United States District Court, D. Nebraska
WILLIAM E. SMITH, Petitioner,
SCOTT R. FRAKES, Respondent.
MEMORANDUM AND ORDER
RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE
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.
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, he filed a second motion for leave to
file another stay and abeyance motion which was also denied.
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.
claims are either procedurally defaulted or lack substantive
merit. Concisely, I next explain why that is so.
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.
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).
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.
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).
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.
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.
and Procedural Default
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 ...