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Jacob v. Frakes

United States District Court, D. Nebraska

November 30, 2016

STEVEN M. JACOB, Petitioner,
v.
SCOTT FRAKES, Respondent.

          MEMORANDUM AND ORDER

          LYLE E. STROM, Senior Judge.

         This 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.

         BACKGROUND

         On 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[1] filed voluminous state court records. See Filing Nos. 57-88.[2]

         On 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).

         After 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.

         On 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).

         On 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).

         DISCUSSION

         Petitioner 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.

         In his 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 as moot.

         Respondent 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.

         As part 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.

         Petitioner's 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).

         The 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.

         Petitioner's 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).

         Petitioner 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 granted.

         In his 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. 205 ...


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