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Moss v. Frakes

United States District Court, D. Nebraska

May 5, 2017

BOBBY J. MOSS, Petitioner,
v.
SCOTT FRAKES, Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         Petitioner 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 for decision.

         I now deny the petition with prejudice. My reasons for doing so are set forth below.

         Background

         During 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[1] 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 in prison.

         The 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.

         A 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 2[2].) A petition for further review was submitted to the Nebraska Supreme Court. However, it was denied.

         Respondent 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 degree).
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 testified.
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.

         Overview of Applicable Law

         Three 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.

         I 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.

         Exhaustion and Procedural Default

         As set forth in 28 U.S.C. § 2254:

         (b)(1) 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 process; or
(ii) circumstances exist that render such process ineffective to protect the ...

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