United States District Court, D. Nebraska
MATTHEW J. KIDDER, Petitioner,
SCOTT R. FRAKES, the Director of the Nebraska Department of Correctional Services, Respondent.
MEMORANDUM AND ORDER
RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE
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.
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.
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.
Assistance of Counsel
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
Filing no. 7 at CM/ECF pp. 1-2.
Overwhelming Evidence Against Kidder
the “prejudice” prong of the “cause and
prejudice” standard may be relevant, I next discuss the
weight of the evidence.
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).
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
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
Id. 908 N.W.2d at 10.
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