United States District Court, D. Nebraska
STEVEN M. JACOB, Petitioner,
SCOTT FRAKES, Respondent.
E. STROM, Senior Judge United States District Court.
matter is before the Court on a petition for a writ of habeas
corpus pursuant to the Antiterrorism and Effective Death
Penalty Act (“AEDPA”) (Filing No. 136).
Steven M. Jacob (“petitioner” or
“Jacob”) seeks relief from his state convictions
of first degree murder, second degree murder, and using a
firearm to commit a felony (Id.). In addition,
petitioner has moved to certify questions to the Nebraska
Supreme Court (Filing No. 224), and has filed an
objection (Filing No. 225) to the Court's March
13, 2017, Memorandum and Order (Filing No. 222).
After careful review of the voluminous record, the Court
finds as follows.
August 1989, petitioner's former girlfriend, Melody
Hopper (“Hopper”), and Jim Etherton
(“Etherton”) were murdered. State v.
Jacob, No. S-11-439, 1 (Neb. Jul. 10, 2013)
(“Jacob III”). The state initially prosecuted
Jacob for the murders of Hopper and Etherton, and he was
convicted of two counts of murder in the first degree and two
counts of using a firearm to commit a felony. State v.
Jacob, 494 N.W.2d 109, 113 (Neb. 1993) (“Jacob
I”). The Nebraska Supreme Court reversed Jacob's
convictions and remanded the case for a new trial, finding
that statements admitted into evidence in the trial
constituted inadmissible hearsay. Jacob III supra,
to retrial, Jacob filed a “plea in bar, ” which
the state district court treated as a motion to dismiss.
Id. at 2-3. Jacob's “plea in bar”
alleged prosecutorial misconduct as a claim triggering the
Double Jeopardy Clause. Id. Jacob's claim of
prosecutorial misconduct was denied by the state district
court. Id. The state district court noted,
“that substantially all of [Jacob's] allegations
are frivolous, scurrilous and without merit. There is not one
shred of evidence to support the bare allegations of
prosecutorial misconduct set forth by [Jacob].”
Id. at 3 (internal quotation marks omitted).
the Nebraska Supreme Court's remand, Jacob petitioned
this Court for a writ of habeas corpus arguing prosecutorial
misconduct as a bar to being subject to double jeopardy
(Id.). This Court denied his petition, and he
appealed to the United States Court of Appeals for the Eighth
Circuit (Id.). The Eighth Circuit affirmed the
denial of habeas relief finding that “Jacob has not
overcome the state court's finding of no prosecutorial
misconduct.” Jacob v. Clarke, 52 F.3d 178,
179-80 (8th Cir. 1995).
retrial in state district court, Jacob was subsequently found
guilty of one count of first degree murder, one count of
second degree murder, and two counts of use of a firearm to
commit the crimes (Jacob III supra, at 4). On direct
appeal to the Nebraska Supreme Court, Jacob was represented
by counsel, and he also filed a pro se brief addressing
issues Jacob asserts his appellate counsel refused to raise.
Id. at 4. See also Filing No. 136
at 12. The Nebraska Supreme Court affirmed Jacob's
convictions. State v. Jacob, 574 N.W.2d 117, 143
(Neb. 1998)(“Jacob II”).
filed a motion for state postconviction relief in 1999
(Filing No. 88-4 at 1). For unexplained reasons,
Jacob's state motion was left unresolved for a
substantial period of time (Id. at 10). On April 25,
2011, the state district court issued an order denying
Jacob's motion for postconviction relief stating,
“[t]he court has reviewed the files and records in this
case and finds that all of the contentions of Jacob are
either conclusory, do not constitute Constitutional
violations, were decided on direct appeal in State v. Jacob
II or involve issues of defense trial strategy.”
Id. at 10-11. The Nebraska Supreme Court
subsequently affirmed the state district court's denial
of postconviction relief holding that Jacob's claims
“are either procedurally barred or otherwise without
merit.” Jacob III supra, at 32.
April 23, 2010, while his state motion for postconviction
relief was pending, Jacob filed his habeas petition with this
Court pursuant to 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). After extensive
motion practice by the parties, the Court directed the
parties to have this case ready for disposition. Filing No.
211 at 1-4. Pursuant to this Court's order,
Jacob and Scott Frakes (“respondent”) filed
supplemental briefs on March 24, 2017, and April 24, 2017,
respectively (Filing Nos. 223, 226). In addition, Jacob filed
a motion to certify ten questions to the Nebraska Supreme
Court (Filing No. 224) and an objection (Filing No.
225) to the Court's March 13, 2017, order
clarifying the Final Progression Order (Filing No.
Objection to Court's March 13, 2017, Order
filed an objection to the Court's March 13, 2017, order
(Filing No. 222) denying his motion to order the
Clerk of the Court or the respondent to provide petitioner
with a page index of the number exhibits from Schlichtman
v. Jacob (Filing No. 225). Jacob claims he did
not receive a response from the Clerk of the Court after his
request for the index (Id. at 1). Jacob explains the
purpose of obtaining the page index is to verify specific
records are contained in the federal record. See id.
Jacob attached a list of specific exhibits that he wishes to
verify are in the federal record and states, “[i]f the
exhibits are in the federal courts record a part of [Filing
No. 216] then nothing more needs to be done.”
Id. Finally, Jacob requests an evidentiary hearing
in the event that the exhibits are not in the federal record
(Id. at 1).
Court has reviewed the list of exhibits attached to
Jacob's objection and verified that all of them are
included in Filing No. 216-3. Accordingly,
Jacob's objection to the Court's order will be
overruled. Furthermore, Jacob's request for an
evidentiary hearing with regard to this issue will be denied
Motion to Certify Questions to the Nebraska Supreme
moves this Court to certify ten questions to the Nebraska
Supreme Court (Filing No. 224). These ten questions
all revolve around Jacob's claim that Nebraska's
second degree murder statute is unconstitutional.
See Filing No. 224.
ability of the Nebraska Supreme Court to answer certified
questions is provided by statute.
The Supreme Court may answer questions of law certified to it
by the Supreme Court of the United States, a Court of Appeals
of the United States, or a United States District Court, when
requested by the certifying court, if there are involved in
any proceeding before it questions of law of this state which
may be determinative of the cause then pending in the
certifying court as to which it appears to the certifying
court there is no controlling precedent in the decisions of
the Supreme Court of this state. Such request shall not
obligate the Supreme Court to accept such request for
certification and the Supreme Court may, in its absolute
discretion, accept or reject such request for certification
as it shall in each case determine.
Neb. Rev. Stat. § 24-219. In addition, this Court's
local rules provide guidelines for the certification of a
question to the highest court of a state. “A party may
move to certify a question of state law to the highest court
of that state when it appears that (a) an issue of that
state's law is determinative of the case and (b) there is
no clear controlling state law precedent.” NECivR
discussed below, Jacob's claim that Nebraska's second
degree murder statute is unconstitutional is procedurally
barred, thus depriving this Court of subject matter
jurisdiction over that claim. See Coleman v.
Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d
640 (1991) (noting that the independent and adequate state
ground doctrine is jurisdictional). There are no
state law determinations necessary for resolution of
Jacob's claims. Accordingly, Jacob's motion to
certify questions to the Nebraska Supreme Court (Filing No.
224) will be denied.
Petition for Habeas Corpus
Standard of Review
state court has adjudicated a habeas petitioner's claim
on the merits, there is a very limited and extremely
deferential standard of review as to the facts and the law.
See 28 U.S.C. § 2254(d). With regard to the
deference owed to factual findings of a state court's
decision, a federal court is bound by those findings unless
the state court made a “decision that was based on an
unreasonable determination of the facts in light of evidence
presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(2). In addition, a federal court must presume
that a factual determination made by the state court is
correct unless the petitioner “rebut[s] the presumption
of correctness by clear and convincing evidence.” 28
U.S.C. § 2254(e)(1).
Section 2254(d)(1) states that a federal court may not grant
a writ of habeas corpus unless the state court's decision
“was contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d)(1). As explained by the Supreme
Court in Williams v. Taylor, 529 U.S. 362, 120 S.Ct.
1495, 146 L.Ed.2d 389 (2000), a state court acts contrary to
clearly established federal law if it applies a legal rule
that contradicts the Supreme Court's prior holdings, or
if it reaches a different result from one of the Court's
cases despite confronting indistinguishable facts.
Williams, 529 U.S. at 399. Furthermore, “it is
not enough for [the court] to conclude that, in [its]
independent judgment, [it] would have applied federal law
differently from the state court; the state court's
application must have been objectively unreasonable.”
Rousan v. Roper, 436 F.3d 951, 956 (8th Cir. 2006).
Supreme Court noted, “[i]f this standard is difficult
to meet, that is because it was meant to be.”
Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct.
770, 178 L.Ed.2d 624 (2011). The deference due to state court
decisions “preserves authority to issue the writ in
cases where there is no possibility fairminded jurists could
disagree that the state court's decision conflicts with
[Supreme Court] precedents.” Harrington, 562
U.S. at 102. In short, “[i]t bears repeating that even
a strong case for relief does not mean the state court's
contrary conclusion was unreasonable.” Id.
This high degree of deference only applies where a claim has
been adjudicated on the merits by the state court. See
Brown v. Luebbers, 371 F.3d 458, 460-61 (8th Cir. 2004)
(“[A]s the language of the statute makes clear, there