United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
1991, Petitioner, David Carl Phelps, was convicted by a jury
of kidnapping a 9-year-old girl, Jillian Dee Cutshall, who
was last seen in Norfolk, Nebraska, on August 13, 1987.
Phelps was sentenced to life imprisonment by the District
Court of Madison County, Nebraska. His conviction and
sentence were affirmed by the Nebraska Supreme Court, see
State v. Phelps, 490 N.W.2d 676 (Neb. 1998)
(“Phelps I”), and several subsequent
motions for post-conviction relief have been denied. Phelps
now seeks federal habeas relief under 28 U.S.C. §
2254 and claims actual innocence in order to overcome
procedural default and untimeliness.
to Phelps' claim of actual innocence is newly discovered
evidence, in the form of photocopied pages of a handwritten
diary that allegedly were mailed to a man named John R.
Oldson while he was standing trial for murder in 2013. Phelps
alleges the diary was kept by a woman named Jean Backus, who
wrote that she and her husband, Wetzel, along with
Wetzel's brother, Chauncey, had kept girls shackled in a
cave on their ranch near Chambers, Nebraska (located about 75
miles west of Norfolk), and performed sex acts on them. The
author of the diary allegedly found one of the girls,
“Jill Dee, ” while en route to Fremont, Nebraska
(located about 75 miles southeast of Norfolk); the girl
evidently was on foot and not wearing any clothes. According
to the diary, the girl died while giving birth on June 2,
diary indicates that Oldson's alleged victim, a young
woman named Cathy Beard (identified as “Kathy” in
the diary), who was reported missing on May 31, 1989, had
voluntarily participated in the sex acts but was placed in
shackles when she wanted to take Jill to the sheriff or a
doctor. Beard allegedly died in September 1989 after Jean
Backus ran her over with a pickup truck. The diary also
describes the imprisonment and sexual abuse of two other
girls, Sharon Bald Eagle and Karen Weeks, who went missing in
1984 and 1987, respectively.
careful review, the court finds the newly discovered evidence
is not reliable and would not likely cause any reasonable
juror to have reasonable doubt as to his guilt. Because
Phelps cannot establish his gateway claim of actual
innocence, the amended petition for a writ of habeas corpus
will be denied as procedurally barred with respect to his
claims of ineffective assistance of counsel and as
time-barred with respect to all claims. The action will be
dismissed with prejudice, and a certificate of appealability
will not be issued.
action was commenced on May 15, 2014, when Phelps filed a pro
se petition in which he alleged, among other things:
On aproximately [sic] May 1[, ] 2012, I was made
aware of a diary detailing the abduction, rape, and death of
9 year old Jillian Dee Cutshall, the child I am accused of
kidnapping. I was unable to obtain a copy of the diary from
the attorney for John Oldson, but filed a Post[-] conviction
for an evidentiary hearing to find out if the diary is true,
and vacate my sentance [sic] if it was shown true.
The Judge denied my request for an attorney who could assist
in this investigation.
(Filing No. 1 at CM/ECF p. 10). After reviewing the
petition and some materials that were filed a later,
including photocopied pages of the diary with transcription,
the court appointed the Federal Public Defender to represent
Phelps and directed that an amended petition be filed (Filing
amended petition was filed on March 27, 2015, in which Phelps
alleged that his gateway claim of actual innocence is
supported by at least the following evidence:
1. On August 13, 1987, nine-year-old Jill Cutshall of
Norfolk, Nebraska, disappeared. Her body has never been found
and no forensic evidence has linked Phelps to the crime.
2. One of the key pieces of evidence admitted against David
Phelps at trial was a “confession” videotaped by
KMTV news reporters. The taping was arranged by Roy Stephens,
a private investigator who had become involved in the case at
the request of Jill Cutshall's mother, Joyce. Stephens, a
convicted felon, was a self-trained investigator working for
a firm operating under the name “Interstate Bureau of
3. The events leading up to the taped interview are largely
undisputed and are important both to Phelps' actual
innocence claim and to his substantive constitutional claims.
On January 4, 1989, Stephens arranged for television
reporters with whom he had become acquainted to come to
Norfolk, promising them a front seat to a break in the Jill
Cutshall investigation. With the reporters waiting in
Stephens' hotel room, Stephens and his assistant lured
Phelps to the Wood Duck wildlife preserve [located about 15
miles southeast of Norfolk], gave him a shovel, ordered him
to show them where Cutshall was buried, followed him with a
gun for more than an hour, and threatened to kill him and his
family. After at least 90 minutes of marching Phelps around
the preserve, with Phelps repeatedly asserting that he had no
idea where Cutshall was, Stephens fired his gun into the air
from behind Phelps. A startled Phelps stopped walking. In
response to the shot, Phelps stated that his friend Sam
Arbogast had told him that Cutshall was buried in the
cemetery section of the preserve.
4. Phelps and the two private investigators drove to the Wood
Duck Cemetery, where Stephens again demanded that Phelps show
them where Cutshall was buried. After walking to an area
under some trees where Phelps said he had heard Cutshall was
buried, Phelps began digging into the frozen ground. Twenty
minutes or so later, with Phelps visibly fatigued, Phelps
told Stephens he was ready to talk about Cutshall. Phelps
then claimed that his friend, Kermit Baumgartner, had woken
him on August 13, 1987, after a night of drinking.
Baumgartner told Phelps that he had Jill Cutshall out in his
car and that they were going for a ride. Phelps joined
Baumgartner and Cutshall, having no idea of the circumstances
under which Cutshall had encountered Baumgartner. Baumgartner
drove Phelps and Cutshall to the Wood Duck area. Phelps
realized the nature of Baumgartner's plan when
Baumgartner began to sexually assault Cutshall. Phelps
initially held on to Cutshall while Baumgartner assaulted
her, and Phelps himself became aroused. However, Phelps said
that he then became nervous and told Baumgartner that they
should leave. Baumgartner told Phelps to take the car and go
by himself, so Phelps drove off. According to Phelps,
Cutshall was alive and with Baumgartner the last time he saw
5. After Mr. Phelps finished this story, Stephens and his
assistant walked Phelps back to the van. They then drove
Phelps back to Stephens' room at the Econolodge, where
the news reporters were waiting. With Stephens and his
assistant in the room, the reporters recorded Phelps relating
the same story. At the conclusion of the interview, Stephens
contacted Joyce Cutshall and asked them to bring the police
to the Econolodge. The police came and arrested Phelps.
6. At the police station, Mr. Phelps was ushered into an
interview room by Norfolk Police Detective Steve Hecker, one
of the lead officers assigned to Cutshall's case. Mr.
Phelps told Detective Hecker that he had fabricated the
entire story out of fear for his life. Nonetheless, the
videotaped “confession” was admitted into
evidence at trial over Phelps' objection. That
“confession” was the centerpiece of the
prosecution's case against Phelps.
7. Against this backdrop, new evidence has come to light
which will establish, as Phelps has long asserted, that he is
actually innocent of this crime. The new evidence is evidence
that other persons abducted Jill Cutshall. Evidence that
others perpetrated the crime is contained, first, in the
above-mentioned diary. The diary came to light during the
prosecution of John Oldson for the murder of Cathy Beard. The
diary is alleged to have been written by a woman named Jean
Backus between the years 1984 and 1989. It recounts in
graphic detail the imprisonment, rape, and eventual deaths of
3 girls on the Backus ranch near Chambers. One of the women
in the diary is identified as Jill Cutshall, and another
Oldson's alleged victim, Cathy Beard.
8. The second admission is a jailhouse confession made to a
prisoner at the Lincoln Correctional Center. The prisoner
wrote to attorneys at the Iowa/Nebraska Innocence Project
that his cellmate had bragged about the Cutshall abduction
and how he had gotten away with it. The prisoner asked to be
able to speak with representatives from the Innocence Project
in person, but that meeting apparently did not take place.
(Filing No. 14 at CM/ECF pp. 3-6). Phelps further
alleged that the newly discovered evidence “entitles
him to full discovery and an evidentiary hearing”
(Filing No. 14 at CM/ECF p. 6, ¶ 9).
constitutional claims are alleged in the amended petition,
including: (1) a claim regarding the admission of the
videotaped statement, (2) a claim regarding the denial of
motion for a change of venue, (3) a claim regarding the
overruling of a challenge to the jury array, (4) a claim
regarding an alleged lack of proof that venue in Madison
County was proper, and (5-10) six claims of ineffective
assistance of counsel. It is claimed Phelps' trial
attorney erred by failing to impeach two witnesses, by
failing to investigate alternative suspects, by failing to
hire an expert on coerced confessions, by calling a mentally
disabled alibi witness to testify, by advising Phelps not to
testify, and by making derogatory remarks about Phelps during
initial review of the amended petition, the court determined
that the case should be progressed and, because Phelps
indicated his actual innocence claim would require discovery
and an evidentiary hearing, requested input from counsel
(Filing No. 16). Thereafter, on June 3, 2015, the
court approved a jointly proposed schedule which called for
Respondent to file applicable state court records, an answer,
and a brief, for Phelps to file a responsive brief, and for
Respondent to file a reply; no discovery was permitted
(Filing No. 18).
state court records were filed on June 30, 2015 (Filing No.
19). An answer was filed on July 31, 2015, in which
Respondent generally denied Phelps' allegations and
asserted as affirmative defenses that “Petitioner's
habeas petition was not timely filed and is barred by the
limitations period set forth in 28 U.S.C. §
2244(d)” and “Petitioner's Amended Petition
alleges claims that are procedurally defaulted” (Filing
No. 20 at CM/ECF p. 3, ¶¶ 14-15). In a
brief filed on August 14, 2015, Respondent clarified that
while he was asserting the statute of limitations defense
with respect to all ten habeas claims, he was only asserting
procedural default with respect to Phelps' six claims of
ineffective assistance of counsel (Filing No. 23 at
CM/ECF pp. 9-10). He indicated that Phelps other claims
were rejected by the Nebraska Supreme Court on direct appeal
(Filing No. 23 at CM/ECF p. 10).
September 14, 2015, Respondent filed portions of the Nebraska
Supreme record in State v. John R. Oldson, Case No.
13-562, on appeal from the second degree murder conviction of
Oldson in the District Court of Howard County, Nebraska
(Filing No. 25). This filing pertains to the alleged
Backus diary and includes: (1) two orders entered by the
Howard County District Court, sustaining the State's
objections to the diary and denying a motion for new trial
based on newly discovered evidence relating to the diary
(Filing No. 25-1); (2) an index of all transcribed
proceedings (i.e., the “Bill of
Exceptions”) in the District Court (Filing No.
25-2); (3) a transcript of the hearing on the
State's objections to the diary, held on February 4, 2013
(Bill of Exceptions, pp. 916-960) (Filing No. 25-3);
(4) a transcript of Oldson's offer of proof regarding the
diary, made on February 6, 2013 (Bill of Exceptions, pp.
1430-36) (Filing No. 25-4); (5) a transcript of the
hearing on Oldson's motion for new trial, held on May 6,
2013 (Bill of Exception, pp. 1789-1840) (Filing No.
25-5); (6) copies of trial exhibits (Ex 227-250)
offered at the hearing on the State's objections and as
part of Oldson's offer of proof (Filing No.
25-6); (7) the deposition of Jean Backus (Ex 252)
taken on January 16, 2013 (Filing No. 25-7); (8) a
copy of the diary pages with transcription (Ex 286) (Filing
No. 25-7 at CM/ECF pp. 1-55); (9) a Nebraska State
Patrol laboratory report on DNA analysis of the mailing
envelope for the diary pages (Ex 296), indicating a match
with Douglas D. Olson (Filing No. 25-8 at CM/ECF pp.
56-57); and (10) highlighted diary pages (Ex 253)
(Filing Nos. 25-9, 25-10).
November 12, 2015, Phelps filed a motion for an evidentiary
hearing on the claim of actual innocence claim (Filing No.
29). The court ordered briefing on this motion and
directed Phelps to “[s]pecify why an evidentiary
hearing is necessary” and to “[d]escribe in
detail what evidence he intends to offer at such
hearing” (Filing No. 31). On January 27, 2016,
Phelps withdrew his request for an evidentiary hearing and
asked for additional time to respond to Respondent's
initial brief (Filing No. 32), which the court
granted (Filing No. 33).
brief was filed on March 24, 2016 (Filing No. 35).
The brief only discusses the alleged Backus diary-no mention
is made of the other alleged new evidence involving a
jailhouse confession by an inmate at the Lincoln Correctional
Center. Phelps is therefore deemed to have abandoned his
claim that someone else has confessed to kidnapping Jill
Cutshall. See NECivR 7.1(a)(1)(A) (“A
party's failure to brief an issue raised in a motion may
be considered a waiver of that issue.”).
replied on August 5, 2016 (Filing No. 43) and filed
additional evidence (Filing No. 42). The additional
evidence includes: (1) a copy of the Nebraska Supreme Court
opinion issued on June 10, 2016, affirming Oldson's
conviction for second degree murder and sentence of life
imprisonment (Filing No. 42-1); (2) court records
for the case of State v. Douglas D. Olson, No.
CR13-76, filed in the County Court of Valley County,
Nebraska, and charging Olson with tampering with evidence
(Filing No. 42-2); (3) copies of investigation
reports regarding Olson (Filing No. 42-3); (4) the
deposition of Johnny Lee Ervin, IV, taken on June 17, 2014,
in connection Olson's criminal case (Filing No.
42-4); and (5) the declaration of Respondent's
counsel (Filing No. 42-5) authenticating items
(2)-(4) above and stating they were sent to Phelps'
attorney on October 27, 2015.
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) establishes a one-year limitations
period for state prisoners to file federal habeas relief that
runs from the latest of four specified dates. See 28
U.S.C. § 2244(d)(1). Phelps' habeas petition was
unquestionably filed out of time.
direct appeal from his conviction and sentence concluded on
December 2, 1992, when the Nebraska Supreme Court issued its
mandate (Filing No. 19-1 at CM/ECF p. 3).
Phelps' next state court filing was over twelve years
later, on July 20, 2005, when he sought DNA testing on
certain physical evidence, including Jill Cutshall's
clothing, which had been discovered at a wildlife management
area near Stanton, Nebraska, on November 7, 1987 (Filing No.
19-3 at CM/ECF p. 15). The Madison County District
Court's denial of DNA testing was affirmed by the
Nebraska Supreme Court, see State v. Phelps, 727
N.W.2d 224 (Neb. 2007) (“Phelps II”), and its
mandate issued on February 14, 2007 (Filing No. 19-1 at
CM/ECF p. 6).
two years passed before Phelps filed his first motion for
post-conviction relief, on September 29, 2009 (Filing No.
19-26 at CM/ECF pp. 1-22). The motion was denied by
the Madison County District Court on April 15, 2010, and
Phelps did not appeal (Filing No. 19-26 at CM/ECF pp.
28-31; Filing No. 14 at CM/ECF p. 2, ¶5).
A second motion for post-conviction relief was filed on
February 11, 2011, and denied on May 3, 2011 (Filing No.
19-26 at CM/ECF pp. 32-37, 40-43). Again, no appeal
was taken (Filing No. 14 at CM/ECF p. 2, ¶6).
Phelps' third, and most recent, motion for
post-conviction relief was filed on August 9, 2012, and
denied by the Madison County District Court on October 3,
2012 (Filing No. 19-4 at CM/ECF pp. 83-84, 90-92).
The Nebraska Supreme Court affirmed the denial, see State
v. Phelps, 834 N.W.2d 786 (Neb. 2013) (“Phelps
III”), and issued its mandate on July 2, 2013
(Filing No. 19-1 at CM/ECF p. 9).
present action was filed on May 5, 2014 (Filing No.
1). While this filing was made within one year
following the conclusion of the third post-conviction
proceeding, the limitations period began running on
“the date on which the judgment became final by the
conclusion of direct review, ” 28 U.S.C. §
2244(d)(1)(A), which was December 2, 1992. The running of the
statute of limitations is tolled while a properly filed
application for state post-conviction or other collateral
review is pending, see 28 U.S.C. § 2244(d)(2),
but Phelps waited many years after his direct appeal before
seeking any post-conviction relief. Because the limitations
period had already expired, the filing of post-conviction
motions in state court did extend the time for filing a
federal habeas petition. See Jackson v. Ault, 452
F.3d 734, 735 (8th Cir. 2006) (“The one year AEDPA
limit for federal habeas filing cannot be tolled after it has
also provides that “[a]n 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 ... the applicant has exhausted the remedies
available in the courts of the State ....” 28 U.S.C.
§ 2254(b)(1)(A). The United States Supreme Court has
explained the habeas exhaustion requirement as follows:
Because the exhaustion doctrine is designed to give the state
courts a full and fair opportunity to resolve federal
constitutional claims before those claims are presented to
the federal courts ... state prisoners must give the state
courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State's
established appellate review process.
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999). A state prisoner must therefore present the substance
of each federal constitutional claim to the state courts
before seeking federal habeas corpus relief. In Nebraska,
“one complete round” ordinarily means that each
§ 2254 claim must have been presented in an
appeal to the Nebraska Court of Appeals, and then in a
petition for further review to the Nebraska Supreme Court if
the Court of Appeals rules against the
petitioner. See Akins v. Kenney, 410 F.3d
451, 454-55 (8th Cir. 2005). “In order to fairly
present a federal claim to the state courts, the petitioner
must have referred to a specific federal constitutional
right, a particular constitutional provision, a federal
constitutional case, or a state case raising a pertinent
federal constitutional issue in a claim before the state
courts.” Carney v. Fabian, 487 F.3d 1094, 1096 (8th
Cir. 2007) (internal citation and quotation omitted).
“no state court remedy is available for the unexhausted
claim”-that is, if resort to the state courts would be
futile-“then the exhaustion requirement in §
2254(b) is satisfied, but the failure to exhaust
“provides an independent and adequate state-law ground
for the conviction and sentence, and thus prevents federal
habeas corpus review of the defaulted claim, unless the
petitioner can demonstrate cause and prejudice for the
default.” Armstrong v. Iowa, 418 F.3d 924, 926
(8th Cir. 2005) (quoting Gray v. Netherland, 518
U.S. 152, 162 (1996)). Stated another way, if a claim has not
been presented to Nebraska's appellate courts and is now
barred from presentation, the claim is procedurally
defaulted, not unexhausted. Akins, 410 F.3d at 456
concedes that the first four constitutional claims alleged in
the amended petition are exhausted, stating that “[t]he
Nebraska Supreme Court rejected Phelps' claims one
through four on direct appeal in Phelps Iby an
extensive and thorough analysis supported by the trial court
record” (Filing No. 23 at CM/ECF p. 10).
Respondent further states that Phelps “arguably raised
his ineffective assistance of counsel claims in his first
state postconviction proceeding, ” but points out that
he “did not appeal from the denial of postconviction
relief” (Filing No. 23 at CM/ECF p. 9).
Because claims five through ten of the amended petition did
not undergo “one complete round” of appellate
review in the state courts, they are procedurally barred.
that has been procedurally defaulted in the state courts will
not be entertained in a federal habeas corpus proceeding
unless the petitioner has shown “cause and
prejudice” to excuse the procedural default, or, in the
alternative, has shown there would be a “fundamental
miscarriage of justice” if the federal court declined
to consider the claim. Coleman v. Thompson, 501 U.S.
722, 750 (1991). The “fundamental miscarriage of
justice” exception is available only upon a
“showing, based on new evidence, that ‘a
constitutional violation has probably resulted in the
conviction of one who is actually innocent.'”
Brownlow v. Groose, 66 F.3d 997, 999 (8th Cir. 1995)
(quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
“To be credible, such a claim [of actual innocence]
requires petitioner to support his allegations of
constitutional error with new reliable evidence-whether it be
exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence that was not
presented at trial.” Schlup, 513 U.S. at 324.
“actual innocence” gateway through a procedural
bar is “an opportunity for a petitioner, aggrieved by
an allegedly defective trial and having inexcusably defaulted
the available remedies, to raise such a strong doubt to his
guilt that, in hindsight, [the reviewing court] cannot have
confidence in the trial's outcome....” Weeks v.
Bowersox, 119 F.3d 1342, 1354 (8th Cir. 1997) (quoting
Battle v. Delo, 64 F.3d 347 (8th Cir. 1995)). A plea
of actual innocence can also overcome AEDPA's one-year
statute of limitations for filing habeas petitions. See
McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013).
Phelps filed his third motion for post-conviction relief in
2012, claiming that the alleged Backus diary would prove he
was wrongfully convicted, he had only read about the diary in
newspaper accounts of the Oldson trial. The Madison County
District Court therefore had no difficulty in
“find[ing] that it need not conduct an evidentiary
hearing due to the absence of specific allegations regarding
any factual details which would support the general
conclusions regarding his acquittal” (Filing No.
19-4 at CM/ECF p. 91), and in denying
post-conviction relief. The Nebraska Supreme Court likewise
had no difficulty in affirming the district court's
decision, stating that “Phelps' allegations fall
far short of the ‘extraordinarily high' threshold
showing of actual innocence which he would be required to
make before a court could even consider whether his continued
incarceration would give rise to a constitutional
claim.” Phelps III, 834 N.W.2d at
Oldson's appeal, however, the Nebraska Supreme Court was
required to determine whether the Howard County District
Court had erred in ruling that the alleged Backus diary was
inadmissible because it was not properly authenticated.
Because establishing the authenticity of the diary is crucial
to the success of Phelps' gateway claim of actual
innocence, the Nebraska Supreme Court's discussion will
be set forth at length:
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(h) Sex Ranch ...