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Phelps v. Frakes

United States District Court, D. Nebraska

September 30, 2016

SCOTT FRAKES, Respondent.


          Richard G. Kopf Senior United States District Judge.

         In 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.

         Central 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, 1989.

         The 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.

         After 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.

         I. BACKGROUND

         This 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 No. 7).

         An 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 Investigation.”
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 her.
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).

         Ten 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 the trial.

         Upon 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).

         The 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).

         On 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).

         On 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).

         Phelps' 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.”).

         Respondent 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.

         II. ANALYSIS

         The 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.

         Phelps' 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).

         Another 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).

         The 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 expired.”).

         AEDPA 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.[1] 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).

         When “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 n. 1.

         Respondent 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.

         A claim 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.

         The “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).

         When 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 792.[2]

         In John 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 ...

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