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Parnell v. Frakes

United States District Court, D. Nebraska

December 19, 2019

KEINALD V. PARNELL, Petitioner,
v.
SCOTT R. FRAKES, Respondent.

          MEMORANDUM AND ORDER

         This matter is before the court on Keinald V. Parnell's (“Petitioner” or “Parnell”) Petition for Writ of Habeas Corpus. (Filing No. 1.) 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 initial review order (filing no. 6), Parnell asserted the following claims that were potentially cognizable in this court:

Claim One: Petitioner's convictions for false imprisonment and terroristic threats are unconstitutional because there is insufficient evidence to support the convictions.
Claim Two: Petitioner was denied effective assistance of counsel because trial counsel (1) waived Petitioner's right to be present at arraignment without consulting Petitioner; (2) failed to file a motion to quash or dismiss the charges against Petitioner because Petitioner was charged and held for eight months under an incorrect name; (3) failed to assert Petitioner's speedy trial rights; (4) failed to file any motion regarding the trial court judge holding a second preliminary hearing; (5) failed to challenge the admission of the “altered” knife evidence; (6) failed to move to suppress the gun found eleven days after Petitioner was in jail; (7) failed to investigate and subpoena phone records and text messages to prove collusion between the victim and his mother; and (8) failed to call Officer Passo and Officer Joe Choquette to testify at trial.
Claim Three: Petitioner was denied effective assistance of counsel because appellate counsel (1) failed to consult or communicate with Petitioner regarding his appeal and (2) failed to raise on appeal (a) “the confrontation clause pertaining to . . . OFFICER ANDREW PASSO” (filing no. 1 at CM/ECF pp. 14-15); (b) judicial misconduct because the trial court judge held a second preliminary hearing to add three weapons charges; (c) prosecutorial misconduct because the State allowed evidence planted by the victim, failed to call key witnesses, and used perjured testimony; (d) the fact that Petitioner was incarcerated for eight months prior to trial under his son's name; (e) that Officer Choquette was never called to testify; (f) error in admission of the gun evidence because Petitioner did not live or ever reside where the weapon was found; and (g) error in jury instructions No. 4 and No. 7 (see Id. at CM/ECF pp. 18, 54-55).
Claim Four: Petitioner's convictions were obtained through prosecutorial misconduct because the State (1) failed to call Officer Andrew Passo who was the first responding officer; (2) allowed planted evidence to be presented against Petitioner; (3) failed to do anything to rectify the victim's perjured testimony; and (4) failed to call Officer Choquette regarding D.N.A. evidence.

(Filing No. 6 at CM/ECF pp. 1-2 (alterations to original).)[1]

         II. BACKGROUND

         A. Convictions and Sentences

         The court states the facts as they were recited by the Nebraska Court of Appeals in State v. Parnell, No. A-16-354, 2016 WL 7209829 (Neb. Ct. App. Dec. 13, 2016) (filing no. 10-3). 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).

         Parnell was charged with burglary, terroristic threats, first degree false imprisonment, two counts of use of a firearm to commit a felony, possession of a firearm by a prohibited person, and misdemeanor violation of a protection order. The State also alleged that Parnell was a habitual criminal. Parnell pled guilty to the violation of a protection order and proceeded to trial on the remaining six charges.

         The evidence at trial showed that in the early morning hours of May 9, 2015, Parnell entered the house of his ex-girlfriend, Randie Frederick. Randie was not home, but her adult son, Dominic Frederick, was asleep in the living room. Dominic's two children, who also lived in the house, were not at home that night. Parnell brandished a knife and, Dominic later claimed, a gun, and forced Dominic to remain in the living room of the house until the morning hours. In the morning, Dominic's uncle came by the house after receiving no answer to phone calls to Dominic's cellphone. The uncle saw Dominic sitting on a couch inside the house and saw another figure in the house, but left without speaking to Dominic. Shortly thereafter, the Fredericks' next door neighbor saw a broken window on the Fredericks' house and called the police. Following the police's arrival, Dominic was able to safely exit the house and an hours-long standoff between Parnell and police ensued. Parnell was eventually apprehended in the attic of the house and arrested.

         On the day of Parnell's arrest, police collected a knife and a glove from the Fredericks' home. Two days later, Dominic summoned the police back to his house to retrieve a second knife he claimed to have found in the attic. Eleven days later, police returned to the house with special equipment and located a gun in the basement drywall.

         The jury found Parnell guilty of burglary, false imprisonment, and terroristic threats, and acquitted him of the three firearms charges.

         The court ordered a presentence investigation and conducted an enhancement hearing. The court found Parnell to be a habitual criminal and sentenced him to 30 to 30 years for burglary, 30 to 30 years for terroristic threats, 30 to 30 years for false imprisonment, and one year for violation of a protection order. The court ordered that all four sentences be served concurrently and awarded Parnell credit for 327 days served.

         B. Direct Appeal

         Parnell appealed his convictions and sentences to the Nebraska Court of Appeals. (Filing No. 10-1.) Parnell was represented both at trial and on direct appeal by the same attorney. Parnell argued that there was insufficient evidence to support his convictions for burglary, terroristic threats, and false imprisonment. (Filing No. 10-6 at CM/ECF p. 10.) He also alleged that he received excessive sentences for these three convictions. (Filing No. 10-6 at CM/ECF p. 10.)

         In a memorandum web opinion dated December 13, 2016, the Nebraska Court of Appeals affirmed Parnell's convictions and sentences, rejecting his claims on the merits. (Filing No. 10-3.) Parnell filed a petition for further review with the Nebraska Supreme Court. (Filing No. 10-10.) Parnell raised several claims, including, as relevant here, that there was insufficient evidence to support his convictions for burglary, terroristic threats, and false imprisonment (Filing No. 10-10 at CM/ECF pp. 3, 5-6.) The Nebraska Supreme Court denied Parnell's petition for further review on February 14, 2017. (Filing No. 10-1 at CM/ECF p. 4.)

         C. Postconviction Action

         Parnell filed a pro se verified motion for postconviction relief on June 8, 2017. (Filing No. 15-2 at CM/ECF pp. 2-22.) Parnell alleged various claims of ineffective assistance of trial counsel, ineffective assistance of appellate counsel, prosecutorial misconduct, trial court error, and actual innocence. (Filing No. 15-2 at CM/ECF pp. 3-21.) In a written order, the state district court denied postconviction relief without an evidentiary hearing. (Filing No. 15-2 at CM/ECF pp. 53-62.)

         Parnell appealed to the Nebraska Court of Appeals, arguing that the state district court erred in failing to (1) conduct an evidentiary hearing on the allegations contained in his motion for postconviction relief, (2) address “the Confrontation Clause, Compulsory process and the Fourth Amendment, ” (3) address “the constitution [sic] right to a [s]peed[y] [t]rial violation in violation to due [p]rocess, ” (4) hold an evidentiary hearing on his claim that his counsel was ineffective because she had a conflict of interest, and (5) hold an evidentiary hearing on his claims of actual innocence, ineffective assistance of trial counsel, ineffective assistance of appellate counsel, prosecutorial misconduct, and misconduct by the trial judge. (Filing No. 10-11 at CM/ECF pp. 2-3.)

         The Nebraska Court of Appeals affirmed the judgment of the district court in a memorandum web opinion dated October 16, 2018. (Filing No. 10-4.) The court rejected on the merits Parnell's claims that trial counsel was ineffective for failing (1) to call Anthony Warner, Danny Barfield, Lisa Estrada, and Officer Andrew Passo; (2) “to even object to the illegal search and to move to suppress the knife that was found by the victim . . . in the attic”; and (3) to properly protect his speedy trial rights. (Filing No. 10-4 at CM/ECF pp. 5-6, 7, 8-10.) The court did not reach the merits of the remainder of the ineffective assistance of counsel claims because Parnell either (1) did not specifically assign and argue the claims on appeal, (2) did not raise the claims in the postconviction motion, or (3) alleged only conclusions of fact and law in his postconviction motion which did not warrant an evidentiary hearing under state law. (Filing No. 10-4 at CM/ECF pp. 4-5, 6, 7, 10-12.) The court concluded that Parnell's claims of prosecutorial misconduct and trial judge misconduct were procedurally barred because they could have been brought on direct appeal. (Filing No. 10-4 at CM/ECF p. 12.) The court also rejected Parnell's claim that he was prejudiced by an error in jury Instructions Nos. 4 and 7 regarding use of a deadly weapon (firearm) to commit a felony. (Filing No. 10-4 at CM/ECF pp. 12-13.) In addition, the court found that Parnell's insufficiency of the evidence argument was procedurally barred as that claim was rejected on direct appeal. (Filing No. 10-4 at CM/ECF p. 13.) Finally, the court concluded that Parnell did not meet “the extraordinarily high threshold of alleging facts sufficient to show his actual innocence.” (Filing No. 10-4 at CM/ECF p. 13.)

         Parnell filed a petition for further review with the Nebraska Supreme Court. (Filing No. 10-13.) Parnell raised the following claims: (1) trial counsel was ineffective for failing to call Anthony Warner, Danny Barfield, Lisa Estrada, Officer Andrew Passo, and Joe Choquette; (2) trial counsel was ineffective for failing to file a motion to suppress the weapons found at the victim's residence, arguing that the State could not prove possession of a firearm because he did not live there; and (3) he is actually innocent. (Filing No. 10-13 at CM/ECF pp. 3-6.) The Nebraska Supreme Court denied Parnell's petition for further review and issued its mandate on December 21, 2018. (Filing No. 10-2 at CM/ECF p. 4.)

         D. Habeas Petition

         Parnell timely filed his Petition in this court on January 24, 2019. (Filing No. 1.) In response to the Petition, Respondent filed an Answer (filing no. 17), a Brief (filing no. 18), and the relevant state court records (filing no. 10; filing no. 15). Respondent argues that Parnell's claims are either procedurally defaulted or without merit. Parnell did not file a brief in response to Respondent's Answer and Brief. Respondent filed a Notice of Submission indicating that he would not be filing a reply brief as Parnell did not file a response brief. (Filing No. 19.) This matter is now 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 Parnell'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 to the trial court, and then in an appeal to either the Nebraska Supreme Court directly[2] or 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 ...


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