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Wilson v. Frakes

United States District Court, D. Nebraska

May 29, 2019

TIMOTHY W. WILSON, Petitioner,
v.
SCOTT R. FRAKES, Respondent.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.

         Timothy 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.

         The 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.

         Claims

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.

         Procedural History [1]

         On May 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 convictions.

         Petitioner 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.

         On 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.[2] 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 properly used.
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 warrant.
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 pleas.
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 investigator.

(Filing no. 11-10 at CM/ECF pp. 156-159.) (Emphasis in original.)

         Petitioner 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 ...


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