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Dubray v. Hansen

United States District Court, D. Nebraska

August 18, 2017

DOMINICK DUBRAY, Petitioner,
v.
BRAD HANSEN, Warden, Tecumseh Prison, Respondent.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE

         Dominick 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.

         Background

         Dubray 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 Matthew's father.

         Dubray 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 them.

         Four 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.

         After 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.

         He told 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.

         On 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.

         Two new 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.

         Dubray 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.

         This habeas petition followed. Respondent does not assert that Petitioner's action is time-barred.

         Claims

         I 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. 6.)
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. (Id.)
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.

         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 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 process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

28 U.S.C. § 2254(b)(1).

         The 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.

         O'Sullivan v. Boerckel,526 ...


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