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Banks v. Frakes

United States District Court, D. Nebraska

July 15, 2016

ANTONIO BANKS, Petitioner,
v.
SCOTT FRAKES, Director of the Nebraska Department of Corrections, Defendant.

          MEMORANDUM OPINION

          LYLE E. STROM, Senior Judge United States District Court

         This matter is before the Court on the petitioner, Antonio Banks’ (“Banks” or “petitioner”) amended petition for a writ of habeas corpus (Filing No. 54). Liberally construed, Banks 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 Sixth and Fourteenth Amendments because the Nebraska state trial court (1) refused petitioner’s request to excuse several jurors for cause; (2) denied petitioner’s request for a change of venue; (3) failed to properly instruct the jury regarding lesser included offenses, petitioner’s defenses, and witness credibility determinations which negatively affected the jury’s “fact finding;” (4) prevented petitioner from cross examining witnesses regarding drug use; (5) inappropriately allowed the State to amend the charges against petitioner; and (6) failed to sustain petitioner’s motion for directed verdict even though the evidence against petitioner was insufficient. See id.

         Claim Two: petitioner was denied the effective assistance of counsel because his trial and appellate counsel failed to: (1) investigate and call witnesses in support of a self-defense theory; (2) hire an investigator to assist in defense strategy; (3) pursue and request a jury instruction “on self-defense;” and (4) assert that jury selection “was unconstitutionally tainted” because qualified jurors were excluded on the basis of race. See id.

         The respondent, Scott Frakes (“Frakes” or “respondent”) filed an answer to the amended habeas petition (Filing No. 63) as well as a brief in support of his answer (Filing No. 64). After a thorough review of the petition, the respondent’s answer and supporting brief, and the applicable law, the Court will deny Banks’ petition for a writ of habeas corpus and finds as follows.

         BACKGROUND AND PROCEDURAL HISTORY

         A jury found “petitioner guilty of first degree murder and use of a firearm to commit a felony” on March 9, 2007. (Filing No. 54 at 4). Banks was sentenced “to a term of life imprisonment . . . for first degree murder and to a consecutive term of not less than twenty years, nor more than thirty years . . . for the use of a firearm to commit a felony.” (Id. at 4-5). Petitioner appealed his conviction and sentence. On direct appeal, the Nebraska Supreme Court affirmed both Banks’ conviction and sentence after discussing and analyzing each of petitioner’s assignments of error. See State v. Banks, 771 N.W.2d 75 (Neb. 2009).

         On August 20, 2010, Banks filed his first petition for a writ of habeas corpus in federal court (Filing No. 1). On September 2, 2011, Judge Bataillon granted petitioner’s motion for a stay and abeyance giving Banks the opportunity to return to the Nebraska state courts and exhaust his unexhausted claims in a state postconviction setting (Filing No. 27). Following the conclusion of Banks’ postconviction proceedings, Judge Bataillon lifted the stay and abeyance and petitioner filed an amended petition on August 12, 2015 (Filing No. 54). On October 15, 2015, Judge Bataillon ordered respondent to file either a motion for summary judgment and accompanying brief or to produce the state court records in support of an answer (Filing No. 55). Respondent thereafter submitted his designation of state court records in support of his answer (Filing No. 58). On February 5, 2016, respondent filed his answer to the amended petition and a brief in support thereof (Filing Nos. 63 and 64). On March 3, 2016, this case was reassigned to the undersigned for disposition (Filing No. 66).

         LAW

         A. Exhaustion Requirement

As set forth in 28 U.S.C. § 2254:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that -
(A) the applicant has exhausted the remedies available in the courts ...

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