.2d at 338. On March 5, 2010, the Nebraska Supreme Court affirmed the portion of the Nebraska Court of Appeals' judgment that affirmed Simnick's conviction. However, it reversed the portion of the judgment that affirmed the sentence of lifetime community supervision by the Office of Parole Administration. The court determined the inclusion of the punishment in Simnick's sentence violated the Ex Post Facto Clauses of the Nebraska and federal Constitutions because § 83-174.03 was not in effect at the time of Simnick's offense. Simnick II, 779 N.W.2d at 342. Thereafter, in accordance with the Nebraska Supreme Court's judgment, the state district court struck the portion of the sentencing order subjecting Simnick to lifetime community supervision by the Office of Parole Administration. (Filing No. 8-2.)

C. Post-Conviction Motion and Appeal

Simnick filed a motion for post-conviction relief in the state district court on June 20, 2011. (Filing No. 8-6 at CM/ECF pp. 1-92.) He generally alleged that his right to a speedy trial was violated, the amended information was defective and not properly served, and he was denied the effective assistance of trial and appellate counsel. The state district court denied the post-conviction motion in all respects and declined to hold an evidentiary hearing. The court wrote, in relevant part:

The court has reviewed the files and records in this case and finds that all of the contentions of Simnick either are not true, do not constitute constitutional violations, or are mere conclusions. Because the records and files affirmatively show that he is not entitled to relief, an evidentiary hearing is not required. This appears to be a classic case of "buyer's remorse."

(Filing No. 8-8 at CM/ECF p. 14.)

The Nebraska Court of Appeals affirmed the state district court's judgment in a written opinion. State v. Simnick, No. A-11-990, 2013 WL 71793 (Neb. Ct. App. Jan. 8, 2013) (" Simnick III "). The court concluded all of Simnick's assignments of error were either procedurally barred or without merit. Id. at 2013 WL 71793 at *5. Thereafter, the Nebraska Supreme Court denied Simnick's petition for further review. ( See Filing No. 8-11 at CM/ECF p. 3.)

D. Habeas Corpus Petition

Simnick filed his habeas corpus petition in this court on July 23, 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. 8, 9, 10, and 11.) ...


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