United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE
Dubray (Dubray or Petitioner) has filed a § 2254 motion
seeking to set aside his murder conviction and sentence.
After reviewing the answer of the Respondent, the evidentiary
index and the briefs of the parties, the petition will be
denied with prejudice.
and Catalina Chavez had lived together for 2 to 3 years in
Alliance, Nebraska, with their child and Chavez' older
child from a previous relationship. Chavez' 16-year-old
half brother, Matthew Loutzenhiser, had also been living at
their house since June 2011. Mike Loutzenhiser, who lived in
Scottsbluff, Nebraska, was Chavez' stepfather and
was found guilty of killing Chavez and Mike Loutzenhiser. He
used at least one knife (and perhaps more) multiple times to
stab and kill his victims after a long night of drinking with
other people had been drinking with Dubray and his victims
until about 6:00 in the morning. Mike Loutzenhiser walked
with Dubray and Chavez back to their nearby house after
leaving the four others. A business surveillance camera
captured them walking back to the house around 6:00 a.m. The
killings took place at about 6:45 a.m.
the killings, Dubray stabbed himself numerous times. At least
one wound was very serious and life threatening. Dubray told
at least three witnesses, who were relatives or friends of
his, and who arrived at the scene after the killings, that he
wanted to die and did not want to go to prison.
one witness that his girlfriend Chavez was going to leave
him, and “I can't believe what I have done.”
Dubray was thinking straight enough that he had called one of
these witnesses on the phone to come over to the house to
take care of his small child. As the Nebraska Supreme Court
later observed, the case against Dubray was strong, and the
most damning evidence of Dubray's guilt was his own
statements to witnesses who had no reason to lie about them.
October 12, 2012, a jury found Dubray guilty of two counts of
murder and two counts of using a deadly weapon to commit a
felony. Dubray received two consecutive life sentences for
the murders and 30 to 40 years for each of the counts
regarding use of a deadly weapon.
and very experienced lawyers from the excellent Nebraska
Commission on Public Advocacy were appointed to represent
Dubray in the direct appeal. However, the direct appeal was
not successful. State v. Dubray, 854 N.W.2d 584
(Neb. 2014). (Dubray 1.) The decision spans roughly
43 pages on WestLaw.
then filed a state post conviction motion which was denied
without an evidentiary hearing. That decision was affirmed by
the Nebraska Supreme Court. State v. Dubray, 885
N.W.2d 540 (Neb. 2016) (Dubray 2). The decision
spans roughly 27 pages on WestLaw.
habeas petition followed. Respondent does not assert that
Petitioner's action is time-barred.
previously dismissed with prejudice a variety of claims
because they did not set forth any cognizable federal issues.
(Filing no. 7.) Summarized and condensed, the
remaining claims are these:
Claim One: Dubray was denied effective
assistance of trial counsel for failing to: (1) obtain a
competency hearing or examination; (2) move to suppress
certain exhibits; (3) call a single witness and present a
complete defense; (4) address the illegally seized property;
(5) raise that certain jurors were not questioned during voir
dire; (6) strike a pro-prosecution juror; (7) confront state
witnesses and properly cross examine them; (8) object to
prejudicial remarks from the prosecutor or the fact that no
evidence was presented at the sentencing hearing; and (9)
call a psychiatrist to determine mental competency. (Filing
no. 7 at CM/ECF p. 2; filing no. 1 at CM/ECF p.
Claim Two: Dubray was denied effective
assistance of appellate counsel for failing to: (1) raise
issues of competency and insanity or to attack trial counsel
for failing to do so; (2) appeal the denial of a suppression
motion; (3) raise the existence of biased pro prosecution
witnesses; and (4) attack trial counsel for lack of a zealous
defense such as the failure to present lay or expert
witnesses. (Filing no. 7 at CM/ECF p. 2.)
Claim Three: Dubray was denied due process
of law as a result of prosecutorial misconduct in that: (1)
the prosecutor failed to turn over exculpatory notes of
several witnesses some or all of whom may have been expert
witnesses; (2) the prosecutor misstated the evidence in
closing argument; (3) the prosecutor forced Dubray to appear
in court in leg shackles in front of the jury; (4) the
prosecutor failed to seek a competency hearing of Dubray; (5)
the prosecutor appeared as both a prosecutor and witness; and
(6) the prosecutor failed to call Megan Reza as a witness.
Claim Four: The trial court denied Dubray
due process of law when the trial judge failed to order a
competency hearing sua sponte. (Id.)
Summary of Decision
Respondent asserts, and I agree, that Claims One, Three, Four
and a portion of Claim Two have been procedurally defaulted
without a showing of anything sufficient to excuse the
default. Respondent asserts that the remainder of Claim Two
has no substantive merit. I also agree.
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 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
(ii) circumstances exist that render such process ineffective
to protect the rights of the applicant.
28 U.S.C. § 2254(b)(1).
United States Supreme Court has explained the habeas
exhaustion requirement as follows:
Because the exhaustion doctrine is designed to give the state
courts a full and fair opportunity to resolve federal
constitutional claims before those claims are presented to
the federal courts . . . state prisoners must give the state
courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State's
established appellate review process.
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