Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Pigee v. Frakes

United States District Court, D. Nebraska

May 8, 2018

DAMON D. PIGEE, Petitioner,
v.
SCOTT R. FRAKES, Director, Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge

         This is 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.

         I agree 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.

         Claims

         Petitioner filed a prolix petition containing 67 pages. Summarized and condensed[1], 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.

         Background

         On four 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.

         The 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.

         Pigee 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.[2] 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).

         The 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.

         As to 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.

         Pigee 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.

         Overview of Applicable Law

         Three 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.

         I 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.

         Exhaustion and Procedural Default

         As set forth in 28 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.