United States District Court, D. Nebraska
STEVEN M. JACOB, Petitioner,
SCOTT FRAKES, Respondent.
MEMORANDUM AND ORDER
E. STROM, Senior Judge.
matter is before the Court on two motions by the petitioner,
Steven M. Jacob (“petitioner” or
“Jacob”) (Filing Nos. 202 and 210).
Petitioner has moved the Court to supplement the state court
record (Filing No. 202) and filed a motion for
status of the case (Filing No. 210). After review of
the motions, the briefs, and the applicable law, the Court
finds as follows.
April 23, 2010, petitioner filed his habeas petition under 28
U.S.C. § 2254 (Filing No. 1). On June 22, 2010,
Judge Bataillon found that six of petitioner's claims
were potentially cognizable for federal court review (Filing
No. 6). On August 2, 2010, the Court granted
petitioner's motion (Filing No. 7) to amend
(Filing No. 10). On November 9, 2010, the Court
again granted petitioner's motion (Filing No.
21) to alter or amend (Filing No. 24). On
May 13, 2011, the respondent filed voluminous state court
records. See Filing Nos. 57-88.
January 6, 2012, petitioner filed a motion for additional
documents (Filing No. 105). On July 31, 2012, the
Court ordered the parties to advise the Court of the Nebraska
Supreme Court's entry of judgment in Jacob's pending
state court case, #S-11-439); denied without prejudice
Jacob's motion for additional documents; and advised
petitioner that the Court will direct respondent to file
additional state court documents if necessary for resolution
of the case (Filing No. 118). On April 17, 2014,
after the Nebraska Supreme Court issued an order affirming
the state district court's denial of Jacob's
post-conviction relief, Jacob again sought to amend his
petition (Filing No. 128). On April 21, 2014, the
Court granted Jacob's motion (Filing No. 129).
an additional motion to continue was granted (Filing No.
135), petitioner filed his amended petition for a writ of
habeas corpus in accordance with 28 U.S.C. § 2254 on
August 4, 2014 (Filing No. 136). On December 17,
2014, the Court ordered that “[b]ecause voluminous
state court records ha[d] already been filed . . .
[r]espondent [would] not be required to refile all the state
court records. Rather, he must file a hyperlinked index of
the Designation of State Court Records . . . .” (Filing
No. 141 at 1). The Court also required that
respondent file “all relevant state court records that
are not included . . . by December 22, 2014.”
(Id.) In accordance with the Court's December
17, 2014, order, respondent filed additional state court
records not previously filed with this Court. See
Filing No. 142.
March 2, 2015, the Court issued an order requiring Jacob to
file any motion seeking the filing of additional state court
documents to be made within 30 days (Filing No.
157). After additional motions to continue were
granted, see Filing Nos. 160, 165, and 167,
additional state court records were filed on June 29, 2015
(Filing No. 168). On July 8, 2015, Sean M. Conway
was appointed to represent Jacob in accordance with 18 U.S.C.
§ 3006A(a)(2)(B) (Filing No. 171). On October
9, 2015, additional state court records were again added to
the Court's record (Filing No. 179). On October
30, 2015, Mr. Conway moved to withdraw as Jacob's counsel
(Filing No. 180). The Court granted Mr. Conway's
motion on December 10, 2015, at which point petitioner was
again proceeding pro se (Filing No. 185).
February 10, 2016, the Court denied without prejudice
petitioner's motion (Filing No. 183) to certify
a question to the Nebraska Supreme Court (Filing No.
200). On March 2, 2016, petitioner moved to
supplement the current state court record (Filing No.
202). A day later, on March 3, 2016, the case was
reassigned to the undersigned (Filing No. 203). On
October 31, 2016, petitioner filed a motion for status
stating: “I hope that the Judge has been taking time to
go through the entire (lengthy) record. I would rather have
him do that than rush through it haphazardly . . . [b]ut . .
. would like to know . . . where the case is currently
at.” (Filing No. 210 at 1).
requests fourteen documents be included in the record
presently before the Court. See Filing Nos.
202 and 209. Petitioner first requests that the
transcript of the 1989 preliminary hearing held in Lancaster
County Court be included in the federal record (Filing No.
202 at 2). The requested document is already part of
the record and can be found at Filing No. 179-1. Accordingly,
petitioner's first request will be denied as moot.
second request, Jacob seeks the deposition of Dr. Cherry, an
exhibit from part of the bill of exceptions from
petitioner's civil suit, Schlichtman v. Jacob,
A-10-870 (Filing No. 202 at 4). The deposition of
Dr. Cherry is already in the federal record and can be found
at Filing No. 179-2. Therefore,
petitioner's request that it be included will be denied
argues “[t]he bill of exceptions for the civil trial is
. . . irrelevant to these habeas proceedings because it was
not part of the state court record submitted to or considered
by the Nebraska Supreme Court when upholding
[p]etitioner's convictions on direct and collateral
review.” (Filing No. 205 at 2). Petitioner
counters that the bill of exceptions for the civil suit is
relevant to his ineffective assistance of counsel claim and
“to show that the state court proceedings were
inadequate to preserve the [p]etitioner's rights.”
(Filing No. 209 at 2). The Court finds that
petitioner's request should be granted. Accordingly, the
respondent shall be required to file the bill of exceptions
in Schlichtman v. Jacob, A-10-870 as part of the
record before the Court.
of his second request petitioner states “[t]he records
from the Clay County Clerk's office regarding the
Ockinga's property and financial situation, as well as
the proof of the Etherton's ownership of the convenience
store are currently NOT in the federal record. Likewise, the
Ockinga's bankruptcy filing and divorce are NOT yet in
the federal record.” (Filing No. 202 at 7)
(emphasis in original). It is unclear to the Court from the
parties' filings whether these documents are contained
within the bill of exceptions from the civil suit. If they
are not contained therein, respondent shall also be required
to file them separately as part of the federal record.
third request is described by Jacob as the presentence report
(Id.). The respondent contends petitioner's
“subsequent explanation [of this document] limits his
request to three police reports by officers Barksdale, Beam,
and Splichal.” (Filing No. 205 at 2). The
parties disagree about whether the above-mentioned police
reports are contained within the Department of
Correction's copy of the presentence investigation
report. Compare Id. with Filing No. 209 at
3-4. In his April 20, 2016, filing, petitioner suggests that
“the Court allow [him] to provide it with a copy of
[his] 8 page Index to the Presentence Investigation Report,
allow [him] to provide the Court with copies of . . . four
law enforcement Reports listed above, and/or order the
[r]espondent to provide the Presentence Investigation Report
. . . .” (Filing No. 209 at 5).
Court will deny petitioner's request to file his “8
page Index to the Presentence Investigation Report.”
However, the Court will grant petitioner leave to file copies
of the police reports listed on page 4 of Filing No.
209 and deny petitioner's request that the
respondent file the presentence investigation report with the
Court. The Court finds that with respect to the presentence
investigation report, petitioner has failed to follow Judge
Zwart's December 29, 2015, order requiring that he
“explain why the document is relevant and a necessary
addition to the record.” (Filing No. 194 at
2). Petitioner's filings (Filing Nos. 202 and
209) fail to provide the Court with an explanation as to why
the presentence investigation report itself, aside from the
police reports petitioner requests to file, should be
included in the federal record. Accordingly, petitioner's
request that respondent file the presentence investigation
report will be denied.
fourth request is for the Nebraska Supreme Court's
records of the dismissed double jeopardy appeal, S-93-520
(Filing No. 209 at 5). Petitioner specifically
states that “[t]he most significant documents will be
the State's [m]otion (which includes their argument for
dismissal) and the State Supreme Court's Order of
dismissal.” (Id.) Respondent contends
“[t]he Supreme Court transcript for case # S-93-520 is
irrelevant since the premature interlocutory appeal was prior
to the judgment from which the [p]etitioner raises his
current habeas challenge.” (Filing No. 205 at
3). However, respondent adds that the documents “[are]
available and could be scanned and filed as part of the state
court records if requested or directed by this Court.”
(Id. at 4).
argues the documents are relevant for two reasons: (1)
“to show that the state court procedures were
inadequate to protect [p]etitioner's rights;” and
(2) “to show that the [r]espondent fails to distinguish
between the first and second [d]ouble [j]eopardy
claims.” (Filing No. 209 at 6). The Court
finds that petitioner's request for the Nebraska Supreme
Court's records in case number S-93-520 should be
fifth request, petitioner asks that “[t]he record that
was before the Federal Court that resulted in the decision,
Jacob v. Clarke, 52 F.3d 178 (8th Cir. 1995) . . .
[that] started in the U.S. District Court as Jacob v.
Thurber, 4:94-CV-3009 . . . be made part of the federal
record . . . .” (Filing No. 202 at 10).
Respondent provides “[p]resumably, if this Court needs
to review its records, it can do so.” (Filing No.