United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
Stewart Newman (“Newman”) filed a petition for writ of habeas corpus under the provisions of 28 U.S.C. § 2254 challenging his conviction for first-degree sexual assault. The Respondent has filed an answer and a full and complete record of the state court proceedings. There is no need for an evidentiary hearing. The matter has been fully briefed. I now deny the petition with prejudice.
Newman’s Claims Claim One: Newman’s Fourteenth Amendment rights to due process and equal protection were violated when the Nebraska Court of Appeals dismissed his postconviction appeals because his appeals were perfected under Nebraska statutes.
Claim Two: Newman’s Fourteenth Amendment rights to due process and equal protection were violated when the state district court allowed the State’s late response to his postconviction motion and did not allow him time to reply to the State’s response.
Claim Three: Newman’s Fourth Amendment right to be free from unreasonable searches and seizures was violated when he was illegally arrested in his home without a warrant, and his Fourteenth Amendment right to due process was violated when false testimony was given and physical evidence was withheld at the suppression hearing on his arrest.
Claim Four: Newman’s Fourth Amendment right to be free from unreasonable searches and seizures was violated when law enforcement illegally searched and seized his password-protected laptop computer, and his Fourteenth Amendment right to due process was violated when false testimony was given and physical evidence was withheld at the suppression hearing on the search and seizure of his computer.
Claim Five: Newman’s Fourteenth Amendment rights to due process and equal protection were violated when the Douglas County Jail illegally detained him.
Claim Six: Newman received ineffective assistance of counsel in violation of the Sixth Amendment when trial counsel and appellate counsel (who were the same) failed to raise key issues at the suppression hearing, at trial, and on direct appeal.
(Filing no. 1; Filing no. 3.)
I rely primarily upon the thorough opinion of the Nebraska Court of Appeals for the factual summary of the evidence. State v. Newman, 838 N.W.2d 317, 321 (Neb.App. 2013) (holding that: (1) defendant was not “seized, ” within meaning of Fourth Amendment, when police officers asked him to accompany them to police station for interview; (2) defendant’s wife had actual or apparent authority to grant consent to law enforcement to search laptop computer; (3) defendant was not entitled to discharge on charges for visual depiction of child pornography on statutory speedy trial grounds; (4) evidence was sufficient to support conviction for first-degree sexual assault of child; and (5) sentences imposed were not abuse of discretion).
This case involves the first-degree sexual assault of a child and visual depiction of child pornography related to one young girl (“Jane”). She was approximately 10 years of age at the time of the events giving rise to the criminal charges.
In February 2010, Jane sent her mother a text message indicating that Newman had been “trying to have sex with [her].” Jane’s mother called the 911 emergency dispatch service and reported the allegations and then took Jane to “Project Harmony, ” where she was interviewed by a member of the Omaha Police Department’s special victims/child sexual assault unit.
Following Jane’s interview with law enforcement, Newman was arrested after he voluntarily went to the police station, was given his Miranda rights, and for all intents and purposes confessed in rather graphic detail to having sex with the child. Sometime later, Newman’s wife contacted law enforcement about suspecting that there was child pornography on a jointly owned laptop computer in Newman’s home. After obtaining her permission to search the computer, law enforcement searched the laptop, revealing a variety of suspected pornographic images of children, including photographs of Jane.
After a thorough evidentiary hearing was held and two suppression motions were denied, both sides agreed to a trial before a judge. The trial was held, and Newman was found guilty.
Among other things, there was specific evidence that:
Newman, while 37 or 38 years of age, engaged in a pattern of sexual conduct with a child, beginning when she was 6 years of age and continuing until she reported it at 10 years of age. The evidence indicates that the conduct included touching, licking [her labia], and rubbing of genitals and ejaculation on more than one occasion. Newman was convicted of first degree sexual assault of a child and six counts of visual depiction of child pornography related to photographs he took of the 10- year-old victim. Those photographs depict the child in the nude, posed, with her breasts and genitals exposed, and include an image of the child’s hand gripping Newman’s erect penis.
Id. at 335.
At the trial, Newman did not dispute that he had engaged in this inappropriate conduct, except to assert that there had never been penetration. He attempted to explain his behavior by indicating that the child in this case had asked questions about sex and that he thought these actions would “curb [her] curiosity” and “educate” her. Newman acknowledged that he took photographs of Jane that ...