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Smith v. Frakes

United States District Court, D. Nebraska

July 31, 2017

WILLIAM E. SMITH, Petitioner,
v.
SCOTT R. FRAKES, Respondent.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE

         William E. Smith (Smith or Petitioner) has filed a petition for writ of habeas corpus challenging his state convictions. The Respondent has filed an answer, the relevant portions of the record below, and a brief.

         Smith has not directly responded to Respondent's brief. Instead he sought a stay and abeyance order and then, after that motion was denied for failure to show good cause why the motion should be granted[1], he filed a second motion for leave to file another stay and abeyance motion which was also denied.

         After an earlier extension, Petitioner's deadline for submitting a responsive brief was Monday, July 17, 2017. (See filing no. 31.) Although Smith has tried to postpone the day of reckoning, that day has now come. The petition for writ of habeas corpus will be denied with prejudice and no certificate of appealability will be issued.

         Smith's claims are either procedurally defaulted or lack substantive merit. Concisely, I next explain why that is so.

         Brief Background

         Smith was involved in an altercation in 2008 where he shot a man after a fight ensued outside a “Gentlemen's Club.” Consequently, the State charged Smith with one count of attempted second degree murder, a Class II felony; one count of first degree assault, a Class III felony; and one count of use of a weapon to commit a felony, a Class III felony. Following a trial, a jury found Smith guilty of the crimes charged. Smith was sentenced to 25 to 35 years of imprisonment for attempted second degree murder and 15 to 20 years of imprisonment for first degree assault, to run concurrently. He was sentenced to 15 to 20 years of imprisonment for use of a weapon to commit a felony, to run consecutively with the other sentences.

         On direct appeal, the Nebraska Supreme Court affirmed the convictions except for the attempted second-degree murder conviction. As to that charge, the court reversed and remanded for a new trial. State v. Smith, 822 N.W.2d 401 (Neb. 2012) (observing that the Nebraska Supreme Court had in effect changed the law after Petitioner's trial and it had created the crime of attempted voluntary manslaughter; Petitioner's trial counsel was not ineffective for failing to request an instruction on a law that had not yet been announced by the Nebraska Supreme Court, but remanding for a new trial and the application of the new law).

         In lieu of a new trial, Smith pled no contest to an amended charge of attempted voluntary manslaughter. For that plea, he was sentenced to 20 months to 5 years of imprisonment, to be served concurrently with his prior sentence of 15 to 20 years of imprisonment for first degree assault. The prior sentence of 15 to 20 years of imprisonment for use of a weapon to commit a felony remained consecutive to the other sentences.

         Smith then filed a motion for post-conviction relief. The Nebraska Supreme Court affirmed the denial of that motion. Among other things, the Nebraska Supreme Court ruled that:

Smith's convictions for first degree assault and use of a weapon to commit a felony were final judgments, and his [later no contest] plea without challenging the information did not affect those convictions. Therefore, Smith's contention-that his plea to a “reduced charge of attempted voluntary manslaughter ... effectively eradicated and eliminated the charges of first degree assault and use of a weapon”-is without merit.

State v. Smith, 883 N.W.2d 299, 307 (Neb. 2016).

         Claims

         In Claim One, Petitioner asserts that he: (A) was denied due process of law when the assault and weapons convictions were not also reversed; (B) was denied effective assistance of trial counsel regarding the assault and weapons convictions; and (C) was denied due process of law regarding the assault and weapons convictions because of the multiple suggestive lineups that took place prior to the in-court identification. In Claim Two, Petitioner asserts that, regarding the proceedings on remand, Petitioner's entry of a plea for attempted voluntary manslaughter in those proceedings was induced by ineffective assistance of counsel.

         Analysis

         I agree with Respondent that (1) Ground A of Claim One, Ground C of Claim One, and Claim Two have been procedurally defaulted; and (2) Ground B of Claim One has no substantive merit.

         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 ...

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