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Fletcher v. Gage

United States District Court, D. Nebraska

September 15, 2015

BARRY W. FLETCHER, Petitioner,
v.
BRIAN GAGE, Respondent.

MEMORANDUM AND ORDER

LAURIE SMITH CAMP, Chief District Judge.

This matter is before the Court on Petitioner Barry W. Fletcher's ("Fletcher" or "Petitioner") Petition for Writ of Habeas Corpus ("habeas corpus petition") brought pursuant to 28 U.S.C. § 2254 (Filing No. 1). Respondent Brian Gage ("Respondent") argues Fletcher is not entitled to relief on any of the 31 claims raised in Fletcher's habeas corpus petition. The Court agrees.

I. BACKGROUND

A. Conviction and Sentence

In this action, Fletcher challenges the sufficiency of the evidence presented against him during the state court proceedings. Therefore, the Court will state the facts of the crime as they were recited by the Nebraska Court of Appeals in State v. Fletcher, No. A-08-723, 2009 WL 2767720, at *1-4 (Neb. Ct. App. Sept. 1, 2009) (affirming Fletcher's conviction and sentence on direct appeal). See Bucklew v. Luebbers, 436 F.3d 1010, 1013 (8th Cir. 2006).

In the early morning hours of March 19, 2007, Matthew Hitzel discovered a stranger in the kitchen of his Lincoln, Lancaster County, Nebraska, duplex. Earlier that morning, at about 12:30 a.m., one of Hitzel's three roommates, Josh Compton and Compton's girlfriend, Nicole Schultz, were leaving the duplex through the front door, when Schultz saw a man standing in front of the kitchen window of the duplex about 12 to 15 feet away from her. Schultz did not know the man, but she could see him from the lights in the kitchen, allowing her to get a good look at his face. As Schultz watched the man, he pretended to fumble with something and then walked to his vehicle. Compton then exited the duplex, and they left in his car, observing the man sitting on the driver's side of his vehicle, a compact, red four-door car, as they passed by. During the two-minute encounter, Schultz testified that the man looked directly at her three times-twice by the window and maybe once on his way to his car. After Compton and Schulz started driving away, Compton looked in the rearview mirror and saw the man get out of the vehicle and walk toward the duplex. A little while later, Compton called Hitzel and told him that he had seen a man wandering around outside their duplex and that he thought the man might have gone inside the duplex.

Hitzel left his room to investigate. He entered the kitchen, which was well-lit, and he encountered a man who had just opened the door and stepped inside the kitchen. Hitzel, who was about six feet away from the man, stared at him for 10 to 15 seconds before the man fled. Hitzel immediately noticed that an amplifier was missing and ran upstairs and told another roommate, Brett Ketter, that they had been robbed. Ketter ran outside to try to locate the intruder and saw a small, red four-door car leaving the area. Hitzel reported the incident to police shortly before 1 a.m. and described the intruder as a black male, about 5'10" and 170 pounds, having a shaved head, wearing jeans and a jean jacket, and in his late 20s or early 30s. Hitzel later noticed that he was missing the amplifier head, cords, and pedal switch.

Shortly after 2 a.m., Officer Steven Berry responded to a report of a larceny from an automobile that was in progress at 28th and U Streets in Lincoln. The report indicated that a person seen breaking into cars had been observed driving a small, red four-door car. Berry was in the area of the report and observed one red car in that area with only one party in the car. Berry turned off the headlights of his cruiser to try to observe the red car without alerting the driver to his presence, but as soon as he reactivated his cruiser's headlights, the driver's door opened and the driver took off on foot. The driver left the car door open and left the car running and the lights on. Berry pursued the driver, shouting that he was a police officer and that the party should stop, but Berry briefly lost sight of the individual. Berry encountered another officer on T Street, and since that officer had not seen anyone run by, the officers moved parallel eastbound, Berry in the alley and the other officer on T Street. Almost immediately, Berry found the party lying face down on the porch of a house and another officer commanding the subject to show his hands. Berry estimated that from the time the subject jumped out of the car until the time he heard the officer giving commands to the subject, "probably less than 45 seconds" had passed, and that it was "[d]efinitely less than a minute." Berry testified that Fletcher was the person who was apprehended on the porch and was the person he saw flee from the red car.

Among the items discovered in the vehicle were several car stereos, an amplifier pedal and cords, which were identified by Hitzel as belonging to him, several car stereos, a flashlight, a hammer, gloves, a blue jacket, and a screwdriver.

At 3:53 a.m., back at his duplex, Hitzel was shown a photographic array and identified the picture of Fletcher as the man who had been in his kitchen. Hitzel stated he was 90 percent certain of his identification. After looking at the photograph for a few more minutes, Hitzel stated that he was 90 to 100 percent certain. Approximately 1½ weeks after the events, Schultz was shown a photographic lineup and she identified Fletcher as the man who she saw outside of the duplex. Schultz described the suspect as a black male, 5'8" and approximately 170 to 175 pounds, not particularly skinny, with short hair. Prior to viewing the photographic lineup, both Hitzel and Schultz read and signed an advisement form.

As a result of the aforementioned events, Fletcher was charged with burglary, theft by unlawful taking, possession of burglar's tools, and three counts of theft by receiving stolen property in the District Court of Lancaster County, Nebraska ("state district court"). The information also alleged that Fletcher was a habitual criminal. Fletcher filed motions to suppress any in-court or out-of-court identifications by Hitzel and Schultz. The state district court denied the motions, finding there was no evidence that the identification procedures used were suggestive and, in fact, noted that the procedures used were "not the least bit suggestive."

A jury trial was held on April 1 through 4 and 7, 2008, on all charged counts except for one count of theft by receiving stolen property, which was dismissed by the State of Nebraska ("State"). At trial, Schultz testified she was 95 percent certain Fletcher was the same person she saw outside the residence on March 19, 2007, even though Schultz had only stated she was about 70 to 80 percent certain when she viewed the photographic lineup only weeks after the events. Schultz attributed the increase in her certainty in her identification at the time of her trial testimony to seeing Fletcher in person, which reassured her that she had picked the right person out of the photographic lineup. Schultz further testified that her identification of Fletcher was based on her memory of March 19 because she would remember Fletcher's physical features. Likewise, Hitzel identified Fletcher as the intruder he saw in his kitchen in the early morning hours of March 19, and he stated he was 100 percent certain of his identification. He stated he was basing his identification of Fletcher on his memories of March 19.

Berry testified that a small pry mark was found on the inside of a blue Caprice from which a stereo was taken, the width of which was similar to that of the screwdriver found in the red car. Berry testified that he had investigated approximately 100 vehicle break-ins and that screwdrivers are commonly used tools in committing such crimes.

Although Hitzel was able to identify the amplifier pedal and cord found in the red car as his, Hitzel's amplifier and amplifier head were never recovered. Hitzel purchased the amplifier in December 2006 for $390.56 and the amplifier head for $695.49. A salesperson with experience in buying and selling musical equipment testified that he would offer to pay between $640 and $800 for such an amplifier and amplifier head similar to the ones stolen from Hitzel. He further testified that he would offer to sell the items for between $800 and $1, 000.

Mphatso Bokosi testified that on the evening of March 18, 2007, she parked her 1996 white Chevrolet Cavalier in front of her apartment building in Lincoln and locked the door. The next morning, Bokosi noticed her car's trunk was open, the dash was taken out, the compact disc ("CD") player had been removed, and there was a strip gone on the door. Bokosi identified one of the car stereos that was removed from the red car from which Fletcher was caught fleeing as her CD player.

Similarly, Eric Harms testified that on March 19, 2007, he drove home from work around midnight in his 1989 blue four-door Caprice Classic. He parked the vehicle on 28th Street, across the street from his residence in Lincoln. He was awakened from his sleep to be informed that his vehicle had been broken into. Upon viewing his vehicle, Harms was able to confirm that his car had been broken into, and he informed officers that his car stereo had been removed from the dashboard and that he was missing a CD holder containing approximately 300 CDs. The bar code on the car stereo found in the red car from which Fletcher was caught fleeing matched the serial number on the original car stereo box provided by Harms. Harms testified that he had purchased the car stereo in June 2005 for approximately $120 and estimated its current value between $50 and $75. He estimated the value of the CDs to be between $400 and $500 and the value of the CD case at $20 to $30.

On April 5, 2008, the jury found Fletcher guilty of burglary, theft by unlawful taking, possession of burglar's tools, and two counts of theft by receiving stolen property. The state district court determined Fletcher was a habitual criminal and sentenced him to prison terms of 15 to 30 years for the burglary, 15 to 30 years for the theft by unlawful taking, 10 to 25 years for possession of burglar's tools, 6 months for one count of theft by receiving stolen property, and 1 year for the other count of theft by receiving stolen property.

B. Direct Appeal

Fletcher appealed his convictions and sentences to the Nebraska Court of Appeals (Appeal No. A-08-723). (Filing No. 10-3 at ECF 33-85; Filing No. 11-3 at ECF 2-4.) The same lawyer represented Fletcher at trial and on direct appeal. The Nebraska Court of Appeals affirmed Fletcher's convictions and sentences in a written opinion dated September 1, 2009. See Fletcher, 2009 WL 2767720. The Nebraska Supreme Court denied a petition for further review of the issues on November 18, 2009. (Filing No. 11-3 at ECF 4.)

C. First Postconviction Action and Appeals

Fletcher filed a motion for postconviction relief in the state district court on January 29, 2010. (Filing No. 10-4 at ECF 11-57.) On July 28, 2010, the state district court ordered an evidentiary hearing on some of Fletcher's claims, denied relief on all others, and appointed counsel to represent Fletcher in the postconviction proceedings. (Filing No. 10-4 at ECF 94-103.)

Fletcher appealed from the state district court's July 28 order (Appeal No. A-10-847).[1] (Filing No. 11-3 at ECF 6-7.) Through counsel, Fletcher filed a brief in the Nebraska Court of Appeals. (Filing No. 10-4 at ECF 135-42.) Fletcher also sought and received permission from the Nebraska Court of Appeals to file a pro se supplemental brief, but Fletcher failed to file the brief within the time specified by the Nebraska Court of Appeals. (Filing No. 11-3 at ECF 6.) The Nebraska Court of Appeals affirmed the state district court's judgment on June 28, 2011, and Fletcher did not petition the Nebraska Supreme Court for further review. (Filing No. 11-3 at ECF p. 7.) The state district court dismissed Fletcher's remaining postconviction claims on January 12, 2011. (Filing No. 10-5 at ECF 26-28.) Fletcher appealed (Appeal No. A-11-104). The Nebraska Court of Appeals denied relief on October 5, 2011, and the Nebraska Supreme Court denied a petition for further review on December 14, 2011. (Filing No. 11-3 at ECF 10-11.)

D. Second Postconviction Action and Appeal

Fletcher filed a second postconviction motion in the state district court on January 5, 2012. (Filing No. 10-6 at ECF 62-70.) The state district court denied the motion on March 12, 2013, finding all of Fletcher's claims both procedurally barred and meritless. (Filing No. 10-6 at ECF 91-100.) Fletcher attempted to appeal the court's order (Appeal No. A-13-316), but his appeal was dismissed as untimely by the Nebraska Court of Appeals on June 5, 2013. (Filing No. 11-3 at ECF 14.) The Nebraska Supreme Court denied a petition for further review on August 28, 2013. (Filing No. 11-3 at ECF 14.)

E. State Habeas Corpus Action and Appeal

Fletcher filed a petition for writ of habeas corpus in the state district court on December 5, 2013. (Filing No. 11-2 at ECF 64-69.) The state district court denied relief on January 21, 2014. (Filing No. 11-2 at ECF 102-03.) Fletcher appealed (Appeal No. A-14-108). The Nebraska Court of Appeals affirmed the state district court's judgment on August 12, 2014, and the Nebraska Supreme Court denied a petition for further review on October 15, 2014. (Filing No. 11-3 at ECF 20.)

F. Federal Habeas Corpus Action

Fletcher filed his habeas corpus petition in this court on October 29, 2014. (Filing No. 1.) Respondent filed an answer, brief, and the relevant state court records in response to the petition. (Filing Nos. 10, 11, 12, and 13.) Fletcher filed a brief in support of his ...


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