United States District Court, D. Nebraska
ROBERT E. CLAYBORNE JR., Petitioner,
STATE OF NEBRASKA, Respondent.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
has filed a petition for a writ of habeas corpus attacking
his Nebraska conviction. Petitioner pled no contest to the
offenses of second degree assault and use of a deadly weapon
to commit a felony, for which he was later sentenced to an
aggregate period of 25 to 35 years’ imprisonment.
has answered and filed the state court records. I have
carefully reviewed those records which may be found at Filing
No. 13 and Filing No. 14. Briefs have been
submitted and considered.
deny the petition. The first claim is procedurally defaulted.
The second claim fails given the deferential standard of
review. Because these points are clear as to both the facts
and the law, I elaborate on my decision only briefly.
One, condensed and summarized, may be stated as follows:
Petitioner was denied due process in violation of the 14th
Amendment because (a) he was mentally incompetent to enter
pleas of no contest to the State’s charges, (b) the
State, the trial court, and his defense counsel all failed to
investigate and evaluate his mental competency before
allowing him to proceed with his pleas of no contest, and (c)
his pleas of no contest were invalid and involuntary due to
his mental incompetency.
Petitioner directly appealed after he entered his plea, a new
lawyer was appointed and that new lawyer did not present
Claim One in the direct appeal. Accordingly, when Petitioner
tried to assert the essence of Claim One in a post-conviction
action, the Nebraska Court of Appeals held that the claim was
procedurally defaulted since it could have been raised on
direct appeal but was not raised on direct appeal. (Filing
No. 13-5 at CM/ECF pp. 6-7.) This ruling was in
accord with a longstanding, firmly and neutrally applied
principle of Nebraska law. That is, “[a] motion for
postconviction relief cannot be used to secure review of
issues which were or could have been litigated on direct
appeal." Hall v. State, 646 N.W.2d 572, 579
“the last state court rendering a judgment in the case
‘clearly and expressly’ states that its judgment
rests on a state procedural bar, " a federal habeas
court is precluded from reviewing the claim unless the
prisoner can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal
law, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice. See,
e.g., Oglesby v. Bowersox, 592 F.3d 922, 924 (8th Cir.
2010). In other words, if state law requires that certain
procedural rules must be followed, the failure to follow
those rules may bar federal habeas review.
default rule applies only if the state decision is based on
independent grounds and is adequate to support the judgment.
See, e.g., Hunt v. Houston, 563 F.3d 695, 703 (8th
Cir. 2009). To be independent and adequate, a state
procedural rule must be “firmly established and
regularly followed." See id.
Petitioner has failed to show cause and prejudice. He has
also failed to show that absent further review, a miscarriage
of justice will take place. Indeed, as I shall next discuss,
the record clearly shows that Petitioner knew what he was
doing and was competent to enter a no-contest plea.
Two, condensed and summarized, may be stated as follows:
Petitioner’s trial counsel was ineffective for (a)
failing to investigate and evaluate his mental health
problems, and (b) failing to file a motion to suppress the
unlawful entry into his ...