United States District Court, D. Nebraska
DAMON D. PIGEE, Petitioner,
SCOTT R. FRAKES, Director, Respondent.
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge
a habeas corpus case in which Petitioner (Pigee) attacks his
Nebraska conviction and lengthy sentence. Respondent has
answered (filing no. 17), filed the relevant state
court records (filing no. 16) and submitted a brief
(filing no. 18). After an extension of time,
Petitioner has filed his brief (filing no. 22) as
well. The matter is now submitted.
with Respondent that all claims are procedurally defaulted
and that no statutory, equitable or other excuse has been
shown that would allow me to ignore the default.
Alternatively, and separately, if a portion of the multi-part
ineffective assistance of appellate counsel claim (part (c)
of Claim Four) was not procedurally defaulted because it was
fairly presented and resolved adversely to Petitioner, then,
giving the Nebraska courts the deference that they are due,
appellate counsel was not ineffective and Petitioner is not
entitled to relief on that portion of the claim.
filed a prolix petition containing 67 pages. Summarized and
condensed, and as set forth in my previous
progression order (filing no. 8), Petitioner
asserted the following claims that were potentially
cognizable in this court:
Claim One: Petitioner was denied due process
because: (a) he was threatened by the prosecutor regarding
the filing of a habitual criminal charge; (b) the prosecutor
misstated the factual basis for the guilty plea; and (c) the
prosecutor provided false information to the judge at the
time of sentencing.
Claim Two: Petitioner was denied effective
assistance of trial counsel because (a) counsel did not
object to the amended information; (b) counsel used a letter
from the prosecutor (presumably Filing No. 1 at CM/ECF p. 49)
to coerce Petitioner to enter a guilty plea; (c) counsel
failed to object to and request a continuance regarding the
judge's uncertainty about whether sentences could be run
concurrently; (d) counsel failed to move to withdraw the plea
when Petitioner informed counsel about the location of a
“new suspect”; (e) counsel failed to object to
statements made by the sentencing judge (see Filing
No. 1 at CM/ECF p. 17 (¶ “5”) &
p. 18 (¶ “8”); (f) counsel failed to object
to the insufficient factual basis for the plea; (g) counsel
failed to investigate and depose Donald Mann who authored a
police report; (h) counsel failed to object to the
prosecutor's statement at sentencing regarding
“opportunity for change.”
Claim Three: Petitioner was denied due
process because (a) at the time of the plea, Petitioner was
not clearly advised as to whether the sentences could run
concurrently and (b) the trial judge did not act in a fair
and impartial manner at the time of sentencing.
Claim Four: Petitioner was denied effective
assistance of appellate counsel (who was different than trial
counsel) for failing to raise on direct appeal Claims One,
Two and Three.
separate occasions between November 2010 and April 201l,
Pigee sold firearms to a confidential informant working with
law enforcement. All of the sales were either captured on
audio or video recordings or were observed by law enforcement
officers. On August 29, 2011, Pigee was charged in Douglas
County District Court with four counts of possession of a
deadly weapon by a prohibited person (Counts 1-4) pursuant to
Neb. Rev. Stat. § 28-1206 (as it existed at the time),
each a Class ID felony, and one count of
delivering/distributing marijuana (Count 5), a Class III
felony. With the assistance of counsel (Ms. Gryva, an
extremely experienced and zealous criminal defense lawyer
well known to this court from her work on the CJA panel and
otherwise), Pigee pled guilty to Counts 1-4, and, in
exchange, Count 5 was dismissed. The State also agreed to
dismiss another case pending against Pigee and agreed to not
pursue a habitual criminal enhancement.
district court sentenced Pigee to 10 to 40 years'
imprisonment on each count, with the sentences to run
consecutively. Pigee, with new counsel (Mr. Dunn), filed a
direct appeal to the Nebraska Court of Appeals, arguing only
that his sentence was excessive. (Filing No. 16-5.) That
court granted the State's motion for summary affirmance
in Pigee's direct appeal. The mandate issued on April 5,
2013, after a petition for further review was denied by the
Nebraska Supreme Court.
then filed a post-conviction action on June 5, 2013. That was
followed by an amended post-conviction motion which, as we
shall see, became the operative pleading that the state
district judge ruled upon. During at least part of this
post-conviction litigation, Pigee had counsel (Ms. Douglas),
although Pigee requested and was given permission to orally
argue whether he was entitled to an evidentiary hearing
without his counsel present. Notwithstanding his argument,
the district court denied the request for an evidentiary
hearing and later denied post-conviction relief in a thorough
five-page opinion discussing the amended motion.
(Filing No. 16-14 at CM/ECF pp. 41-46.) With new appointed
counsel (Mr. Kahler), an appeal was perfected. The specific
claims raised by Pigee were that his appellate counsel (Mr.
Dunn) was ineffective for failing to allege on direct appeal
that his trial counsel (Ms. Gryva) was ineffective for (1)
incorrectly advising him that he was eligible for the
habitual criminal enhancement, (2) failing to advise him of
the penal consequences of his plea, and (3) failing to (a)
depose witnesses, (b) file appropriate motions, and (c)
review discovery materials with him. (Filing No. 16-8 at
CM/ECF pp. 10-14; Filing No. 16-4 at CM/ECF p. 4).
Court of Appeals rejected Pigee's claims and affirmed the
judgment of the district court in a memorandum opinion dated
February 28, 2017. (Filing No. 16-4). In so ruling,
the court determined that all of the claims, save perhaps
one, had been defaulted on state law grounds either because
Petitioner failed to raise the claim in the amended
post-conviction motion (the habitual criminal issue) or
because Pigee failed in the Nebraska Court of Appeals to
address how the district court's decision was in error
and also for failing to assign as error and argue that trial
counsel was ineffective for failure to (a) depose witnesses,
(b) file appropriate motions, and (c) review discovery
materials with him.
the argument that trial counsel was ineffective for failing
to advise Pigee of “the penal consequences” of
the guilty plea, the court found that (1) Pigee failed to
identify which penal consequences he was unaware of and (2)
Pigee was aware of the sentencing ranges for the crimes and
the possibility of concurrent or consecutive sentences.
Additionally, the court further found that there was no
evidence of prejudice regarding trial counsel's
representation since Pigee could not show he would have gone
to trial had trial counsel said something different.
filed a petition for further review in the Nebraska Supreme
Court. In that petition, counsel for Pigee (Mr. Kahler)
argued that the Court of Appeals erred in finding that trial
and direct appeal counsel did not perform deficiently.
(Filing No. 16-10.) That petition was denied. The
mandate issued on May 3, 2017. And this petition for a writ
of habeas corpus followed on November 28, 2017.
of Applicable Law
strands of federal habeas law intertwine in this case. They
are the law of exhaustion and procedural default, the
deference that is owed to the state courts when a federal
court reviews the factual or legal conclusions set forth in
an opinion of a state court, and the standard for evaluating
a claim of ineffective assistance of counsel.
briefly set out those principles now, so that I may apply
them later in a summary fashion as I review Petitioner's
claims. I turn to that task next.
and Procedural Default
forth in 28 ...