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Bates v. Frakes

United States District Court, D. Nebraska

July 2, 2019

KEVIN J. BATES, Petitioner,
v.
SCOTT R. FRAKES, Respondent.

          ORDER

          Laurie Smith Camp, Senior United States District Judge.

         This matter is before the court on Petitioner Kevin J. Bates' (“Petitioner” or “Bates”) Petition for Writ of Habeas Corpus. (Filing No. 1.) For the reasons that follow, Bates' habeas petition is denied and dismissed with prejudice.

         I. CLAIMS

         Summarized and condensed, and as set forth in the court's initial review order (filing no. 7), Bates asserted the following claims that were potentially cognizable in this court:

Claim One: Bates was denied the constitutional right to a fair trial because the state district court committed plain error by permitting Lopez-Bravo to invoke his Fifth Amendment privilege against self-incrimination in the presence of the jury.
Claim Two: Bates was denied effective assistance of counsel because trial counsel (1) failed to ask for a continuance to obtain a translation of the Spanish language text messages between Callahan and Lopez-Bravo and (2) failed to confront and cross-examine Callahan and Lopez-Bravo concerning their motives to fabricate, any understandings or agreements as to any present or future prosecution(s), or threats made by law enforcement in exchange for their testimony during the course of trial.
Claim Three: Bates was denied effective assistance of counsel because appellate counsel failed to raise on direct appeal the following claims of ineffective assistance of trial counsel: (1) the allegations in Claim Two, subpart (1), supra; (2) the allegations in Claim Two, subpart (2), supra; (3) trial counsel ceased cross-examination of Lopez-Bravo upon his Fifth Amendment invocation; (4) trial counsel failed to object to, move to strike testimony, move for curative instruction, move to dismiss charges, and preserve for appellate review the violation of due process when the prosecutor knowingly presented false testimony of Callahan and Lopez-Bravo; (5) trial counsel failed to discuss with Bates and present a defense that witness Callahan suffered drug-induced hallucinations and perceptual distortions and failed to consult with or call an expert witness to describe the effects of drug interactions; and (6) trial counsel failed to object to the form of jury instructions and request a jury instruction which specifically instructed the jury that intent is a material element of assault in the second degree and third degree domestic assault.

(Filing No. 7 at CM/ECF pp. 1-2 (non-substantive edits made for clarity).)

         II. BACKGROUND

         A. Conviction and Sentence

         The court states the facts as they were recited by the Nebraska Court of Appeals in State v. Bates, No. A-14-1081, 2015 WL 7261034 (Neb. Ct. App. Nov. 17, 2015) (unpublished). (Filing No. 11-1.) See Bucklew v. Luebbers, 436 F.3d 1010, 1013 (8th Cir. 2006) (utilizing state court's recitation of facts on review of federal habeas petition).

         On February 8, 2014, Melissa Callahan, Bates' then girlfriend, went to visit Bates, who was working at his parents' farm. Bates entered Callahan's vehicle and an argument ensued. Callahan claims they argued because she asked him to close the door because she was cold; Bates says he became upset when he noticed “track marks” on Callahan's arm, which he assumed meant she was using methamphetamine (meth) again. Callahan also claims that Bates assaulted her in the vehicle, which Bates denies.

         Bates and Callahan were sitting in a vehicle in Bates' parents' driveway when Callahan's friend, Eswin Lopez-Bravo, arrived. Callahan testified at trial that Bates exited the vehicle and approached Lopez-Bravo's car while she waited. She said the men talked briefly and then Bates began punching Lopez-Bravo. Bates, however, claimed that Callahan got out of the vehicle to talk to Lopez-Bravo while he stayed behind. Bates said Callahan and Lopez-Bravo started arguing over what he thought was money. According to Bates, Lopez-Bravo grabbed Callahan, so Bates got out of the vehicle to intervene. Bates saw what he thought was a bag of meth in Lopez-Bravo's hand. Bates claimed that Lopez-Bravo then hit him on the side of the head, so Bates swung back and punched him three times. Bates also punched out the window of Lopez-Bravo's vehicle.

         Prior to trial, the State filed a motion in limine asking the court to prohibit Bates from offering testimony or evidence concerning the use or possession of illegal drugs by Callahan or Lopez-Bravo. At a hearing on the motion, Bates argued that the ability to refer to the use of meth was necessary because his theory was that the incident on February 8, 2014 was a drug deal or collection of money that went wrong. He claimed that the relationship between Callahan and Lopez-Bravo was based almost completely on the use of meth, and they admitted at their depositions to using meth together. The district court granted the motion in part, ruling that Bates was prohibited from inquiring into Callahan's and Lopez-Bravo's prior use of drugs; however, he was not forbidden from adducing evidence that at the time of the occurrences either witness was in the possession of drugs as observed by a witness.

         At trial, the State called Lopez-Bravo as a witness. Immediately upon his taking the stand and providing his name, Bates asked that the court advise Lopez-Bravo of his Fifth Amendment right against self-incrimination. The court declined to do so at the time, indicating that it would wait to do so until the issue was raised by a question. Lopez-Bravo was then questioned by the State and answered all of the questions posed to him on direct examination. The State did not inquire into any meth use by Lopez-Bravo.

         During cross-examination, however, Bates began questioning Lopez-Bravo about meth. Lopez-Bravo denied going to Bates' parents' residence to deliver drugs to Callahan and denied hiding drugs on the property. Lopez-Bravo admitted that he was under the influence of meth on February 8, 2014 and had smoked meth 3 days before trial. Bates' counsel then asked Lopez-Bravo who he smoked meth with 3 days prior, and the court interjected and advised Lopez-Bravo of his Fifth Amendment right to remain silent and avoid self-incrimination. The court then sustained the State's relevance objection to the question. Bates continued cross-examining Lopez-Bravo on other topics and then asked if he deals or sells meth. The court again advised Lopez-Bravo that if he answers the question, he may be providing information to the State that could be used to prosecute him and that he has a right to remain silent. As a result, Lopez-Bravo invoked his right to remain silent. Bates then stated that he had no further questions for the witness.

         The jury ultimately found Bates guilty of second degree assault, third degree domestic assault, and criminal mischief.[1] The court found that the domestic assault was a second offense and that Bates was a habitual criminal. Bates was sentenced to consecutive sentences of 18 to 20 years, 20 months to 60 months, and 90 days.

         B. Direct Appeal

         Bates appealed only his conviction and sentence for second degree assault aggravated upon the habitual criminal count to the Nebraska Court of Appeals and was represented by different counsel than at trial. (Filing No. 11-1.) Bates argued that (1) the state district court committed plain error by permitting Lopez-Bravo to invoke his Fifth Amendment privilege against self-incrimination in the presence of the jury and (2) he received ineffective assistance of counsel when counsel failed to move to strike Lopez-Bravo's testimony. (Id. at CM/ECF pp. 3-6; Filing No. 11-5.) The Nebraska Court of Appeals agreed that the district court erred in allowing Lopez-Bravo to invoke his right to remain silent in the presence of the jury but concluded that such error was harmless beyond a reasonable doubt. (Filing No. 11-1 at CM/ECF pp. 3-5.) The court also found no merit to the ineffective assistance of counsel claim. (Id. at CM/ECF p. 5.) Therefore, the court affirmed Bates' conviction and sentence. (Id. at CM/ECF p. 6.)

         Bates filed a petition for further review with the Nebraska Supreme Court. (Filing No. 11-3 at CM/ECF p. 3; Filing No. 11-7.) He asserted that the “Nebraska Court of Appeals erred in finding the trial court's error harmless as any negative inference to be drawn from the witness's invocation could not cure the constitutional violation caused by the witness's effective termination of Confrontation and Cross-examination.” (Filing No. 11-7 at CM/ECF p. 3.) The Nebraska Supreme Court denied Bates' petition for further review on January 13, 2016, and issued its mandate on January 29, 2016. (Filing No. 11-3 at CM/ECF p. 3.)

         C. Postconviction Action

         Bates filed a pro se verified motion for postconviction relief on September 1, 2016. (Filing No. 11-13 at CM/ECF pp. 20-33.) Bates alleged that his trial counsel was ineffective in six respects: (1) failing to ask for a continuance to obtain a translation of the Spanish language text messages between Callahan and Lopez-Bravo; (2) ceasing cross-examination of Lopez-Bravo upon his Fifth Amendment invocation; (3) failing to confront and cross-examine Callahan and Lopez-Bravo concerning their motives to fabricate, any understandings or agreement as to any present or future prosecution(s), or threats made by law enforcement in exchange for their testimony during the course of trial; (4) failing to object to and move to strike the testimony of witnesses, move for a curative instruction, move to dismiss charges, and preserve for appellate review violations of his due process rights when “the prosecutor knowingly presented false testimony of Callahan and Lopez-Bravo”; (5) failing to discuss with Bates and present the defense that Callahan suffered drug-induced hallucinations and perceptual distortions and for failing to consult with or call an expert witness or psychiatrist to describe the effects; and (6) failing to object to the form of the jury instructions and request a jury instruction which specifically instructed the jury that intent is a material element of second degree assault and third degree domestic assault (Id. at CM/ECF pp. 23-31.) Bates also alleged that his appellate counsel was ineffective in failing to raise the six ineffective assistance of trial counsel claims on direct appeal. (Id. at CM/ECF pp. 31-32.) In a written order entered January 17, 2017, the state district court denied postconviction relief on all grounds without an evidentiary hearing. (Id. at CM/ECF pp. 36-54.)

         Bates appealed to the Nebraska Court of Appeals. (Filing No. 11-2; Filing No. 11-8.) In addition to raising the same ineffective assistance of counsel claims that he raised in his postconviction motion, Bates asserted that the state district court erred in denying his request for an evidentiary hearing and committed plain error when submitting untranslated Spanish text messages into evidence and allowing them into the jury room during deliberations. (Filing No. 11-2 at CM/ECF pp. 2-10; Filing No. 11-8.) The Nebraska Court of Appeals concluded that all the ineffective assistance of trial counsel claims were procedurally barred because they could have been raised on direct appeal as he had different appellate counsel than trial counsel and there was no argument or evidence that he was not aware of trial counsel's alleged deficiencies at the time of direct appeal. (Filing No. 11-2 at CM/ECF p. 3.) The court further held that all the ineffective assistance of appellate counsel claims were without merit and, thus, they were properly denied without an evidentiary hearing. (Id. at CM/ECF pp. 3-10.) Finally, the court declined to address the plain error claim because he did not raise it in his postconviction motion. (Id. at CM/ECF p. 10.) Therefore, the Nebraska Court of Appeals affirmed the state district court's denial of postconviction relief. (Id.)

         Bates filed a petition for further review with the Nebraska Supreme Court. (Filing No. 11-4.) Bates raised the same claims that he raised in the Nebraska Court of Appeals. (Filing No. 11-11.) The Nebraska Supreme Court denied Bates' petition for further review on June 11, 2018, and issued its mandate on June 26, 2018. (Filing No. 11-4 at CM/ECF pp. 2-3.)

         D. Habeas Petition

         Bates filed his Petition for Writ of Habeas Corpus in this court on July 9, 2018. (Filing No. 1.) In response to the Petition, Respondent filed an Answer (filing no. 16), a Brief (filing no. 19), and the relevant state court records (filing no. 11). Bates filed a brief (filing no. 21) in response to Respondent's Answer, and Respondent filed a reply brief (filing no. 22). This matter is fully submitted for disposition.

         III. OVERVIEW OF APPLICABLE LAW

         Various strands of federal habeas law intertwine in this case. They are (1) exhaustion and procedural default; (2) the deference that is owed to the state courts when a federal court reviews the factual or legal conclusions set forth in an opinion of a state court; and (3) the standard for evaluating a claim of ineffective assistance of counsel. The court elaborates upon those concepts next, so that it may apply them later in a summary fashion as it reviews Bates' claims.

         A. Exhaustion and Procedural Default

         As set forth in 28 U.S.C. § 2254:

(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

28 U.S.C. § 2254(b)(1).

         The United States Supreme Court has explained the habeas exhaustion requirement as follows:

Because the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts . . . state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.

O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

         A state prisoner must therefore present the substance of each federal constitutional claim to the state courts before seeking federal habeas corpus relief. In Nebraska, “one complete round” ordinarily means that each § 2254 claim must have been presented in an appeal to the Nebraska Court of Appeals, and then in a petition for further review to the Nebraska Supreme Court if the Court of Appeals rules against the petitioner. See Akins v. Kenney, 410 F.3d 451, 454-55 (8th Cir. 2005).

         “In order to fairly present a federal claim to the state courts, the petitioner must have referred to a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or a state case raising a pertinent federal constitutional issue in a claim before the state courts.” Carney v. Fabian, 487 F.3d 1094, 1096 (8th Cir. 2007) (internal citation and quotation omitted). Although the language need not be identical, “[p]resenting a claim that is merely similar to the federal habeas claim is not sufficient to satisfy the fairly presented requirement.” Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir. 1999). In contrast, “[a] claim has been fairly presented when a petitioner has properly raised the ‘same factual grounds and legal theories' in the state courts which he is attempting to raise in his federal habeas petition.” Wemark v. Iowa, 322 F.3d 1018, 1021 (8th Cir. 2003) (citation omitted).

         Where “no state court remedy is available for the unexhausted claim-that is, if resort to the state courts would be futile-then the exhaustion requirement in § 2254(b) is satisfied, but the failure to exhaust ‘provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim, unless the petitioner can demonstrate cause and prejudice for the default.'” Armstrong v. Iowa, 418 F.3d 924, 926 (8th Cir. 2005) (quoting Gray v. Netherland, 518 U.S. 152, 162 (1996)).

         To be precise, a federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule “unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). Also, a credible showing of actual innocence may allow a prisoner to pursue his constitutional claims on the merits notwithstanding the existence of a procedural bar to relief. McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). To invoke the actual innocence exception, a petitioner “must show that in light of all the evidence, ‘it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'” Jennings v. United States, 696 F.3d 759, 764-65 (8th Cir. 2012) (quoting Schlup v. Delo, 513 U.S. 298, 327, (1995)). “‘[A]ctual innocence' means factual innocence, not mere legal insufficiency.” Id. (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)).

         B. Nebraska Law Relevant to Procedural Default

         Under Nebraska law, you don't get two bites of the postconviction apple; that is, “[a]n appellate court will not entertain a successive motion for postconviction relief unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time the movant filed the prior motion.” State v. Ortiz, 670 N.W.2d 788, 792 (Neb. 2003). Additionally, Nebraska has a statute of limitations for bringing postconviction actions that is similar to federal law. It reads:

(4) A one-year period of limitation shall apply to the filing of a verified motion for postconviction relief. The one-year limitation period shall run from the later of:
(a) The date the judgment of conviction became final by the conclusion of a direct appeal or the expiration of the time for filing a direct appeal;
(b) The date on which the factual predicate of the constitutional claim or claims alleged could have been discovered through the exercise of due diligence;
(c) The date on which an impediment created by state action, in violation of the Constitution of the United States or the Constitution of Nebraska or any law of this state, is removed, if the prisoner was prevented from filing a verified motion by such state action;
(d) The date on which a constitutional claim asserted was initially recognized by the Supreme Court of the United States or the Nebraska Supreme Court, if the newly recognized right has been made applicable retroactively to cases on postconviction collateral review; or
(e) August 27, 2011.

Neb. Rev. Stat. § 29-3001(4) (West).

         C. Deferential Standard Under 28 U.S.C. § 2254(d)

         When a state court has adjudicated a habeas petitioner's claim on the merits, there is a very limited and extremely deferential standard of review both as to the law and the facts. See28 U.S.C. § 2254(d). Section 2254(d)(1) states that a federal court may grant a writ of habeas corpus if the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). As explained by the Supreme Court in Williams v. Taylor, 529 U.S. 362 (2000), a state court acts contrary to clearly established federal law if it applies a legal rule that contradicts the Supreme Court's prior holdings or if it reaches a different result from one of that Court's cases despite confronting indistinguishable facts. Id. at 405-06. Further, “it is not enough for [the court] to conclude that, in [its] independent judgment, [it] would have applied federal law differently from the state court; the state court's application must have been objectively unreasonable.” Rousan v. Roper, 436 F.3d 951, 956 (8th Cir. 2006).

         With regard to the deference owed to factual findings of a state court's decision, section 2254(d)(2) states that a federal court may grant a writ of habeas corpus if a state court proceeding “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Additionally, a federal court must presume that a factual determination made by the state court is correct, unless the petitioner “rebut[s] the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

         As the Supreme Court noted, “[i]f this standard is difficult to meet, that is because it was meant to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011). The deference due state court decisions “preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents.” Id. Indeed, “[i]t bears ...


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