Campbell v. Frakes

DANIEL J. CAMPBELL, Petitioner, v. SCOTT R. FRAKES, Respondent.

8:20CV92

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

March 8, 2021

MEMORANDUM AND ORDER

This matter is before the court on Daniel J. Campbell's ("Petitioner" or "Campbell") Petition for Writ of Habeas Corpus. (Filing 1.) For the reasons that follow, Petitioner's habeas petition is denied and dismissed with prejudice.

I. CLAIMS

Summarized and condensed,¹ and as set forth in the court's initial review order (filing 3), Campbell asserted the following claims that were potentially cognizable in this court:

Claim One: Petitioner received ineffective assistance of counsel because counsel (1) failed to argue Petitioner's motions for new trial or withdraw and allow Petitioner to argue the motions himself; (2) continued to represent Petitioner through the appeal despite obvious dissatisfaction with his performance; (3) failed to properly investigate and challenge the production of the weapon found months after the incident; (4) failed to challenge and properlycross-examine and impeach the State's witness, Marissa McCormack; (5) failed to seek independent testing of the firearm alleged to have been used in the incident; (6) failed to depose one of the State's witnesses, Christian Sipherd, and present to him a lineup to show that no identification of Petitioner could be made; (7) failed to challenge and seek evaluation of McCormack's competency; (8) failed to object to testimony regarding Petitioner's possession of the same or a similar shotgun days before the incident; (9) failed to challenge discussion between two witnesses in close proximity to one of the jurors as violating the sequestration order and denying Petitioner a fair trial; (10) failed to challenge certain jury instructions as incomplete; (11) failed to seek an independent evaluation of DNA evidence to show it as inconclusive; (12) failed to have the gunshot residue testing that was done processed; and (13) failed to sequester the jury in light of the recent shooting of an Omaha police officer.

Claim Two: Petitioner was denied his right to a fair trial because of jury misconduct where two of the State's witnesses discussed the case in detail outside of the courtroom while a jury member listened in and admitted to asking a question.

Claim Three: Petitioner was denied his right to a fair trial because the jury instruction on the charge of discharging a firearm while in or in proximity of any motor vehicle at any person or occupied motor vehicle improperly excluded the term "recklessly."

II. BACKGROUND

A. Convictions and Sentences

The court states the facts as they were recited by the Nebraska Court of Appeals on direct appeal in State v. Campbell, No. A-16-176, 2016 WL 6872979 (Neb. Ct. App. Nov. 22, 2016) (filing 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 September 21, 2015, an amended information was filed charging Campbell with two counts of Attempted Assault on an Officer in the First Degree, one count of Discharging a Firearm While In or In Proximity of any Motor Vehicle at any Person or Occupied Motor Vehicle, three counts of Use of a Deadly Weapon to Commit a Felony, and one count of Possession of a Deadly Weapon by a Prohibited Person.

A jury trial took place from November 2 to November 5, 2015. Nebraska State Patrol Trooper Steven Peck testified that he was working the night of February 4, 2015, with his partner Trooper Andrew Phillips. They were assigned to a section of Interstate 80. Peck described the weather conditions at the time as extremely cold with snow on the roads. Peck stated that Phillips was driving the patrol cruiser and made a decision to pull a vehicle over for a rear light violation. Peck testified that they activated the overhead lights on the cruiser and that he observed the vehicle going back and forth from the shoulder of the road several times. He also testified that the vehicle signaled a right lane change indicating it was going to pull over onto the shoulder of the road but did not do so.

Peck testified that while he and Phillips were pursuing the vehicle, he observed the front seat passenger look back at the troopers and determined that the passenger appeared to be a white male with short hair wearing a dark-colored jacket. The vehicle exited the Interstate onto Center Street eastbound and continued to theintersection of 108th Street where the vehicle turned south. Peck testified that as he was reaching for the microphone in the cruiser to call in a pursuit, he heard a loud sound and looked up to see the passenger of the vehicle hanging out of the passenger side of the vehicle with a shotgun. The passenger fired a second shot, hitting the windshield of the cruiser and leaving a hole right in front of where Peck was sitting. After the two shots were fired, Phillips stopped the cruiser, at which time the troopers confirmed neither of them were injured and they relayed information to other officers. The troopers lost view of the suspect vehicle at that time. Peck testified that he was unable to get a specific facial description of the shooting suspect from either his direct observation or his review of the cruiser video.

Peck testified that he and Phillips began following the vehicle about 12:05 a.m. and followed the vehicle for three to five minutes before the shots were fired. He testified the call to other officers that shots had been fired was logged at 12:09 a.m. The type of shooting reported was a sawed-off shotgun.

Phillips confirmed that he was working alongside Peck on February 4 and into February 5, 2015, when they attempted to pull over a vehicle for a broken taillight. Phillips testified that during the pursuit of the vehicle, he turned on a spotlight to illuminate the vehicle. He could see a front passenger in the vehicle who appeared to be male and was looking back at the officers.

Phillips testified that suddenly he noticed the passenger reach out the window and fire shots at them. He observed the passenger to be either a white male or a light-skinned Hispanic male with short dark hair, as well as a dark jacket. He also saw that the gun was a sawed-off shotgun. Phillips heard two shots, and the second shot hit the windshield of the cruiser. After Phillips stopped the cruiser, he observed two holes in the windshield, a dent on the hood, and a broken spotlight.

Nebraska State Patrol Trooper Todd Steckelberg testified that he received a dispatch call shortly after midnight on February 5, 2015, indicating that shots had been fired at two officers. Steckelberg directed law enforcement agencies in the areato set up a perimeter in the area of the shooting. Steckelberg testified that he became aware of a subsequent call from Trooper Trinity Jones, who requested assistance in making a traffic stop on a vehicle matching the suspect vehicle, and he responded. Jones testified that the initial dispatch call regarding the shooting came out at 12:05 a.m. and that he observed the suspect vehicle at 12:09 a.m.

When Steckelberg arrived on scene, Jones informed him that only one individual was observed in the vehicle. They took the female driver, Marissa McCormack, into custody and then confirmed there were no other occupants in the vehicle. Steckelberg testified that he established the location of the perimeter based on McCormack's statement that she dropped off a male passenger on a side street and on his review of the video recording of the shooting from the cruiser's camera.

Steckelberg testified that around 1:40 a.m., Campbell was found hiding in a vehicle parked on a street. No weapon was recovered at that time.

Christian Sipherd testified that on the night of February 4, 2015, he was removing snow from the parking lot of a shopping area near 108th and Center in Omaha. He could see police cars with their lights flashing across the street from where he was, blocking the off ramp from the Interstate onto Center Street and on 108th Street and Center. He testified that he observed someone running through the parking lot heading north. The individual then disappeared from his sight. A few minutes later, he saw the same individual approaching his vehicle, waving a cell phone, trying to get Sipherd's attention. Sipherd testified that the situation "didn't feel right" so he left the area. He testified that the individual headed towards the south, into a residential neighborhood. Sipherd estimated that less than five minutes elapsed between the first and second time he saw the individual. Sipherd described the individual as a Latino male, wearing a black "hoody" or jacket. Sipherd was unable to identify Campbell at trial as the individual he observed that evening.

State Patrol Trooper Jason Prante testified that an individual who lived in the area where the officers were searching advised officers of footprints in the snow inhis yard that did not exist when he went to bed. Prante and Trooper John Mobley began searching in the neighborhood where the footprints were found, and they observed the same footprints in several different areas. Prante described the footprints as being made by a sneaker with a zig-zag or lightning strike pattern horizontal across the bottom of the shoe. Prante testified that there was no other foot traffic from civilians in the area being searched. The only other footprints were made by the boots of officers doing the search.

After following the footprints in the neighborhood, the prints ended at the street in front of a residence. Mobley suggested that they search the vehicles parked on the street. Upon doing so, Prante and Mobley discovered Campbell lying down in the backseat of a car.

After placing Campbell into custody, Prante and Mobley searched the vehicle where Campbell had been hiding. There were no weapons found during the search. Prante testified that Campbell's shoes appeared to have the same print as the footprints...