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Smith v. Britten

United States District Court, D. Nebraska

March 27, 2018

GERALD D. SMITH, Petitioner,
FRED BRITTEN, Respondent.


          Richard G. Kopf Senior United States District Judge.

         Gerald D. Smith (Smith) has filed a timely petition for writ of habeas corpus. The Respondent has answered and filed the relevant state court records.[1] The matter has been briefed. I now deny the petition with prejudice and refuse to issue a certificate of appealability.

         In short, all of Smith's claims are procedurally defaulted. With regard to Claims One through Four, I separately and alternatively decide that, given the deference owed the decisions of the state courts, Smith is not entitled to relief.


         Summarized and condensed, Smith has five claims. They are set forth below.

         Claim One: Petitioner was denied due process of law when the trial court failed to order, on its own motion, an evaluation of Petitioner for competency purposes.

         Claim Two: Petitioner was denied due process of law and the right to counsel when the trial court allowed Petitioner to represent himself during part of the trial.

         Claim Three: Trial counsel was ineffective because trial counsel failed to raise the issue of Petitioner's competency to stand trial.

         Claim Four: The trial court denied Petitioner due process of law when the court refused to issue compulsory process to secure the attendance of Petitioner's witnesses.

         Claim Five: The trial court denied Petitioner due process of law when the trial court denied a motion for new trial (a) after having been apprised that Oscar Romero was threatening Petitioner in an effort to stop Petitioner from entering into a cooperation agreement; (b) because the trial court would not allow Petitioner to call his trial counsel as a witness; and (c) because the trial court precluded Petitioner from using a video and video equipment during trial while allowing the prosecutor to do so.


         I take the background of this case from the thorough but unpublished opinion of the Nebraska Court of Appeals that may be found at filing no. 8-3, to wit:

Smith was charged with five counts of possession with intent to distribute: amphetamine/methamphetamine. Three of the charges were Class ID felonies, and the other two were Class IC felonies. The charges arose after an informant told the Douglas County Sheriff's Office that an individual, later identified as Smith, was selling methamphetamine from a camper trailer parked in front of a house in Omaha. The informant subsequently made five controlled buys of methamphetamine from Smith, and he was later arrested. The public defender's office was appointed to represent Smith.
At a pretrial hearing, the State informed the trial court of a plea offer that had been made to Smith. The State offered to let Smith plead guilty or no contest to two counts of possession with intent to distribute a controlled substance, both Class II felonies, and the State would refrain from seeking to enhance his sentence under the habitual criminal statute. The trial court explained to Smith the possible consequences of not accepting the plea, should he be convicted of the original charges, in comparison to the potential benefit of the plea offer and gave him time to discuss his decision with his attorney. Smith indicated that he understood what the court was telling him, but that he was rejecting the plea offer and wanted a trial.
Additionally, Smith indicated that he wanted to call his trial counsel as a witness at trial. When the court told him that his counsel could not be a witness, he stated that he would represent himself. The court told him that if he was going to represent himself, his trial counsel would be his legal advisor, which he indicated was fine. The court “strongly suggested” that he allow his trial counsel to represent him based on the charges he was facing. Smith again indicated his desire to call his trial counsel as a witness and stated that he would not be able to do so if she was representing him. The court told him again that his trial counsel, even if not representing him, could not be a witness. The court also again stressed the importance of having legal representation and encouraged him to reconsider his decision. Smith, for a third time, indicated that he wanted to call his counsel as a witness in his defense. The court explained that was not possible based on the attorney/client privilege, which applied whether she was his attorney at trial or not. The court plainly stated, “You can't put her on the stand and ask her questions. She will not be a witness on your behalf.” The court further explained that he would be expected to follow courtroom procedure and rules of evidence even though he was representing himself, and he indicated that he understood. Before concluding the hearing, the court again encouraged Smith to reconsider his decision to represent himself and told him if he did change his mind, his trial counsel would be ready to represent him.
A jury trial was held on the five counts of possession with intent to distribute. At the beginning of trial, the court again gave Smith the opportunity to be represented by counsel, and he refused. Trial proceeded and the State presented its evidence against Smith.
On the second day of trial, during the State's case, Smith asked the court about the status of thirteen witnesses he had attempted to subpoena. He expressed concern that he had not seen any of his witnesses at the courthouse and that he had talked to some of them the night before and they indicated they had not been subpoenaed. The court stated that the issue would be discussed further after the State completed its case, but informed him that no subpoenas were issued.
After the State rested, the court resumed the discussion about Smith's witnesses. The court told him that subpoenas were not issued because the clerk's office did not receive the requests until the first day of trial. The court further explained that the subpoenas were marked “filed after court date, ” which meant that the clerk's office received the requests for the subpoenas after the date requested. Smith explained that on September 18, an individual from the public defender's office showed him how to fill out his requests for subpoenas and that he followed the instructions he had been given. The court told him again that the requests for subpoenas were sent back because they were received on the same date that Smith was asking to have the individuals subpoenaed. Smith stated that he “filed it to the clerk on the 18th, ” and the court corrected him, saying that the example he was given was dated September 18. The court explained that the court file shows what Smith filled out and that the clerk's office file- stamped it when they received it. The court further stated that it has to go by what is in the court file and based on the court file, Smith did not file his requests for subpoenas in time. It also explained that even if Smith had correctly filed the subpoena requests, the witnesses would not have been able to testify if their testimony was irrelevant.
The State was given a chance to be heard and it objected to allowing any of the defense witnesses to be called because it had not received a witness list prior to trial, which was a discovery violation. The State further stated that if its objection was overruled, it was asking for a motion in limine challenging the relevancy of the witnesses' testimony. The court then began reviewing Smith's proposed witnesses one by one.
However, after discussing the first witness, the court stated that it was sustaining the State's objection to the witnesses on the ground of a discovery violation, i.e. the witnesses were not endorsed and the State had no notice about the thirteen witnesses he intended to call. Despite sustaining the State's objection, the court then proceeded to go through each of Smith's proposed witnesses and sustained the State's motion in limine in regard to each witness.
Smith proceeded to testify on his own behalf. He also called one witness. When Smith testified, he talked about various topics that had nothing to do with the charges in this case. In regard to the charges, he insisted that he gave the informant Epsom salt, not methamphetamine, during the controlled buys. He also argued that he was arrested for six counts of ...

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