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Smith v. Frakes

United States District Court, D. Nebraska

January 9, 2020

REGINALD SMITH, Petitioner,
v.
SCOTT R. FRAKES, Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         This matter is before the court on Reginald Smith's (“Petitioner” or “Smith”) 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. 4), Smith asserted the following claims that were potentially cognizable in this court:

Claim One: Petitioner was denied effective assistance of counsel because trial counsel (1) presented no evidence, (2) did not call important witnesses who were at the scene to testify about what they observed, and (3) did not allow Petitioner to testify as to the issue of self defense.
Claim Two: Petitioner was denied his constitutional right to a fair trial because the trial court erred by not granting Petitioner's motions for mistrial and by not granting a mistrial after the second time the jury informed the trial court it could not reach a verdict.
Claim Three: The trial court erred in allowing into evidence Exhibits 4, 5, 6, and 7 to enhance Petitioner's sentence.
Claim Four: There was insufficient evidence as a matter of law to sustain Petitioner's conviction.

(Filing No. 4 at CM/ECF pp. 1-2 (formatting alterations to original).)

         II. BACKGROUND

         A. Conviction and Sentence

         The court states the facts as they were recited by the Nebraska Court of Appeals in State v. Smith, No. A-17-243, 2017 WL 8724084 (Neb. Ct. App. Nov. 28, 2017) (filing no. 7-3). 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).

         On July 28, 2016, officers-including City of Scottsbluff Police Officers Matthew Broderick and Michael Modec-responded to a call to investigate a report that Smith had threatened another man with a knife. The officers arrived at Smith's residence and knocked on his door without announcing that they were law enforcement. Smith opened the door holding a machete-like object in a threatening manner. The officers told Smith to drop the machete, and Smith complied stating he “thought it was the other dude coming for him.” The officers took Smith into custody and locked his apartment door without taking the machete into evidence.

         Smith was charged under Neb. Rev. Stat. § 28-1206 (Reissue 2016) with being a prohibited person in possession of a deadly weapon. During the jury trial, testimony was received from Officers Broderick and Modec concerning why they went to Smith's residence, what they observed at Smith's residence, how Smith responded to the officers when he answered his door, and what was found in a subsequent search of Smith's home. Officer Broderick's body camera footage of the investigation at Smith's residence was also received in support of the officers' testimonies. During deliberations, the jury twice indicated that it was likely deadlocked and the district court asked them to take additional time to consider whether further review of the evidence would aid them in reaching a verdict. During such review following the second such indication of deadlock, the jury reached a guilty verdict.

         Following the jury verdict, an enhancement hearing was held. The State offered into evidence exhibits 4 through 7. Exhibit 4 is a certified copy of court records from the Superior Court of California, County of Los Angeles, People of the State of California v. Reginald Smith, case No. GA005357; Exhibit 5 is a certified copy of court records from the Superior Court of California, County of Los Angeles, People of the State of California v. Reginald Smith, case No. GA006199; Exhibit 6 is also a copy of court records from the Superior Court of California, County of Los Angeles, People of the State of California v. Reginald Smith, case No. GA006199; and Exhibit 7 is a certified copy of court records from the Superior Court of California, County of Los Angeles, People of the State of California v. Reginald Smith, case No. BA132150.

         After these exhibits were offered, Smith objected to them stating:

I would object to all exhibits on the basis of hearsay, relevance and foundation. And specifically, Your Honor, I would note that in all these exhibits there are corrections that have been made by the court, I see a number of nunc pro tunc entries that explain what changes were made although the changes that were made are not very well described, I really don't understand what changes regarding terms are concerned, for these reasons I would object to Exhibit 4, 5, 6 and 7.

         After receiving confirmation that the exhibits were certified copies, the district court overruled Smith's objections and received the exhibits into evidence explaining: “I think some of the issues raised by [Smith's counsel] really go more to weight than they do to admissibility.” The district court subsequently determined Smith was a habitual offender under Neb. Rev. Stat. § 29-2221 (Reissue 2016). Based on this finding, the district court sentenced Smith to 10 to 10 years' imprisonment with credit for time served.

         B. Direct Appeal

         Smith appealed his conviction and sentence to the Nebraska Court of Appeals. (Filing No. 7-1; Filing No. 7-3.) Smith was represented by different counsel on appeal than at trial. (Filing No. 7-1 at CM/ECF p. 2.) Smith argued that trial counsel was ineffective in not presenting further evidence to support his defense by failing to call witnesses on his behalf, including Teresa Lucius, Sue Caldwell, and Roberta Valdez to testify about their observations during the altercation and not allowing him to testify concerning a possible self-defense claim. (Filing No. 7-4 at CM/ECF pp. 6, 13-14.) Smith also argued that the trial court erred in (1) failing to sustain his motions for mistrial after an argument by the State during opening statements and after Officer Modec's testimony, and in failing to unilaterally order a mistrial after the second time the jury indicated it could not reach a verdict; and (2) admitting Exhibits 4 through 7 as evidence of his prior convictions at his enhancement hearing over his objections. (Filing No. 7-4 at CM/ECF pp. 6, 14-17.) Last, Smith asserted that there was insufficient evidence to support the jury's guilty verdict. (Filing No. 7-4 at CM/ECF pp. 6, 17-22.)

         In a memorandum opinion dated November 28, 2017, the Nebraska Court of Appeals affirmed Smith's conviction and sentence. (Filing No. 7-3.) The court determined that the record was insufficient to review his claims of ineffective assistance of trial counsel and rejected his remaining claims on the merits. (Filing No. 7-3 at CM/ECF pp. 4-17.) Smith filed a petition for further review with the Nebraska Supreme Court, raising the same claims as in the Nebraska Court of Appeals. (Filing No. 7-6.) The Nebraska Supreme Court denied Smith's petition for further review on February 1, 2018. (Filing No. 7-1 at CM/ECF p. 3.)

         C. Postconviction Action

         Smith filed a pro se motion for postconviction relief on July 5, 2018, challenging his habitual criminal enhancement. (Filing No. 7-9 at CM/ECF pp. 2-5.) In a written order dated August 27, 2018, the state district court denied postconviction relief without an evidentiary hearing. (Filing No. 7-9 at CM/ECF pp. 29-30.) The court noted that the arguments concerning the admissibility of Exhibits 4-7 were raised and rejected on direct appeal and that Smith's habitual criminal finding was affirmed. (Filing No. 7-9 at CM/ECF p. 30.) Additionally, the court found that the “allegations as alleged in the motion for post conviction relief could have been litigated on direct review during the appeal” but were not. (Filing No. 7-9 at CM/ECF p. 30.)

         On October 3, 2018, Smith appealed the denial of postconviction relief to the Nebraska Court of Appeals. (Filing No. 7-2 at CM/ECF p. 2.) On October 24, 2018, the Nebraska Court of Appeals dismissed the appeal as untimely pursuant to Neb. Ct. R. App. P. § 2-107(A)(2). (Filing No. 7-2 at CM/ECF p. 2.) On November 7, 2018, Smith filed a motion for rehearing, which the Nebraska Court of Appeals denied as untimely pursuant to Neb. Ct. R. App. P. § 2-113. (Filing No. 7-2 at CM/ECF p. 2.) The mandate issued on January 8, 2019. (Filing No. 7-2 at CM/ECF p. 2.)

         D. Habeas Petition

         Smith timely filed his Petition in this court on February 19, 2019. (Filing No. 1.) In response to the Petition, Respondent filed an Answer (filing no. 8), a Brief (filing no. 10), and the relevant state court records (filing no. 7). Respondent argues that Smith's claims are either procedurally defaulted, not cognizable in federal habeas proceedings, or without merit. (Filing No. 10 at CM/ECF p. 4.) Smith 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 Smith did not file a response brief. (Filing No. 11.) This matter is now fully submitted for disposition.

         III. OVERVIEW OF APPLICABLE LAW

         A couple strands of federal habeas law intertwine in this case. They are (1) exhaustion and procedural default and (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. The court elaborates upon those concepts next so that it may apply them later in a summary fashion as it reviews Smith'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 ...

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