United States District Court, D. Nebraska
GERALD D. SMITH, Petitioner,
FRED BRITTEN, Respondent.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
D. Smith (Smith) has filed a timely petition for writ of
habeas corpus. The Respondent has answered and filed the
relevant state court records. The matter has been briefed. I
now deny the petition with prejudice and refuse to issue a
certificate of appealability.
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
and condensed, Smith has five claims. They are set forth
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.
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.
Three: Trial counsel was ineffective because trial
counsel failed to raise the issue of Petitioner's
competency to stand trial.
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.
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.
the background of this case from the thorough but unpublished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
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
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 ...