United States District Court, D. Nebraska
JERIMIAH L. VANCE, Petitioner,
STATE OF NEBRASKA, Respondent.
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge.
Vance (Vance or Petitioner) has filed a petition for a writ
of habeas corpus attacking his state conviction and sentence
for sexually assaulting a very young girl. Finding and
concluding that most of his claims have been procedurally
defaulted without excuse, and as for a portion of one claim
that was not defaulted, the deference due the state courts
compels rejection of those claims, I now deny and dismiss the
petition with prejudice.
Offenses and the Trial
highly condensed fashion, I first describe the offenses of
conviction. In October 2009, Vance and Amanda S. began a
dating relationship. Their relationship progressed to the
point that Vance began living on occasion with Amanda and her
four children. On February 17, 2012, Amanda's 4-year-old
daughter A.S. complained to her mother of pain in her
“butt.” H.S., Amanda's son and A.S.'s
twin brother, made a statement which led Amanda to question
A.S. as to whether “someone had put a pee pee in her
butt.” A.S. denied this had occurred approximately 8 to
10 times before she admitted that it had occurred and began
crying. The hospital found no evidence of trauma.
February 22, 2012, investigators visited Amanda's
apartment to collect evidence. The investigators took
pictures as they entered the apartment, focusing on
A.S.'s bedroom and the path through the apartment leading
to the bedroom. A.S. and H.S. shared a bedroom in the
apartment, and their beds were bunked. H.S. slept in the top
bunk, and A.S. slept on the bottom. In addition to taking
pictures, they collected A.S.'s bedding for DNA and
serology testing. The bedding consisted of a cotton-like
mattress pad, a brown fitted sheet, a brown flat sheet, a
cream-colored comforter, and a pink heart-patterned quilt.
State Patrol crime laboratory received the bedding on March
1, 2012. Testing was not completed until August 2012. On
January 2, 2013, an investigator collected a buccal swab from
Vance. Heidi Young, a forensic scientist in the biology unit
at the State Patrol crime laboratory, completed the DNA and
serology tests on A.S.'s bedding. Young discovered three
stains on the bedding that contained sperm: two from the
heart- patterned quilt and one from the cream-colored
comforter. These stains were in the bottom corners of each
piece of bedding. Each of these stains tested as containing
sperm, and Young's analysis revealed that the odds of
Vance not having been the source of these stains were
testified that Vance used to stay at their house and
that she was in court because Vance had done something bad to
her. At the outset of her testimony, A.S. was presented with
basic diagrams of a young girl and an adult male. Upon
questioning, A.S. was able to identify the various body parts
on each diagram. A.S. testified that Vance put his finger in
her “toki [vagina]” and put his “pee pee in
her butt.” A.S. described feeling pain when Vance put
his finger in her “toki, ” but testified that she
felt nothing when he put his “pee pee in her
butt.” She also stated that she and H.S. shared a room
when Vance did these things to her, but that she believed
H.S. did not observe anything because he was asleep.
testified that Vance would come into her room at night, lay
in her bed, and pull her pants down. Vance's clothes
would also be partly off. When Vance did these things to her,
A.S. noticed that the bed would get all wet. A.S. could not
remember how old she was when Vance did these things to her.
a jury trial that began on October 7, 2013, where many
additional facts and witnesses were presented, Vance was
convicted of aggravated first and third degree sexual
assault. He was sentenced to concurrent prison sentences of
40 to 70 years and 4 to 5 years.
appealed his convictions and sentences. At trial, Petitioner
was represented by a local public defender. The local public
defenders' office handled the appeal too.
raised eight reasons for reversal. He argued the trial court
erred as follows: (1) in permitting the State to designate
the lead investigator as a representative throughout the
trial, despite a sequestration order; (2) in overruling his
motion for mistrial after a potential juror had disclosed for
the first time that she had been the victim of a sexual
assault; (3) in allowing the victim to testify when she was
not competent; (4) in failing to strike the testimony of the
victim when she became unavailable for cross-examination
(because of her incompetency as evidenced by her failure to
remember certain details); (5) in permitting the State to
introduce the hearsay statement of the victim; (6) in failing
to declare a mistrial after the prosecutor misstated evidence
during closing arguments; (7) in finding sufficient evidence
to sustain the jury's verdicts; and (8) in imposing
excessive sentences. State v. Vance, No. A-14-009,
2015 WL 240854 (Neb. Ct. App., January 20, 2015); filing no.
10-11 at CM/ECF 5.
Nebraska Court of Appeals issued a detailed opinion.
(Id.) It affirmed Vance's conviction and
sentences finding no merit to the eight assignments of error.
Regarding the assignments of error about the child-allowing
the victim to testify when she was not competent, failing to
strike the testimony of the victim when she became
unavailable for cross-examination (because of her
incompetency as evidenced by her failure to remember certain
details) and in permitting the State to introduce the hearsay
statement of the victim-the Court of Appeals very carefully
examined those issues and concluded that they were without
the competency issue, the Court of Appeals ruled that:
Vance also argues that the district court erred when it
determined that A.S. was competent to testify. Vance takes
issue with this determination because he believes an
objective review of her testimony reveals that A.S. had very
little ability to recollect her experiences and then testify
to those experiences. Vance claims that A.S.'s
incompetence requires this court to vacate his convictions.
While no certain age has been deemed to be the age at which a
child becomes competent to testify in a court of law, the
court generally takes into consideration whether he or she is
able to receive correct impressions by the senses, to
recollect and narrate accurately, and to appreciate the moral
duty to tell the truth. State v. Earl, 252 Neb. 127,
560 N.W.2d 491 (1997). In Earl, the Nebraska Supreme
Court upheld the district court's determination that a
6-year-old witness was competent to testify. The witness was
able to report his name, his age, the street and city where
he lived, his sister's name and age, his school and
grade, the names of his teacher and principal, the name of
his father's workplace, and his mother's occupation.
He was also able to demonstrate that he understood the
difference between telling the truth and lying.
In this case, A.S. was able to report much of the same
information. A.S. accurately answered the court's
questions regarding her age, her school, and her grade in
school, and she was able to state that she lived with her
mother and brothers. However, she was not able to recall
exactly where she lived. A.S. also reported that she knew
what it meant to tell the truth and that she could get a
timeout if she told a lie. At the court's direction, A.S.
also raised her hand and promised to tell the truth. In front
of the jury, A.S. also answered the judge that his robe was
black and that his statement that his robe was pink would be
Vance does not take issue with any of the above facts, but
focuses on A.S.'s inability to remember all of the
details of her experiences with Vance. However, A.S.'s
inability to accurately remember and narrate certain events
does not go to her competency. Rather, these are credibility
issues for the jury to consider. Based on this record, we
agree with the district court's determination that A.S.
was competent to testify.
State v. Vance, 2015 WL 240854 at *6-7; filing no.
10-11 at CM/ECF pp. 7-8.
the “unavailability for cross-examination” issue,
the Court of Appeals wrote:
After Amanda's [the mother] testimony, Vance moved to
strike A.S.'s testimony because he argued that she was
unavailable for cross-examination. Vance emphasizes that
A.S.'s frequent responses of “I can't
remember” or “I don't know” to his
questions on cross-examination demonstrate her
unavailability. A.S. was unable to recall what she had stated
during her interviews at the Child Advocacy Center and, due
to her age, was not able to read the transcripts from those
interviews. On appeal, Vance contends that the district court
abused its discretion when it overruled his motion to strike.
Vance and the State both agree that this issue is properly
analyzed under the U.S. Supreme Court's decision in
United States v. Owens, 484 U.S. 554, 108 S.Ct. 838,
98 L.Ed.2d 951 (1988). Neither party cites a Nebraska case
applying that decision, and we have not found any such case
in our research. In Owens, the government charged a
federal prisoner with assault of a prison counselor. The
prisoner beat the counselor with a metal pipe, fracturing the
counselor's skull. The counselor was hospitalized for
over a month, and his memory was impaired as a result of the
beating. Four weeks after the assault, the counselor was able
to describe what occurred and identified the prisoner as his
attacker from an array of photographs.
At trial, the counselor testified that he remembered
identifying the prisoner as the attacker. However, he was not
able to recall many other details. On cross-examination, the
prisoner's attorney attempted to refresh the
counselor's recollection with hospital records, including
a record in which the counselor had identified a different
attacker. These attempts were unsuccessful, and the prisoner
The U.S. Supreme Court reversed the federal court of appeals
decision overturning the conviction. The Supreme Court held
that the Confrontation Clause guarantees only an opportunity
for effective cross-examination, not cross-examination that
is effective in whatever way, and to whatever extent, the
defense might wish. When the defense has the opportunity to
bring out such matters as the witness' bias, lack of care
and attentiveness, poor eyesight, or bad memory, the
Confrontation Clause is satisfied.
Vance argues that he did not have the opportunity to
cross-examine A.S. because she had no true recollection of
the abuse. He focuses on the fact that A.S. testified that
she was talking about things that had been told to her.
However, our review of the record shows that A.S. testified
to her actual memory of Vance's putting his “pee
pee in her butt” while she was living in the old house.
A.S. also testified that it hurt when Vance put his fingers
in her “toki.”
The record also shows that Vance had the opportunity to
cross-examine A.S. and highlight before the jury her lack of
memory of many details. Vance then argued in his closing that
A.S.'s inability to recall many details should make her
testimony unbelievable. Although he was not able to achieve
his desired result, he was able to cross-examine A.S. The
district court correctly overruled Vance's motion to
strike A.S.'s testimony.
Id. at *7-8; filing no. 10-11 at CM/ECF pp.
the alleged hearsay statements of the child, the Court ...