United States District Court, D. Nebraska
TIMOTHY W. WILSON, Petitioner,
SCOTT R. FRAKES, Respondent.
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.
W. Wilson (Petitioner or Wilson) has filed a petition for
writ of habeas corpus under the provisions of 28 U.S.C.
§ 2254. The Respondent has answered and filed the
relevant state court records. The parties have now fully
briefed the case.
facts admitted by Petitioner at his guilty plea
hearing-repeated sexual assault of his children plus a video
of Wilson (or some other adult male) being sexually serviced
by one of his children-are as sad as Wilson's sentences
are long. I deny the petition with prejudice for the reasons
set forth below.
Claim One: Petitioner was denied his rights
to due process and effective assistance of counsel under the
6th and 14th Amendments when the trial court denied his
request for new counsel and permitted counsel to continue to
represent Petitioner despite counsel's failure to appear
at the hearing for new counsel.
Claim Two: Petitioner was denied effective
assistance of counsel because trial counsel (1) failed to
communicate with Petitioner regarding the charges he faced
and the contents of discovery which would have allowed
Petitioner “to make a proper and informed choice”
(Filing no. 1 at CM/ECF pp.7, 17); (2) failed to object to
venue where not all of the offenses charged occurred in
Scotts Bluff County; (3) failed to challenge the State's
violation of Petitioner's due process rights to an
initial appearance within 48 hours of his warrantless arrest;
(4) failed to quash or suppress the illegal and invalid
search warrants; (5) failed to suppress Petitioner's
inculpatory statement and challenge the statement's
admissibility as involuntary; and (6) failed to investigate
another probable suspect.
Claim Three: Petitioner was denied his right
to due process under the 14th Amendment because the state
failed to place any evidence on the record supporting
Petitioner's conviction for creation of a visual
depiction of sexually explicit conduct.
21, 2014, in the District Court of Scotts Bluff County,
Nebraska, Petitioner Timothy W. Wilson pled guilty to two
counts of first degree sexual assault on a minor and one
count of creating or generating a sexually explicit visual
depiction, by a person who was more than 19 years of age. The
state district court sentenced Petitioner to consecutive
prison terms of 20 to 30 years on each of the three
appealed claiming that the sentences were excessive and
constituted an abuse of discretion even though they were
within the statutory limits. On January 28, 2015, the
Nebraska Court of Appeals affirmed Petitioner's
convictions and sentences on direct appeal by sustaining the
State's motion for summary affirmance. Petitioner did not
file a petition for further review in the Nebraska Supreme
Court. Petitioner had the same lawyer-Bernard Straetker, the
Public Defender for Scotts Bluff County-on the direct appeal
as he had when he entered his guilty pleas.
January 21, 2016, Petitioner filed a motion for
post-conviction relief in the state district court; amended
post-conviction motions were later filed. The state district
court ultimately denied post-conviction relief without taking
testimony or hearing argument from Wilson. In material part,
the judge's decision is set forth below:
The first issue raised, that the Court did not appoint
different counsel when requested, is by itself without merit.
Although no journal of the hearing exists, the judge's
notes indicate a hearing was held and the request for
alternate counsel was denied. This issue is actually a part
of the ineffective assistance of counsel issues, as the
counsel who remained on the case is who is alleged to be
ineffective. One has a constitutional right to effective
counsel, but not a particular counsel at State expense.
The rest of the issues raised are ruled on as follows.
a) Defendant's statements to law enforcement should
have been challenged by a motion to suppress. The
defendant's pastor, because he is a mandatory reporter,
became a state actor. The Miranda waiver form was not
The motion states generally that a motion to suppress should
have been filed because his statement was involuntary and/or
induced by promises of leniency. There is no factual
allegation of coercion or any promise made by anyone. Perhaps
the defendant's pastor encouraged him to admit what he
had done to law enforcement- but that does not constitute
improper coercion or render his statement involuntary. No.
assertion is made the State arranged anything in advance with
the pastor to compel the defendant to make a statement. The
defendant does assert the Miranda waiver form was not
properly used, but he does not state how that would render
his statement involuntary or the result of promises of
leniency. This assertion is conclusory and not supported by
factual allegations of how his statement was involuntary, or
what he was promised.
b) Defendant was not brought before a judge within 48
hours of his arrest, therefore a motion to suppress should
have been filed.
The motion cites to a Rule, which cannot be found based on
the notation. The notation may be a reference to section
29-501, which was repealed in 2007 and discussed a four day
delay in proceedings before a magistrate.
The applicable statute on the timeliness of a preliminary
hearing is section 29-504, and it directs the magistrate to
inquire into the complaint “as soon as may be”.
Neither the statute nor the annotated cases refer to a
mandatory time period of 48 hours. State v. Nissen,
252 Neb. 51 (1997) provided that a defendant's statements
were not rendered inadmissible on the ground
that the defendant was detained more than 48 hours without a
judicial determination of probable cause. Here, it appears
the defendant made a statement to the deputy soon after his
arrival at the sheriff's office, where he appeared of
this own accord. There is no indication or assertion his
statements followed an extensive period of custody before
preliminary hearing. There is no statement as to what would
be subject to suppression if what the defendant cites as a
problem indeed is a problem.
c) Both search warrants were invalid, because the
affidavits were dated two to three months before the
The evidence before the Court related to the two warrants
(exhibits 1 and 2) shows that the affidavits were signed
before the county judge on the same day (January 22, 2014)
that the warrants were. The dates alleged by the defendant
are not supported by the evidence.
d) Venue was not established, due to insufficient factual
basis. Count I alleges a July 13 date of commission which in
fact precedes the actual events. In Count II, the dates are
not stated in the factual basis. The date stamp on a video
establishes that the events depicted in the video could not
have occurred in Nebraska.
The establishment of a factual basis is not the same as a
trial. The State need not prove beyond a reasonable doubt all
the elements in a summary statement to the Court. To accept a
plea resulting in a guilty finding, the judge must be
satisfied that a factual basis exists for the plea.
The county attorney in this case related that the assaults
began about two years previous. They occurred in different
locations, some in Henry, Nebraska (which is in Scotts Bluff
County), and some in Wyoming. Two instances of oral sex
between the defendant and his son were reported in the past
year. The son witnessed the defendant sexually assaulting his
sister in December of 2013, the month before his arrest.
The video (which is not a part of the record and which the
Court has not seen) apparently has a time stamp of November
of 2013, and is an example of the conduct, not necessarily
proof of a particular act on a particular day, or at a
particular location. And, the video also goes with the visual
depiction charge, which refers to one who makes,
publishes, directs, creates, provides or in any manner
generates a visual depiction of sexually explicit
conduct involving a child as a participant. The video was
found when searching the defendant's computer, which was
seized in Scotts Bluff County. The evidence also shows that
four different videos were mentioned by the victims. Some
assaults referred to occurred in the camper when it was
parked in Henry, and some in Wyoming of a hunting trip.
See State v. Bargen, 219 Neb. 416, (1985); State
v. Jones, 214 Neb. 145, (1988) (holding that
sufficiently detailed complaint; prosecutor's summarized
facts accepted as true by defendant; finding that plea was
intelligently and voluntarily made; and record at sentencing,
including presentence report, supplied sufficient factual
basis for judge).
The defendant made no comment on the factual basis given
despite an opportunity to do so at the time he entered his
The defendant alleges no facts to show that counsel was
deficient in failing to investigate the venue of the charges.
The factual basis given shows venue to be proper, and the
defendant declined to comment on the factual basis received
by the Court.
e) Defense counsel did not develop the theory of another
suspect than the defendant.
This is apparently a bare assertion that some other person
committed the assaults. This person, named James Daniel
Seadorf, may have assaulted the children as well. But as far
as his counsel's performance, it does not matter. The
children reported that their father, the defendant, assaulted
them. There was no issue of the identity of the assailant
being anyone other than the defendant.
In this case, the defendant reported voluntarily to the
sheriff's office and confessed. He did this after his
wife came home and found the video he prepared of himself and
their daughter engaging in sexual acts. He was possibly
accompanied by his pastor, who may have urged him to report
the matter. There is absolutely no evidence or even an
assertion by the defendant in his motion to support the
filing of a motion to suppress his statements. His attorney
was faced with a situation of representing a client who had
already made a full confession, one supported by the
statements of the victims, and a video the defendant made of
himself assaulting his daughter, and other corroborating
evidence as well. The factual basis given at the time of the
plea was more than sufficient to establish the charged
conduct occurred, and that it occurred in Scotts Bluff County
at or near the dates alleged. There is no showing of
incompetent counsel or prejudice sufficient to justify an
evidentiary hearing and appointment of counsel.
Mr. Wilson makes many assertions, most of which are
conclusory only or not supported by facts in the record by
which the Court could find if proved constitute a denial or
violation of his rights under the U.S. or Nebraska
Constitution, causing the judgment against the defendant to
be void or voidable. The records and files in the case
affirmatively show that the defendant is entitled to no
relief, and therefore the court is not required to grant an
evidentiary hearing or appoint an attorney.
No authority is cited to support the retention of an
investigator to assist the defendant in developing a basis
for a motion for post-conviction relief. What the defendant
seeks with an investigator is to pursue Seadorf as the actual
perpetrator. While it may be true others have victimized
J.W., in this case J.W. and the other victim, in their
statements, positively identified the defendant as the one
who assaulted them. The defendant confessed to assaulting
both the victims in this case, his son and daughter.
The Court denies an evidentiary hearing, denies the request
to appoint counsel, and denies the request to retain an
(Filing no. 11-10 at CM/ECF pp. 156-159.) (Emphasis
appealed, and the Nebraska Court of Appeals affirmed the
state district court's denial of post-conviction relief
by sustaining the State's motion for summary affirmance.
Wilson's brief on appeal argued only three of the claims
presented here-Claim One, Ground 2 of Claim Two and Ground 3
of Claim Two. (Filing no. 11-6 at CM/ECF pp. 6,
14-44.) The Nebraska Supreme Court denied Petitioner's
request for further review, and the mandate was issued on