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Kidder v. Frakes

United States District Court, D. Nebraska

August 29, 2019

MATTHEW J. KIDDER, Petitioner,
v.
SCOTT R. FRAKES, the Director of the Nebraska Department of Correctional Services, Respondent.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE

         Matthew J. Kidder (Petitioner or Kidder) has filed a habeas corpus petition claiming that he was convicted of murder and use of a weapon to commit a felony and sentenced to life in prison, plus a consecutive sentence for use of a weapon, because counsel was ineffective in various ways.

         Respondent has filed a motion for summary judgment asserting that Petitioner's assertions of ineffective assistance of counsel are procedurally defaulted because, although some or all of those claims may have been raised in an unsuccessful post-conviction action before the state district court, Petitioner's appeal was dismissed as untimely. Therefore, Respondent argues that, having failed to give the Nebraska courts one complete round of review, Petitioner's claims have been procedurally defaulted without excuse. Petitioner responds by arguing, among other things, that if appeal was untimely it was not his fault.

         I agree with Respondent that the motion for summary judgment must be granted due to procedural default and that Petitioner's excuses are not sufficient to avoid the procedural default. My reasoning follows.

         Ineffective Assistance of Counsel

         Here is what I found were the ineffective assistance of counsel claims asserted by Kidder:

Claim One: The Petitioner was denied effective assistance of counsel because defense counsel: (a) did not object to the state's use of contaminated DNA evidence; (b) did not object to contradictory testimony as to how, when, and where the white phone cord was taken into custody and processed; (c) failed to bring to the court's attention testimony regarding secondary transfer and how easily DNA evidence can be contaminated; (d) failed to expose Patricia Springborg's perjured testimony; (e) failed to challenge testimony regarding rigor mortis, lividity, and time of death; (f) failed to challenge the accuracy of agent Mark Sedwick's testimony who did not have his own report at time of testimony in front of him; (g) failed to expose Detective Ryan Deuiss's perjured testimony concerning alleged statements made by Petitioner during audio-video recorded interviews that went unproven by the state during trial.
Filing no. 7 at CM/ECF pp. 1-2.

         The Overwhelming Evidence Against Kidder

         Because the “prejudice” prong of the “cause and prejudice” standard may be relevant, I next discuss the weight of the evidence.

         Jessica Nelson's mother received a telephone call advising that Nelson had not shown up for work. Her mother went to Nelson's house to check on her and discovered Nelson's body partially submerged in the bathtub, unclothed, with the water running. She was curled up in a fetal position, and one hand was clutching a cell phone charging cord. Nelson's clothes were piled in the tub near her feet. Blood was pooled under Nelson's head, and there was a ligature mark on her neck. State v. Kidder, 908 N.W.2d 1, 4 (Neb. 2018).

         In finding beyond a reasonable doubt that the error, if any, in failing to suppress evidence taken from a laptop, was harmless, the Nebraska Supreme Court detailed the overwhelming evidence again Kidder:

The record in this case demonstrates that any error in overruling the motion to suppress and the motion in limine was harmless. Both motions related exclusively to evidence obtained from Kidder's laptop computer. That evidence showed that sometime between June 20 and July 17, 2015, Kidder used explicit terms to search with his laptop computer for violent pornographic videos depicting acts that were similar to the manner in which Nelson was killed. We must consider this evidence relative to the rest of the evidence of Kidder's guilt.
First, there was uncontroverted physical evidence establishing Kidder's guilt. Kidder's DNA was found on Nelson's fingernails and on the cell phone cord used to strangle her. A few days after Nelson's body was discovered, Kidder was observed to have a cut on his hand consistent with a fingernail mark, and when Nelson's body was discovered, her thumbnail was bent back.
Next, there was detailed evidence of a confession. Kidder's cellmate testified that Kidder confessed to Nelson's murder. The cellmate's credibility was strengthened by the fact that he knew details about the crime and the crime scene that had not been released to the public.
Finally, in addition to the physical evidence and the confession, there was considerable circumstantial evidence establishing Kidder had both the motive and the opportunity to commit the crimes. Kidder left work shortly before the crimes occurred, and cell site location information placed his cell phone in the vicinity of Nelson's home around the time she was assaulted and strangled. Kidder also admitted to his father, in a recorded telephone conversation, that he was at Nelson's house for about 20 minutes on the night of the murder. Kidder admitted to investigators he wanted to “see [Nelson] naked, ” and Kidder's text messages to Nelson contained sexual overtures that were either rebuffed or ignored. There was evidence that in 2008, Kidder had choked and sexually assaulted a friend after she allowed him into her home. Likewise, Nelson was a friend of Kidder's and there were no signs of forced entry into Nelson's home.
The untainted, relevant evidence of Kidder's guilt was overwhelming, and the laptop computer evidence was cumulative of other relevant evidence tending to prove motive. Thus, even if the evidence obtained from Kidder's laptop computer was erroneously admitted at trial, we find the guilty verdicts were surely unattributable to that evidence. Any error in admitting the evidence from Kidder's laptop computer was harmless beyond a reasonable doubt. We therefore reject both of Kidder's assignments of error and affirm his convictions.

Id. 908 N.W.2d at 10.

         Undisputed Facts

         1. On September 4, 2015, the State charged Petitioner with First Degree Murder (a Class IA felony) and Use of a Deadly Weapon to Commit a Felony (a Class II felony). Filing no. 13-4 at CM/ECF pp. 1-2. The charges were in relation to the killing of ...


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