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Floyd v. Frakes

United States District Court, D. Nebraska

September 16, 2019

WILLIAM C. FLOYD JR., Petitioner,
v.
SCOTT FRAKES, Director of the Nebraska Department of Correctional Services; and BRAD HANSEN, Warden Tecumseh State Correctional Institution; Respondents.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge.

         This matter is before the court on Petitioner William C. Floyd, Jr.'s (“Petitioner” or “Floyd”) Petition for Writ of Habeas Corpus. (Filing No. 127 & Filing No. 131.) For the reasons that follow, Petitioner's habeas petition is denied and dismissed with prejudice.

         I. CLAIMS

         Summarized and condensed, and as set forth in the court's order filed November 9, 2017 (Filing No. 136), Petitioner asserted the following claims that were potentially cognizable in this court:

Claim One: Petitioner was denied effective assistance of counsel because trial counsel (1) failed to investigate Carrissa Flanagan, Maurice Thomas, and men hired to retaliate against Maurice Davis and his family as possible suspects and failed to introduce that evidence at trial (Filing No. 127 at CM/ECF pp. 17, 18-19, 33, 34-35); (2) failed to interview Becky Breyman, Felicia Williams, and Coney Stephens (Id. at CM/ECF p. 18); (3) failed to subpoena Traeshawn Davis to testify at trial, or alternatively, introduce his prior trial testimony (Id. at CM/ECF pp. 20, 33); (4) failed to properly investigate the crime scene and the Omaha Police Department investigation in order to effectively impeach Shantelle Vickers' testimony at trial (Id. at CM/ECF pp. 20-21, 36); (5) failed to interview Steven Lindsey[1] and subpoena him to testify at trial (Id. at CM/ECF pp. 22, 33); (6) failed to investigate Pierce Armstead and subpoena him to testify at trial (Id. at CM/ECF pp. 22-23); (7) failed to investigate Petitioner's “unusual gait” and eyesight (Id. at CM/ECF p. 24); (8) failed to order any ballistic examination or evaluation of trajectory and residue soot of the bullet removed from the windowsill (Id. at CM/ECF p. 26); (9) failed to subpoena Shantelle Vickers' telephone records from October 7 and 8, 2003 (Id.); (10) failed to interview Howard Banister (Id. at CM/ECF p. 27); (11) failed to adequately investigate the prior bad act that occurred on April 24, 2003 (Id.); (12) failed to present truthful evidence at the pretrial hearing and at trial about the April 24, 2003, prior bad act (Id. at CM/ECF p. 28); (13) failed to challenge in a motion to suppress the validity of Shantelle Vickers' affidavit as probable cause for the arrest warrant (Id.); (14) failed to conduct proper voir dire when counsel failed to remove certain jurors for cause or with peremptory strikes and used peremptory strikes in a gender-biased manner (Id. at CM/ECF pp. 29-31); (15) failed to move for a mistrial or request a curative instruction after a juror discussed his opinion of Petitioner's guilt in front of the other jurors during voir dire (Id. at CM/ECF p. 30); (16) failed to object when the prosecutor used peremptory strikes in a gender-biased manner (Id. at CM/ECF p. 31); (17) prohibited Petitioner from testifying (Id. at CM/ECF pp. 27, 32); (18) failed to subpoena Shantelle Vickers' medical records to impeach her testimony at trial about Petitioner's acts of domestic violence against her (Id. at CM/ECF p. 35); (19) failed to investigate Shantelle Vickers' abuse of Petitioner (Id. at CM/ECF pp. 35-36); (20) failed to subpoena Officer Allen Wagner to testify at trial (Id. at CM/ECF p. 36); (21) failed to effectively cross-examine Ruth Buie about Petitioner's clothing, the exact times he was with her that day, his “unusual gait, ” and his glasses (Id. at CM/ECF p. 37); (22) failed to effectively cross-examine Shawn Smith about Petitioner's “unusual gait” and glasses (Id.); (23) failed to cross-examine Petitioner's mother about his “unusual gait” (Id. at CM/ECF p. 38); (24) failed to cross-examine Shantelle Vickers and Andre Jack about whether the suspect moved in a unique way or wore glasses (Id.); (25) failed to investigate the location of the missing video and audiotape of Shantelle Vickers' first statement to law enforcement (Id. at CM/ECF p. 39); (26) failed to assert a Brady violation with regard to the missing video and audiotape (Id.); (27) failed to adduce at trial the discrepancies between the truth and Shantelle Vickers' first statement to law enforcement (Id.); (28) failed to investigate the location of the photo array that law enforcement displayed to Andre Jack (Id. at CM/ECF p. 40); (29) failed to assert a Brady violation with regard to the photo array (Id.); (30) failed to object to Exhibits 145 and 146 and testimony about them (Id. at CM/ECF p. 44); (31) failed to impeach Detective Christopher Perna's testimony at trial with evidence that Petitioner escaped from him during the April 24, 2003, prior bad act (Id. at CM/ECF p. 45); (32) failed to exclude or remedy Shantelle Vickers' testimony that she and Petitioner had hundreds of fights (Id.); (33) failed to object to erroneous jury instructions (Id. at CM/ECF pp. 45-46); (34) failed to object to prosecutorial misconduct during closing arguments and the direct examination of Shantelle Vickers (Id. at CM/ECF pp. 46-48); (35) made an improper opening statement “basically telling the jury that all the evidence against [Petitioner] was true” (Id.); (36) failed to stay the proceedings with respect to Count III, felon in possession of a firearm, for review in the federal courts (Filing No. 131 at CM/ECF p. 10.); (37) failed to object to prejudicial testimony from Shantelle Vickers regarding two threatening phone calls from Petitioner (Id.); (38) failed to call Carolyn Floyd as a character witness (Id.); and (39) failed to sequester jurors (Id.).
Claim Two: Petitioner was denied effective assistance of counsel because counsel failed to raise on direct appeal (1) prosecutorial misconduct because the State withheld from Petitioner the police report about the video and audiotape of Shantelle Vickers' first statement to law enforcement and the photo array that law enforcement displayed to Andre Jack; (2) sufficiency of the evidence for Petitioner's convictions of first degree murder and manslaughter of an unborn child[2]; (3) prosecutorial misconduct because the State introduced the 911 tape into evidence at trial; (4) prosecutorial misconduct because the State presented false and misleading evidence to the jury; (5) judicial misconduct because the trial court overruled trial counsel's motion to remove a juror for cause who formed a preconceived opinion about Petitioner's guilt; (6) judicial misconduct because the trial court erroneously instructed the jury; (7) insufficient notice of the nature and cause of the accusation during Petitioner's arraignment on the second amended information; (8) the unconstitutionality of Petitioner's conviction and sentence for Count III, felon in possession of a firearm; (9) judicial misconduct for imposing a sentence on Count III when the State failed to offer documentary evidence that the underlying offense was a felony; (10) prosecutorial misconduct because law enforcement lacked probable cause to arrest Petitioner; and (11) judicial misconduct because the trial court judge refused to recuse himself “and denied counsel during hearing to litigate;” (12) Petitioner's assigned errors on both direct appeals as federal constitutional claims (Filing No. 127 at CM/ECF pp. 49-50); [and] (13) payment of certain state witnesses to testify against Petitioner (Filing No. 131 at CM/ECF p. 15).
Claim Three: Petitioner was denied the constitutional right to a fair trial because (1) the prosecutor and trial counsel used peremptory strikes in a gender-biased manner (Filing No. 127 at CM/ECF pp. 31-32); (2) the State committed prosecutorial misconduct when it withheld from Petitioner the video and audiotape of Shantelle Vickers' first statement to law enforcement and the photo array that law enforcement displayed to Andre Jack in violation of Brady (Id. at CM/ECF pp. 39-40); (3) Detective Christopher Perna committed misconduct when he coached Shantelle Vickers during her second statement to law enforcement and altered the crime scene diagram to match Vickers' “new” version of events (Id. at CM/ECF pp. 23, 25, 40-44); (4) the State committed prosecutorial misconduct when it permitted evidence of the altered crime scene at trial (Id. at CM/ECF p. 44); (5) the trial court erroneously instructed the jury (Id. at CM/ECF pp. 45-46); and (6) the State committed prosecutorial misconduct during closing arguments and direct examination of Shantelle Vickers (Id. at CM/ECF pp. 46-48).
Claim Four: Petitioner was denied effective assistance of counsel because trial and appellate counsel failed to maintain sufficient client contact with Petitioner to enable Petitioner “to obtain or pursue significant avenues which would have led to exculpatory information” and “to allow for [Petitioner] to make decisions which would affect his opportunity to preserve claims.” (Id. at CM/ECF pp. 51-54.)
Claim Six:[3] Each of Petitioner's aforementioned claims and their subparts constitute a violation of his rights to Due Process, Equal Protection, and fair process under the Fourteenth Amendment. (Id. at CM/ECF p. 55.)
Claim Seven: Petitioner has presented a claim of Actual Innocence as a gateway through any type of procedural default. (Filing No. 131 at CM/ECF p. 15.)

(Filing No. 136 at CM/ECF pp. 2-7.)

         II. BACKGROUND

         A. Convictions and Sentences

         The court states the facts as they were recited by the Nebraska Supreme Court on direct appeal following retrial. See State v. Floyd, 277 Neb. 502, 763 N.W.2d 91 (2009) (Filing No. 9-5). 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 July 30, 2004, Floyd was charged with first degree murder, manslaughter of an unborn child, and being a felon in possession of a weapon. Floyd was originally convicted in 2005 of these charges; however, the murder and manslaughter convictions were reversed on appeal by this court as the result of improper communication between the jury and a bailiff.[4] [State v. Floyd, 272 Neb. 898, 725 N.W.2d 817 (2007), disapproved, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727.]

         Floyd was retried. Following a jury trial, he was again convicted of first degree murder and manslaughter of an unborn child. Floyd was sentenced to life imprisonment on the murder conviction and 20 to 20 years' imprisonment on the manslaughter conviction.

         The charges against Floyd arose out of the shooting death of Destiny Davis, who was pregnant at the time of her death. The evidence establishes that on October 7, 2003, Davis and several other individuals, including Davis' sister, Shantelle Vickers, were in the living room in a home in Omaha, Nebraska. Just before 10:30 p.m., Vickers left the living room for the bathroom. The other individuals, including Davis, remained in the living room. While in the bathroom, Vickers heard gunshots. Those gunshots were fired from outside the living room window. Davis and two others were hit; Davis and her unborn child were killed. Vickers testified that after hearing the gunshots, she looked out the bathroom window and saw a man she identified as Floyd outside the house.

         The State's theory of prosecution was that Vickers, who had previously been romantically involved with Floyd, was the intended victim of the shooting. In support of this theory, Vickers testified as to her combative relationship with Floyd, including specific incidents in which Floyd acted in a violent manner toward her. In particular, Vickers testified to four separate incidents: one on January 21, 2003; another sometime in the fall of 2003; one on October 6, 2003; and one in the afternoon on October 7, 2003, the day of the shooting. Floyd objected to the introduction of all but the October 7 incident. Floyd's motion in limine was denied. The court concluded that the prior history of violence went not to Floyd's propensity for violence, but to Floyd's motive or intent to commit the crimes charged.

         Voir dire in this case was held on August 20 and 21, 2007. At the conclusion of the first day of voir dire, the jury was admonished to not “read, view or listen to any reports about this case . . . . If any accounts of this case do come to your attention, you must immediately disregard them.”

         An Omaha World-Herald newspaper article regarding the trial was published during the jury selection process and appeared in both the August 20, 2007, evening edition and the August 21 morning edition of the newspaper. Based upon the publication of the article, Floyd motioned for a mistrial. The court reserved ruling on the motion and conducted an inquiry into the jury pool's exposure to the article.

         During its inquiry, eight members of the jury panel admitted exposure to the article in some form. Each member of the panel was questioned separately. Four prospective jurors were struck for cause at the conclusion of their individual questioning; another two prospective jurors were excused for cause at the conclusion of all questioning. At that time, the district court also denied Floyd's motion for mistrial.

         Floyd also objected to the two remaining members of the panel, both of whom eventually sat on the jury. The district court denied those motions. The questioning of juror D.W. established that he saw the newspaper of a fellow prospective juror and noticed a headline that contained the words “Floyd, ” “retrial, ” and “2003.” D.W. indicated that once he saw the name and year, he “just looked down, ” and that he could not tell what the exact headline was and had no idea why a retrial was necessary. As for juror F.W., she testified that she was skimming the newspaper and saw the name “William Floyd” and that she “quickly put it [the newspaper] into the trash, I mean, as fast as I probably have in my life.” F.W. denied seeing or reading any other information from the article.

         B. Direct Appeal Following Retrial

         Floyd appealed his convictions and sentences to the Nebraska Supreme Court on January 4, 2008. (Filing No. 9-2.) Floyd was represented both at trial and on direct appeal by the same lawyer. Floyd argued that the state district court erred in (1) admitting evidence of specific incidents of Floyd's abuse of Vickers; (2) basing its ruling on the admissibility of evidence pursuant to Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404 (Reissue 2008), in part on testimony from a prior rule 404 hearing; (3) using an incorrect definition of “clear and convincing” in deciding whether the State met its burden under rule 404; (4) refusing to admit evidence of specific incidents of violence by Vickers toward her former and current husbands; and (5) denying Floyd's motion to strike or motion for mistrial due to the fact that several prospective jurors were exposed to a newspaper article regarding Floyd's retrial. Floyd, 277 Neb. at 506, 763 N.W.2d at 97. (Filing No. 9-5 at CM/ECF pp. 4-5.)

         In a written opinion filed April 3, 2009, the Nebraska Supreme Court rejected Floyd's claims on the merits. Floyd, 277 Neb. at 507-16, 763 N.W.2d at 98-103. (Filing No. 9-5 at CM/ECF pp. 5-13.) As the court found no merit to Floyd's assigned errors, the court affirmed his convictions and sentences. Floyd, 277 Neb. at 516, 763 N.W.2d at 103. (Filing No. 9-5 at CM/ECF p. 13.) The Nebraska Supreme Court overruled Floyd's motion for rehearing and issued its mandate on June 30, 2009. (Filing No. 9-2 at CM/ECF p. 3.)

         C. Postconviction Action

         Floyd filed a verified motion for postconviction relief on June 21, 2010. (Filing No. 31-2 at CM/ECF pp. 49-130; Filing No. 31-3 at CM/ECF pp. 1-21.) On June 2, 2011, Floyd filed an amended motion for postconviction relief. (Filing No. 10-3 at CM/ECF pp. 10-159; Filing No. 10-4 at CM/ECF pp. 1-9.) Floyd alleged instances of trial court error and a litany of ineffective assistance of counsel claims and challenged the constitutionality of his convictions and sentences. (Filing No. 10-3 at CM/ECF pp. 10-159; Filing No. 10-4 at CM/ECF pp. 1-9; Filing No. 10-6 at CM/ECF pp. 101-15.)

         The State filed a motion to dismiss Floyd's amended postconviction motion without an evidentiary hearing. (Filing No. 10-2 at CM/ECF pp. 21-37.) After reviewing the files and records, the state district court granted the State's motion to dismiss Floyd's amended postconviction motion without an evidentiary hearing. (Filing No. 10-6 at CM/ECF pp. 101-16.) In a written order, the court found that Floyd's claims concerning the constitutionality of his convictions and the alleged errors of the trial court were procedurally barred because they should have been argued on direct appeal. (Id. at CM/ECF p. 115.) On the claims of ineffective assistance, the district court found that Floyd failed to sufficiently plead prejudice and that the record affirmatively established that Floyd was not prejudiced by any of the allegations of ineffective assistance. (Id. at CM/ECF pp. 103-15.)

         Floyd appealed to the Nebraska Supreme Court, arguing that the state district court erred in denying his amended motion for postconviction relief without an evidentiary hearing on his ineffective assistance of counsel claims and in failing to appoint postconviction counsel. (Filing No. 9-12; Filing No. 9-14; Filing No. 10-1 at CM/ECF pp. 1; Filing No. 109-1 at CM/ECF pp. 5-6.) As articulated by the Nebraska Supreme Court, Floyd raised the following ineffective assistance of trial counsel claims: (1) failure to investigate other suspects; (2) failure to compare the bullets removed from Davis and the other victims; (3) failure to investigate whether Vickers could have identified Floyd from the bathroom window; (4) failure to request an independent forensic pathology expert and investigate the expert testimony; (5) failure to subpoena Officer Allen Wagner; (6) failure to subpoena Traeshawn Davis; (7) failure to subpoena Steven Lindsey; (8) failure to subpoena Carrissa Flanagain and Maurice Thomas; (9) failure to subpoena Dr. Darin Jackson; (10) failure to subpoena Becky Breyman, Coney Stephens, and Felicia Williams; (11) failure to subpoena Vickers and Theresa Gregg, the clinical manager of the emergency department at Creighton University Medical Center, to bring medical records relating to the alleged domestic abuse of Vickers by Floyd; (12) failure to exclude evidence of dismissed charges of assault with respect to the two other shooting victims; (13) failure to ask appropriate questions during voir dire; (14) failure to use peremptory strikes on jurors who were not removed for cause for seeing the newspaper article; (15) failure to request a pretrial jury instruction that the jurors avoid electronic media, such as twitter; (16) failure to use peremptory strikes on certain jurors for a variety of reasons; (17) failure to move to sequester the jury; (18) failure to interview jurors after trial to determine whether or not there was jury misconduct during trial and deliberations; (19) failure to object to improper closing arguments; (20) failure to object to testimony by Vickers that she had seen Floyd with a gun; and (21) failure in advising Floyd to not testify. (Filing No. 109-1 at CM/ECF pp. 9-29.)

         Floyd also argued that appellate counsel was ineffective for failing to raise Fourteenth Amendment claims on direct appeal, specifically: lack of jurisdiction, use of false evidence and witnesses, the State's failure to disclose impeachment evidence (Brady material), failure to give proper notice of the nature and cause of accusations against Floyd, improper jury instructions, failure to prove guilt beyond a reasonable doubt, incorrect elements for first degree murder and manslaughter of an unborn child, presenting evidence designed to inflame the jury, the trial court erred in accepting the jury's guilty verdict when there was no proof of venue, trial court erred in overruling counsel's motion to remove for cause juror who had formed an opinion about Floyd's guilt, erroneous jury instructions, and insufficient evidence in the second amended information on counts I, II, and III. (Filing No. 109-1 at CM/ECF pp. 29-31.)

         In a written memorandum opinion filed May 23, 2013, the Nebraska Supreme Court affirmed the state district court's decision to dismiss Floyd's amended motion for postconviction relief without an evidentiary hearing. (Filing No. 109-1.) The court found that each allegation of ineffective assistance of counsel was insufficient because either (1) Floyd failed to properly plead prejudice or (2) the record affirmatively demonstrated that Floyd was not prejudiced. (Id. at CM/ECF pp. 8-9.) The court also found that the state district court did not err in failing to appoint counsel because Floyd's amended postconviction motion presented no justiciable issues. (Id. at CM/ECF p. 31.) Floyd filed a motion for rehearing, which was denied as untimely on June 19, 2013. (Filing No. 9-3 at CM/ECF p. 4.)

         D. Habeas Petition

         Floyd filed his original Petition in this court on July 1, 2013 (Filing No. 1), an Amended Petition on July 7, 2017 (Filing No. 127), and Motion to Amend his Petition on October 6, 2017 (Filing No. 131). The “Petition” before the court consists of the Amended Petition (Filing No. 127) and Motion to Amend (Filing No. 131). In response to the Petition, Respondents filed an Answer (Filing No. 143), a Brief (Filing No. 144), and the relevant state court records (Filing Nos. 9, 10, 11, 12, 13, 31 & 109). Respondents argue that: (1) any habeas claims relating to Floyd's felon in possession of a firearm conviction are untimely and barred by the limitations period set forth in 28 U.S.C. § 2244(d); (2) the majority of Floyd's habeas claims relating to his murder and manslaughter convictions have been procedurally defaulted; and (3) any remaining claims that have not been procedurally defaulted have no substantive merit. (Filing No. 144 at CM/ECF p. 11.) Floyd filed a brief (Filing Nos. 186 & 187) in response to Respondents' Answer and supporting exhibits (Filing No. 192). Respondents filed a reply brief. (Filing No. 198.) This matter is fully submitted for disposition.

         III. STATUTE OF LIMITATIONS

         Respondents first argue that any claims relating to Floyd's conviction for felon in possession of a firearm are barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1).[5] Upon review, the court finds as follows.

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposed a one-year statute of limitations on petitions for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. 28 U.S.C. § 2244(d)(1). 28 U.S.C. § 2244(d) states:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

         In the first direct appeal, the Nebraska Supreme Court reversed Floyd's convictions for first degree murder and manslaughter of an unborn child but affirmed his conviction and sentence for felon in possession of a firearm. (Filing No. 9-4.) On February 14, 2007, the Nebraska Supreme Court denied Floyd's motion for rehearing. (Filing No. 9-1 at CM/ECF p. 3.) Thus, absent a later triggering date under 28 U.S.C. § 2244(d)(1)(B)-(D), Floyd's conviction for felon in possession of a firearm became final on May 15, 2007, which is ninety days after the Nebraska Supreme Court denied Floyd's motion for rehearing. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012) (holding that, for petitioners who do not pursue direct review all the way to the United States Supreme Court, a judgment becomes final “when the time for pursuing direct review in [the Supreme Court], or in state court, expires.”); King v. Hobbs, 666 F.3d 1132, 1135 (8th Cir. 2012) (“If the Supreme Court has jurisdiction to review the direct appeal, the judgment becomes final ninety days after the conclusion of the prisoner's direct criminal appeals in the state system.”) (citing Sup. Ct. R. 13.1). Accordingly, the one-year limitations period began to run from May 15, 2007. Floyd, however, did not file his original Petition in this court until July 1, 2013. (Filing No. 1.)

         Floyd's filing of his motion for postconviction relief in state district court on June 21, 2010 did not toll the limitations period for the felon in possession of a firearm conviction because the limitations period for that conviction had already expired. See Painter v. Iowa, 247 F.3d 1255, 1256 (8th Cir. 2001) (holding “the time between the date that direct review of a conviction is completed and the date that an application for state post-conviction relief is filed counts against the one-year period”). Thus, absent an equitable exception, any claims related to Floyd's felon in possession of a firearm conviction or sentence are barred by the statute of limitations.[6]

         To the extent Floyd asserts that the statute of limitations for his felon in possession of a firearm conviction should be tolled because the failure to file a timely habeas petition challenging that conviction was a result of his counsel's incompetence, the court disagrees. (Filing No. 186 at CM/ECF p. 4 (stating that appellate counsel's failure to “correctly advise and represent petitioner constitute[s] cause for not appeal[ing] or exhausting [the weapon conviction]”).) “A ‘petitioner' is ‘entitled to equitable tolling' only if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Equitable tolling is proper “only when extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.” Runyan v. Burt, 521 F.3d 942, 945 (8th Cir. 2008) (internal quotation omitted). As such, “equitable tolling is an exceedingly narrow window of relief.” Id. (internal quotation omitted). Case law has been clear that attorney mistakes, such as the failure to file a timely petition, are “simply not sufficient to warrant equitable tolling.” Holland, 560 U.S. at 656; see also Maples v. Thomas, 565 U.S. 281 (2012) (“Thus, when a petitioner's postconviction attorney misses a filing deadline, the petitioner is bound by the oversight and cannot rely on it to establish cause. We do not disturb that general rule.”); Lawrence v. Florida, 549 U.S. 327, 336-37 (2007) (“Attorney miscalculation is simply not sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners have no constitutional right to counsel.”); Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) (“[T]he principles of equitable tolling . . . do not extend to what is at best a garden variety claim of excusable neglect.”); Beery v. Ault, 312 F.3d 948, 951 (8th Cir. 2002) (“Ineffective assistance of counsel generally does not warrant equitable tolling.”).

         Furthermore, to the extent Floyd looks to Martinez v. Ryan, 566 U.S. 1 (2012), to support any argument that counsel's incompetence was an “extraordinary circumstance” that justifies equitable tolling, his reliance is misplaced. While Martinez changed the law regarding federal habeas review of procedurally defaulted claims, there has been no indication that the Supreme Court intended its procedural default analysis to apply to the statute of limitations, and courts have not extended the reasoning in Martinez to excuse untimely petitions. “Stated another way, the lack or ineffectiveness of counsel during postconviction collateral proceedings is not an ‘extraordinary circumstance' that warrants equitable tolling of the statute of limitations in § 2254 habeas actions.” Alvarado v. Hansen, No. 8:17CV283, 2018 WL 4006768, at *8 (D. Neb. Aug. 22, 2018), reconsideration denied, No. 8:17CV283, 2018 WL 4401732 (D. Neb. Sept. 14, 2018), certificate of appealability denied, No. 18-3108, 2019 WL 1467007 (8th Cir. Jan. 22, 2019); see also Lombardo v. United States, 860 F.3d 547, 555-61 (7th Cir. 2017) (court declined to recognize Martinez's framework as a means of establishing extraordinary circumstances for the purposes of equitable tolling); Arthur v. Thomas, 739 F.3d 611, 631 (11th Cir. 2014) (holding that the Martinez rule does not apply to the one-year limitations period in § 2254 cases or any potential tolling of that period); Parkhurst v. Wilson, 525 Fed.Appx. 736, 738 (10th Cir. 2013) (Martinez does not provide a basis for equitable tolling); Smith v. Hobbs, 2014 WL 2718698, at *2 (E.D. Ark. May 15, 2014) (Martinez holding is not an extraordinary circumstance that would justify equitable tolling; “[w]hether a claim is procedurally defaulted is a completely distinct question from whether it is barred by the . . . statute of limitations”).

         Thus, Floyd has failed to demonstrate that an “extraordinary circumstance” prevented timely filing of a habeas petition related to his conviction for felon in possession of a firearm. Floyd has also failed to establish, or even argue, that he was pursuing his rights diligently with respect to that conviction. Because Floyd provides no basis for extending the limitations period for his felon in possession of a firearm conviction, he is not entitled to any equitable tolling with respect to that conviction. Accordingly, the court will not address any claims in the Petition that are related to Floyd's felon in possession of a firearm conviction.

         The court will now turn to the claims in the Petition that relate to Floyd's convictions for first degree murder and manslaughter of an unborn child.

         IV. 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 Floyd's 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, “[a] motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal.” Hall v. State, 646 N.W.2d 572, 579 (Neb. 2002). See also State v. Thorpe, 858 N.W.2d 880, 887 (Neb. 2015) (“A motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal, no matter how those issues may be phrased or rephrased.”)

         Moreover, a person seeking post-conviction relief must present his or her claim to the district court or the Nebraska appellate courts will not consider the claim on appeal. State v. Deckard, 722 N.W.2d 55, 63 (Neb. 2006) (denying postconviction relief in a murder case and stating: “An appellate court will not consider as an assignment of error a question not presented to the district court for disposition through a defendant's motion for postconviction relief.”) Similarly, on appeal, the appealing party must both assign the specific error and specifically argue that error in the brief. Otherwise the claim is defaulted under Nebraska law. State v. Henry, 875 N.W.2d 374, 407 (Neb. 2016) (stating an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court).

         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. See 28 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.

         However, this high degree of deference only applies where a claim has been adjudicated on the merits by the state court. See Brown v. Luebbers, 371 F.3d 458, 460 (8th Cir. 2004) (“[A]s the language of the statute makes clear, there is a condition precedent that must be satisfied before we can apply the deferential AEDPA [Antiterrorism and Effective Death Penalty Act] standard to [the petitioner's] claim. The claim must have been ‘adjudicated on the merits' in state court.”).

         The Eighth Circuit clarified what it means for a claim to be adjudicated on the merits, finding that:

AEDPA's requirement that a petitioner's claim be adjudicated on the merits by a state court is not an entitlement to a well-articulated or even a correct decision by a state court. Accordingly, the postconviction trial court's discussion of counsel's performance-combined with its express determination that the ineffective-assistance claim as a whole lacked merit-plainly suffices as an adjudication on the merits under AEDPA.

Worthington v. Roper, 631 F.3d 487, 496-97 (8th Cir. 2011) (internal quotation marks and citations omitted).

         The court also determined that a federal court reviewing a habeas claim under AEDPA must “look through” the state court opinions and “apply AEDPA review to the ‘last reasoned decision' of the state courts.” Id. at 497. A district court should do “so regardless of whether the affirmance was reasoned as to some issues or was a summary denial of all claims.” Id.

         D. The Especially Deferential Strickland Standard

         When a petitioner asserts an ineffective assistance of counsel claim, the two-pronged standard of Strickland v. Washington, 466 U.S. 668 (1984), must be applied. ...


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