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Ueding-Nickel v. Frakes

United States District Court, D. Nebraska

September 16, 2019

CARL UEDING-NICKEL, Petitioner,
v.
SCOTT FRAKES, Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         Petitioner has filed a petition for a writ of habeas corpus challenging his conviction for sexually assaulting a young girl when the child was 11 years old. Petitioner asserts nine claims. Respondent has answered and filed the relevant state court records. The matter has been fully briefed. The petition will be denied and dismissed with prejudice because one claim has no merit and the others have been procedurally defaulted without sufficient excuse.

         The Claims

Claim One: Petitioner was denied effective assistance of trial counsel when trial counsel failed to investigate and present evidence that Petitioner's statement was involuntary on account of severe intoxication.
Claim Two: Petitioner was denied effective assistance of trial counsel when trial counsel failed to investigate and present evidence that Petitioner's statement was involuntary on account of severe mental illness.
Claim Three: Petitioner was denied effective assistance of trial counsel when trial counsel failed to investigate and present evidence that Petitioner's statement was involuntary on account of undue coercion by law enforcement.
Claim Four: Petitioner was denied effective assistance of trial counsel when trial counsel provided deficient performance when litigating a motion to suppress.
Claim Five: Petitioner was denied effective assistance of trial counsel when trial counsel failed to investigate and present exculpatory evidence.
Claim Six: Petitioner was denied effective assistance of trial counsel when trial counsel failed to investigate Petitioner's competency or seek a competency hearing.
Claim Seven: Petitioner was denied effective assistance of appellate counsel when counsel failed to assign as error a Brady violation occurring prior to the suppression hearing.
Claim Eight: Petitioner was denied effective assistance of appellate counsel when counsel failed to assign as error the failure of the trial court to order a competency hearing.
Claim Nine: Petitioner was denied effective assistance of appellate counsel when counsel failed to research, brief and argue insufficiency of evidence.

Filing no. 3.

         The Trial Proceedings

         The evidence against Petitioner adduced at his bench trial was overwhelming. While lengthy, it is best to quote the Nebraska Court of Appeals to get a full and particularized understanding of this matter.

         The Court of Appeals wrote:

On January 19, the Omaha Police Department received a call from J.R., Ueding-Nickel's girlfriend at the time, reporting that she had found naked pictures of her 11-year-old daughter on Ueding-Nickel's phone.
Officers were dispatched to the residence J.R. and Ueding-Nickel shared to investigate the reports of sexual assault on the child, O.R. J.R. reported that after the photographs were discovered, Ueding-Nickel and J.R. were involved in a domestic disturbance, and both Ueding-Nickel and the child fled, on foot, from the home. Ueding-Nickel was arrested at approximately 2 a.m. at a convenience store and was taken to police headquarters and placed in an interview room at approximately 2:30 a.m. The video[1] provided shows that Ueding-Nickel remained alone until Sergeant Lance Worley of the Omaha Police Department arrived for an interview at approximately 5:23 a.m.
During the period between 2:30 and 5:23 a.m., Ueding-Nickel interacted with several police officers who conducted a search of his person. He was compliant and followed the officers' directions during the search, and left the interview room to use the restroom without incident. Ueding-Nickel changed positions several times in his seat, appearing, at one point, to fall asleep. Eventually he got out of his seat and lay down on the floor. When Worley entered, he observed Ueding-Nickel asleep on the floor. He asked Ueding-Nickel to get up and sit in the chair by the table, and Ueding-Nickel complied. Worley informed Ueding-Nickel of the investigation and the purpose for the interview. Worley advised Ueding-Nickel of his Miranda rights, and Ueding-Nickel verbally responded that he understood his rights, verbally agreed to speak with Worley, and provided background information regarding his educational background, employment history, and past and current residences.
Worley asked Ueding-Nickel if he was under the influence of drugs or alcohol, a standard question Worley asks before conducting an interview. Ueding-Nickel claimed that he had consumed five beers and 12 shots the day before. Worley noted that Ueding-Nickel did not appear to be intoxicated; he responded to the questions appropriately and quickly without hesitation, he did not appear to misunderstand the questions, and he was easy to converse with. Worley asked Ueding-Nickel if he felt clear-headed and able to answer his questions and Ueding-Nickel said yes, and stated that he was fine.
Ueding-Nickel told Worley that he and J.R. had been in a relationship for about five years, and they had differing work schedules, which meant he was often at home alone with O.R. He indicated that his relationship with O.R. had grown, and he began substituting O.R. for J.R. and they developed a sexual relationship. Ueding-Nickel indicated that the relationship with O.R. began when she was 10 or 11 years old, and that it had been going on for 13 to 14 months. He stated that it began with kissing on the mouth and progressed to back rubs and tickling.
Ueding-Nickel indicated that the week prior to the interview was the first and only time that he had penetrated her vagina with his penis. He stated that O.R. had performed oral sex on him approximately three times, and that he had performed oral sex on O.R. approximately a dozen times. He indicated he had encounters with O.R. roughly once per week, sometimes more, and sometimes less. He stated that he had not threatened or bribed O.R. to get her to participate in the encounters, and that the encounters took place both when he was sober, and when he was intoxicated. Ueding-Nickel stated that he knew treating O.R. “like she was [his] girlfriend” was wrong, but that he intended for the relationship to continue until O.R. was older. He estimated that he had more than 100 encounters with O.R. over the 13 or 14 month period from the time the contact began, until the night he was arrested.
Ueding-Nickel stated that the photos of O.R., discovered on his phone by J.R., were taken with the camera on his phone the previous weekend. He had taken four pictures; one of O.R.'s vagina, one of O.R.'s “boobs, ” one of O.R. “sucking [his] wiener, ” and one picture of his “wiener next to her vagina.” Ueding-Nickel stated that he took the photos on a whim, and knew it was risky if he got caught. He also expressed surprise that O.R. had participated and allowed him to take the photos.
Ueding-Nickel told Worley that he was not sure how J.R. found the photos. He said he had been sleeping in the basement when he was awakened by loud yelling and heard J.R. tell O.R. to get dressed and get in the car. He said he found J.R. locked in her vehicle, so he smashed the driver's side window with a brick and took his phone from her hand. He said he threw the phone to the ground, used a landscaping brick to smash it, and then threw it as hard as he could toward the barrier wall near Interstate 80. He stated that he left the home on foot, walked someplace where he could buy and drink a beer and a shot, then turned himself in to police officers at a convenience store.
Ueding-Nickel's attorney[2] filed a motion to suppress on May 7, 2014, seeking to suppress any and all statements he made to Omaha Police officers on or about January 20, 2014. Specifically, he sought to suppress the statements he made to Worley, while in the custody of the police department. He asserted the statements were not knowingly, understandingly, and intelligently made, they were not freely and voluntarily given, and they were made without a “proper knowing, understanding, and intelligent waiver of her [sic] rights against compulsory self-incrimination or his right to counsel.” He asserted the statements were a result of words or actions that the police should have known were likely to elicit an incriminatory response, and they were the product of “threats, coercion, deception, and/or inducements by members of the Omaha Police Department.” He further asserted the statements were the fruit of a custodial interrogation, and of an unlawful arrest “made without warrant or probable cause to believe the Defendant had committed a criminal offense.”
Ueding-Nickel's motion was heard before the district court on July 18, 2014. Worley testified at the suppression hearing, and a DVD recording of the interview was entered into evidence. Worley testified that he had been in law enforcement for over 25 years and that, during that time, he had significant experience with DUI investigations, had been a DUI instructor for approximately 2 years, and he had experience evaluating levels of intoxication. Based on his experience, and Ueding-Nickel's behavior, Worley was of the opinion that Ueding-Nickel was not under the influence of drugs or alcohol at the time of the interview. Worley testified that he did not think a breath test was necessary, and that Ueding-Nickel's behavior did not match that of someone who had consumed five beers and 12 shots. Worley testified that he did not have any concerns regarding Ueding-Nickel's mental health, and Ueding-Nickel did not make any statements regarding mental health.
The court found no evidence that Ueding-Nickel was intoxicated, or that his statements were not freely and voluntarily given, or the result of improper or undue influence by Officer Worley. The court found there was no evidence that Ueding-Nickel's arrest was unlawful, and the court denied the motion to suppress his statement.
Following a stipulated bench trial, the court found the State proved Ueding-Nickel guilty, beyond a reasonable doubt, of the charge of first degree sexual assault of a child. The court specifically found that “the defendant did in fact engage in sexual penetration, digital and penile penetration into the vagina and the mouth of the victim in this case” during the time charged in the second amended information while the victim was under the age of 12, and Ueding-Nickel was 19 years of age or older. The court found Ueding-Nickel's statement was voluntary, and there was no evidence of intoxication.
The court ordered a presentence investigation and Ueding-Nickel appeared for sentencing on February 10, 2015. The court considered the length of time that Ueding-Nickel participated in sexual contact with the victim, the number of sexual contacts, the age of the victim, and Ueding-Nickel's refusal to accept responsibility for what he had done into account in determining his sentence. The court also considered Ueding-Nickel's history of alcohol use and his diagnosed mental disorders. Ultimately, the court sentenced ...

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