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Butter v. Frakes

United States District Court, D. Nebraska

September 18, 2018

JOSEPH JUAN BUTTER, Petitioner,
v.
SCOTT R. FRAKES, Director, Nebraska Department of Correctional Services, Respondent.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.

         This matter is before the court on preliminary review of Petitioner Buttercase's Petition for Writ of Habeas Corpus (Filing Nos. 1 and 14) brought pursuant to 28 U.S.C. § 2254.[1] The purpose of this review is to determine whether Petitioner's claims, when liberally construed, are potentially cognizable in federal court. Petitioner's 29 claims (in his own words) are:

         Claim No. 1: There was insufficient evidence adduced at the Petitioner's trial to convict him beyond a reasonable doubt, in violation of the Petitioner's due process rights, as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution.

Claim No. 2: The state courts' denial of allowing past sexual evidence is in violation of the Petitioner's confrontation and due process rights, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.
Claim No. 3: The state courts' denial of the Petitioner's first motion for new trial is in violation of the Petitioner's compulsory process and due process rights, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.
Claim No. 4: The Petitioner's sentences are grossly disproportionate for the crimes that he is actually innocent of committing, in violation of the Petitioner's due process rights and rights against cruel and unusual punishments, as guaranteed by the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution.
Claim No. 5: The Petitioner's trial counsel failed to investigate Walmart surveillance videos of Tessa Fulton, in violation of the Petitioner's federal constitutional right to effective assistance of counsel, confrontation rights, and due process of the law, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.
Claim No. 6: The Petitioner's trial counsel failed to investigate and discover eye witness Sondra Aden, in violation of the Petitioner's federal constitutional rights to effective assistance of counsel, compulsory process, and due process of the law, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.
Claim No. 7: The Petitioner's trial counsel failed to investigate and discover additional Tessa Fulton impeaching evidence, in violation of the Petitioner's constitutional rights to effective assistance of counsel, confrontation, and due process of the law, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.
Claim No. 8: The Petitioner's trial counsel failed to object, pursuant to the discovery order of the court and Brady v. Maryland, to the state's introduction of the non-disclosed exhibits 40, 41, and 52 through 64 at trial, in violation of the Petitioner's federal constitutional rights to effective assistance of counsel, confrontation, and due process of the law, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.
Claim No. 9: The Petitioner's trial counsel failed to subject Petitioner's Tungsten ring to forensic analysis, present testimony, and offer ring as an exhibit at trial, in violation of Petitioner's federal constitutional right to effective assistance of counsel, confrontation, and due process of the law, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.
Claim No. 10: The Petitioner's trial counsel failed to make the proper Daubert objection to the admissibility of testimony from Julie Jurich, in violation of Petitioner's federal constitutional rights to effective assistance of counsel, an impartial jury, and due process of the law, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.
Claim No. 11: The Petitioner's trial counsel failed to call medical expert Jennifer Johnson to testify at Petitioner's trial, in violation of Petitioner's federal constitutional rights to effective assistance of counsel, confrontation, compulsory process, and due process of law, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.
Claim No. 12: The Petitioner's trial counsel failed to motion the trial court for a change of venue, in violation of Petitioner's federal constitutional rights to effective assistance of counsel, impartial jury, and due process of the law, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.
Claim No. 13: The Petitioner's trial counsel failed to properly object and motion for a mistrial after the trial judge chastised the Petitioner in the jury's presence, in violation of the Petitioner's federal constitutional rights to effective assistance of counsel, impartial jury, equal protection of the law, and due process of the law, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.
Claim No. 14: The Petitioner's trial counsel failed to object, pursuant to relevance and Rule 403, to text messages sent from Petitioner to multiple women, in violation of Petitioner's federal constitutional rights to effective assistance of counsel, impartial jury, and due process of the law, as guaranteed by ...

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