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Burton v. Frakes

United States District Court, D. Nebraska

March 17, 2017

KARNELL BURTON, Petitioner,
v.
SCOTT FRAKES, Respondent.

          MEMORANDUM AND ORDER

          Robert F. Rossiter, Jr. United States District Judge.

         This matter is before the Court on the Petition of Karnell Burton (“Burton”) for a Writ of Habeas Corpus under 28 U.S.C. § 2254. For the reasons stated below, the Petition is denied and no certificate of appealability shall issue.

         I. BACKGROUND

         In 2008, a drug sale turned violent caused the death of Timothy Thomas and the hospitalization of Marshall Turner. The State of Nebraska (“State”) charged Burton with first-degree murder, attempted second-degree murder, first-degree assault, and three counts of use of a deadly weapon to commit a felony. On October 29, 2009, a jury convicted Burton of manslaughter, attempted second-degree murder, first-degree assault, and three counts of use of a deadly weapon to commit a felony. Burton's trial counsel moved to set aside the conviction on one of the counts of use of a deadly weapon to commit a felony and the state trial court granted the motion. The trial court sentenced Burton to 80 to 130 years in prison. Burton appealed the conviction and assigned the following four errors:

1. The trial court violated Burton's rights under Nebraska's speedy trial act, Neb. Rev. Stat. § 29-1207, by allowing the State to file an amended information.
2. The trial court wrongfully denied Burton's motion for mistrial based on prosecutorial misconduct when the prosecutor referred to statements not in evidence during the State's rebuttal in closing arguments.
3. The trial court erred under the Nebraska Rules of Evidence, Neb. Rev. Stat. §§ 27-101 to 27-1013, by refusing to allow Burton to present evidence that two of the State's witnesses were members of a violent street gang.
4. The trial court abused its discretion by giving Burton an excessive sentence.

         On direct appeal, the Nebraska Supreme Court affirmed the trial court and rejected all four grounds. Burton's appellate counsel, who was also his trial counsel, withdrew after the Nebraska Supreme Court affirmed the sentence. Burton then moved for state post-conviction relief in Douglas County District Court, claiming thirteen grounds for relief and asking the district court to vacate the convictions and sentences. The district court denied Burton's motion without an evidentiary hearing. The Nebraska Court of Appeals affirmed the district court. Burton filed a petition for further review with the Nebraska Supreme Court based on two of the thirteen grounds. Burton claimed (1) his trial counsel was ineffective because he failed to protect Burton from vindictive prosecution and (2) the district court erred by failing to instruct the jury of a lesser included offense. The Nebraska Supreme Court denied Burton's petition and did not hear the case.

         On November 13, 2015, Burton filed this Petition for the Writ of Habeas Corpus under 28 U.S.C. § 2254, alleging ten grounds for relief. On March 17, 2016, Burton amended his petition to add another ground for relief. The eleven claims in Burton's amended Petition are:

1. Burton's trial counsel was ineffective for failing to object to the state district court's finding that a continuance was made at Burton's request.
2. Burton's trial counsel was ineffective for not filing a speedy trial discharge.
3. Burton's trial counsel was ineffective for failing to request a lesser included offense and jury instructions on a lesser included offense.
4. The trial court violated Burton's right to a speedy trial by allowing the State to file an amended information.
5. The trial court erred by refusing to allow Burton to prevent evidence that two of the State's witnesses were members of a violent street gang.
6. The trial court gave Burton an excessive sentence.
7. The prosecutor committed prosecutorial misconduct by referring to statements not in evidence during the State's rebuttal in closing arguments.
8. The trial court committed plain error or abused its discretion by allowing the State to file a second amended information.
9. The trial court committed plain error or abused its discretion by granting a continuance when the defendant asked for the continuance in the alternative.[1]
10. The district court committed plain error by failing to instruct the jury on a lesser included offense.
11. Burton's trial counsel was ineffective because he failed to protect Burton from vindictive prosecution.

         II. ...


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