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Jacob v. Frakes

United States District Court, D. Nebraska

June 2, 2017

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


          LYLE E. STROM, Senior Judge United States District Court.

         This 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.


         In 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, at 2.

         Prior 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).

         Following 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).

         At 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”).

         Jacob 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.

         On 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. 222).


         I. Objection to Court's March 13, 2017, Order

         Jacob 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).

         The 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 as moot.

         II. Motion to Certify Questions to the Nebraska Supreme Court

         Jacob 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.

         The 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 7.4.

         As 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.

         III. Petition for Habeas Corpus

         A. Standard of Review

         When a 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).

         Furthermore, 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).

         As the 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 ...

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