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Bowman v. Frakes

United States District Court, D. Nebraska

August 7, 2018

SAMUEL BOWMAN, Petitioner,
v.
SCOTT FRAKES, Director, Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         Samuel Bowman (Bowman or Petitioner) has filed a petition for writ of habeas corpus. Respondent has answered and has filed the relevant state court records. The matter has been briefed by both sides. I now deny the petition, dismiss it with prejudice, and refuse to grant a certificate of appealability.

         Claims

         When I progressed this case, I summarized and condensed the claims for clarity and noted my summary of potentially cognizable claims was not a final determination. This is how I summarized the condensed claims:

Claim One: Petitioner's right to be free from unreasonable search and seizure under the 4th, 5th, and 14th Amendments was violated because the trial court erred in not granting Petitioner's motion to suppress for the following reasons: (1) Petitioner revoked his consent to the search; (2) Trooper Bauer's tests on the tire of the rental car were unreliable and could not form the basis for probable cause; and (3) police lacked probable cause to initially detain Petitioner and to later place him into custody.
Claim Two: Petitioner's rights to due process and against unreasonable search and seizure under the 4th, 5th, and 14th Amendments were violated when the trial court received into evidence the seized cocaine with its chain of custody tainted by law enforcement's violations of federal law.
Claim Three: Petitioner's rights to due process and against unreasonable search and seizure under the 4th, 5th, and 14th Amendments were violated because the trial court erred in allowing Vicky Cowan to testify to the weight of the seized cocaine.
Claim Four: Petitioner was denied his rights against self-incrimination and to counsel under the 5th and 6th Amendments because the trial court failed to grant Petitioner's motion for a mistrial based on the prosecutor's use of Petitioner's post-arrest silence and request for counsel as evidence of his guilt.
Claim Five: Petitioner was denied effective assistance of counsel in violation of the 6th and 14th Amendments because trial counsel: (1) failed to have the official court reporter make a record of the closing arguments and (2) gave unreasonable advice to Petitioner to not testify at trial.

         Background

         Petitioner was sentenced to 20 years in prison for a drug conviction after a jury trial. Bowman was driving a rented minivan with another fellow as a passenger and got stopped for speeding while heading east on I-80.[1]

         Although tedious but necessary to read, here is how the Nebraska Court of Appeals carefully described what happened during the stop and the somewhat unusual events that followed:

On November 28, 2011, Bauer initiated a traffic stop of a silver minivan traveling eastbound on I-80. As Bauer approached the passenger side of the minivan, she observed that all of the back passenger seats were gone except for one and that there was a “doughnut” spare tire (doughnut tire) in the back cargo area, which she testified was “odd” because it was not where a spare tire would be in that type of minivan. Bauer also observed duffelbags and a milk crate with mechanical supplies, including gas or antifreeze, inside the minivan.
Bauer made contact with the occupants of the vehicle. Bowman was driving the minivan, and Donzell Williams was in the front passenger seat. Bauer advised Bowman that she stopped him for driving in excess of the posted speed limit, and she asked Bowman for his driver's license, registration, and proof of insurance. Bowman informed Bauer that the minivan was a rental vehicle and provided her with a rental agreement and his Nevada driver's license. The rental agreement reflected the minivan was rented in Las Vegas, Nevada, on November 26, 2011, and was due back in Las Vegas on November 28, by 10 p.m. (within a few hours of the traffic stop). Bauer found this significant because at the time she stopped the minivan, it was still traveling eastbound. Bauer collected Bowman's driver's license and the rental agreement, and she asked him to come to her patrol car. Bowman complied.
Bauer began entering Bowman's information into the patrol car's ticket writing system to give him a warning for speeding. Bowman was seated in the front passenger seat of Bauer's patrol car. As Bauer was writing the warning, she began asking Bowman questions about his trip. Bowman first told Bauer that he and Williams, who he called his brother, were traveling to Chicago, Illinois, to pick up Williams' children, but later he told Bauer they were traveling to Chicago for a birthday party for one of Williams' children who was turning 5 years old. Bauer requested that dispatch check the status of Bowman's driver's license and run a check of his criminal history. Bauer was advised that Bowman had a valid driver's license, but that he had a positive criminal history for drug offenses.
Bauer testified that she could not complete the warning without entering all of the minivan's information into the system, so she returned to the minivan to locate its registration. Bauer made contact with Williams, who was still seated in the minivan's front passenger seat, and asked him where they were going. Williams replied they were going to Chicago to see family and that one of his children was turning 6 years old. Williams also spontaneously stated that his mother was a “cop” with the Chicago Police Department and that he and Bowman were brothers.
Bauer returned to her patrol car to check for warrants and criminal history for Williams. Bauer had noticed some discrepancies between Bowman's and Williams' statements, so she tried to clarify with Bowman. Bauer asked Bowman what his mother did for work, and he replied the family they were visiting did not have jobs, which conflicted with Williams' statement that their mother was a “cop.” Bowman then clarified that he and Williams were not actually brothers, but called one another brothers because they have known each other for a long time.
Bauer completed the warning, printed it off, and handed it to Bowman. Bauer also returned to Bowman the minivan's paperwork and Bowman's and Williams' driver's licenses. Bauer explained to Bowman that he did not have to do anything further for the warning. Bauer testified that as Bowman grabbed the patrol car's door handle to open the door, she asked him if she could ask him a few more questions, if he had time. According to Bauer, Bowman pulled the door shut and continued to speak with her.
Bauer began asking Bowman a series of questions regarding whether he had guns, weapons, or large amounts of cash. Bauer testified that Bowman's demeanor changed when she began asking about drugs and that he turned away from her and stopped looking her in the eye. Bauer then asked Bowman if he would consent to a search of the minivan and its contents. According to Bauer, Bowman verbally replied yes. Bauer then produced a written voluntary search consent form, which Bauer testified Bowman signed.
Bauer told Bowman that he could stay in the front seat of her patrol car during the search because it was a cold and windy day and that he could honk the horn to get her attention if he wished to discontinue the search. Bauer tucked the written consent form in the visor on the driver's side of the patrol car. Bauer called for assistance and returned to the minivan. Bauer told Williams that Bowman had given her consent to search the vehicle and its contents. Williams was cooperative and gave permission to search his bag. Bauer instructed Williams to take a seat ahead of the minivan in the “road ditch” during the search.
Investigator Mike Dowling arrived to assist Bauer. During the search, Dowling stood at the passenger-side door of Bauer's patrol car to observe Bowman. Nebraska State Trooper Ken Moody arrived shortly thereafter and assisted Bauer with the search. Bauer testified she observed a doughnut tire laying in the back of the minivan, without being in a container or tire compartment. Moody also testified that it was “very odd” that there was a doughnut tire laying in the cargo area of the minivan. Moody knew someone who had the same type of minivan and knew the spare tire carrier was underneath the vehicle. Bauer looked underneath the vehicle and saw there was another tire inside the spare tire carrier.
Bauer observed that the tire inside the carrier was a standard-sized tire, not a doughnut tire. Moody observed that the tire did not seem to fit or belong in the carrier. Both troopers observed that the tire appeared to be older because the tread was thin. Bauer observed that there was a chunk of tread missing and that the tire had chalk writing on it. Neither Bauer nor Moody believed the tire was roadworthy. Bauer asked Bowman why he had two spare tires, and he replied he asked the rental company to provide him with another tire for the trip because he did not feel a doughnut tire was sufficient for travel. Bauer testified the information given to her by Bowman seemed suspicious given the condition of the tire.
Moody testified that when he bounced the tire, he felt a “second bounce” or the vibration of something else inside the tire.
Bauer retrieved a stethoscope and mallet from her patrol car to perform an “echo” or “ping” test on the tire, which test she had learned during a drug interdiction course. Bauer testified the echo test was the most telling thing for her that there was possibly contraband inside the tire and that she then determined the tire needed further inspection. The troopers had no means of separating the tire from the rim on I-80, so Bauer transported Bowman and the tire to a local auto dealership in Lexington, Nebraska, approximately 3 miles away from the location where Bowman was initially stopped. Moody stayed at the scene with Williams.
The tire was taken apart at the tireshop, and inside the wheel were two black plastic wrapped items. Inside the black plastic packages were four bags with white powdery substances inside, which Bauer believed was cocaine. Bauer then advised Bowman he was under arrest, advised him of his Miranda rights, and asked if he wished to make any statements. Bowman shook his head no. Bauer transported Bowman to the jail. During the booking process as Bauer went through Bowman's property, Bauer discovered the written consent form, crumpled and torn, inside the minivan's rental papers.

(Filing 10-3 at CM/ECF pp. 2-4.)

         Bowman was charged. Suppression motions were filed and denied. These motions were broad in nature seeking to suppress the drugs, the legality of the entire encounter due to a lack of probable cause or reasonable suspicion, illegal detention, statements given in violation of Miranda, questions outside the scope permitted by law, search of the vehicle without consent or outside the scope of consent, and search after consent was withdrawn. The case proceeded to a jury trial. A chemist from the state crime lab testified both as to the nature of the substance and the weight. Bowman presented no evidence and he did not testify.

         As is frequently the case in the Nebraska courts, the opening and closing arguments were not recorded because no one requested the court reporter to do so as they could have done under Nebraska law. During the closing argument a dispute arose.

         The trial judge, when denying the motion for post-conviction relief predicated upon an assertion of ineffective assistance of counsel, and writing in the third person, described what happened regarding the closing arguments:

The trial records and bill of exceptions show that neither party requested the opening or closing statements be recorded. During the prosecutor's closing argument the defendant's trial counsel made an objection. A bench conference was held, at which time Bowman's trial counsel stated:
[Trial counsel]: Asserting one's Sixth Amendment Right to an attorney or choosing to remain silent is a Constitutional Right that cannot be used to presume guilt. I am moving forward - that those ... I am moving for a mistrial based upon those improper statements made during closing argument. The fact that he asserted his right or remained silent or didn't do anything isn't evidence of anything, and it flies in the face of his ...

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