United States District Court, D. Nebraska
BOBBY J. MOSS, Petitioner,
SCOTT FRAKES, Respondent.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
has filed a motion for writ of habeas corpus pursuant to 28
U.S.C. § 2254 challenging his convictions for second
degree murder, manslaughter and use of weapon to commit a
felony. Respondent has answered and submitted the state court
courts. The parties have briefed the case, and it is now ripe
deny the petition with prejudice. My reasons for doing so are
set forth below.
a drug deal gone wrong, Moss shot three times and those three
bullets struck and killed a visibly pregnant woman. When the
woman died, the fetus expired as well. Moss asserted that he
was merely protecting himself from one or more persons who
were going to shoot him first. After a bench trial, Moss was
found guilty of second degree murder of the woman,
manslaughter of the fetus and use of a weapon to commit a felony.
He received consecutive terms that resulted in a total
sentence of a minimum of 65 years and a maximum of 100 years
same lawyer who represented Moss at trial perfected an appeal
to the Nebraska Court of Appeals. That appeal was not
successful. State v. Moss, No. A-05-1132, 2007 WL
91649 (Neb. Court of Appeals, 2007) (Moss 1.) No petition for
further review was submitted to the Nebraska Supreme Court.
second lawyer filed a post-conviction motion that was
unsuccessful. A third lawyer perfected an appeal. That appeal
was also unsuccessful. State v. Moss, No. A-05-1132,
2016 WL 2977349 (Neb. Court of Appeals, 2016) (Moss
A petition for further review was submitted to the Nebraska
Supreme Court. However, it was denied.
concedes, and I agree, that this action was timely filed.
Moss raises three claims. They are:
Claim One: Petitioner was deprived of effective assistance of
counsel because counsel failed to preserve for appeal the
constitutional challenge to Neb. Rev. Stat. Ann.
§ 28-392 (West) (murder of an unborn child in the second
Claim Two: Petitioner was denied effective assistance of
counsel when counsel failed to file a motion for new trial in
a timely manner after counsel learned that a defense witness
who was also a co-defendant, and who was cooperating with the
prosecution, refused to testify for Petitioner because the
prosecution told the witness, who was also a co-defendant,
that he would lose his plea deal if the witness/co-defendant
Claim Three: Petitioner was denied his Constitutional right
to call a witness/co-defendant to testify on Petitioner's
behalf because the prosecution improperly told the
witness/co-defendant that if he testified for the Petitioner,
the witness/co-defendant would lose his plea deal.
of Applicable Law
strands of federal habeas law intertwine in this case. They
are the law of exhaustion and procedural default, the
deference that is owed to the state courts when a federal
court reviews the factual or legal conclusions set forth in
an opinion of a state court, and the standard for evaluating
a claim of ineffective assistance of counsel.
briefly set out those principles now, so that I may apply
them later in a summary fashion as I review petitioner's
claims. I turn to that task next.
and Procedural Default
forth in 28 U.S.C. § 2254:
An 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-
(A) the applicant has exhausted the remedies available in the
courts of the State; or
(B) (i) there is an absence of available State corrective
(ii) circumstances exist that render such process ineffective
to protect the ...