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Clayborne v. State

United States District Court, D. Nebraska

June 3, 2016

ROBERT E. CLAYBORNE JR., Petitioner,
v.
STATE OF NEBRASKA, Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         Petitioner 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.

         Respondent 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.

         I will 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.

         Claim One

         Claim 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.

         When 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 (Neb. 2002).

         If “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.

         This 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.

         Here, 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.

         Claim Two

         Claim 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 ...

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