Cook v. Hansen

RICHARD K. COOK, Petitioner, v. BRAD HANSEN, Warden - TSCI; SCOTT FRAKES, Director - Nebraska;and DEPARTMENT OF CORRECTIONAL SERVICES, Respondents.

8:18CV332

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

May 18, 2020

MEMORANDUM AND ORDER

This matter is before the court on Petitioner Richard K. Cook's ("Petitioner" or "Cook") 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,¹ and as set forth in the court's prior progression order (filing no. 10), Petitioner asserted the following claims² that were potentially cognizable in this court:

Claim One: Petitioner was denied effective assistance of counsel because trial counsel (1) failed to investigate DNA evidence by not hiring a DNA expert and failing to file a"Motion to Produce all Physical Evidence and DNA Material for Independent Testing" (filing no. 1 at CM/ECF pp. 25-27); (2) failed to motion the court for a continuance in order to further investigate Mike Hornbacher ("Hornbacher") after mixed DNA results were obtained from Hornbacher's DNA testing (id. at CM/ECF p. 25); (3) failed to object to the "lack of probable cause" testimony from Nebraska State Patrol ("NSP") Inv. Charlie O'Callahan (id. at CM/ECF pp. 25, 36); (4) failed to investigate and pursue evidence against Hornbacher prior to trial (id. at CM/ECF pp. 31, 36-37); (5) failed to move for a mistrial based on law enforcement's improper seizure and transportation of Petitioner from Iowa to Nebraska at time of his arrest (id. at CM/ECF p. 34); (6) failed to investigate or inform the trial court and prosecution that Douglas County Sheriff Captain Dan McGovern had discussed evidence from Petitioner's case in a class he taught at Iowa Western Community College (id. at CM/ECF p. 38); (7) failed to request a mistrial or removal of Prosecutor Leigh Ann Retelsdorf ("Retelsdorf") due to Retelsdorf's conflict of interest (id. at CM/ECF pp. 41-42); (8) failed to object and/or move for a mistrial as to the prosecution's use of Petitioner's invocation of his rights to remain silent and to counsel after his arrest and to testify on his own behalf in violation of the Fifth, Sixth, and Fourteenth Amendments (id. at CM/ECF p. 43); (9) failed to object and/or move for a mistrial as to Retelsdorf's misconduct in misrepresenting the DNA evidence and calling Petitioner a "rapist" and "manipulator" (id. at CM/ECF pp. 44, 67); (10) failed to prepare adequately for the Rape Shield Law hearing (id. at CM/ECF pp. 45, 68); (11) utilized and failed to object or move for mistrial as to untried, uncharged "prior bad acts" evidence (id. at CM/ECF pp. 47-49); (12) failed to effectively utilize investigative tools at counsel's disposal, such as a private investigator, and obtain missing evidence critical to the defense (id. at CM/ECF p. 52); (13) failed to object or move for a mistrial as to the following instances of prosecutorial misconduct: Retelsdorf vouching forwitness Hornbacher's credibility through a leading question, Retelsdorf eliciting testimony from Jeanette Cook that was contrary to the evidence, and the prosecution misstating Petitioner's testimony, the ballistic evidence, evidence regarding injuries to Hornbacher, and improperly instructing the jury on the law during closing arguments (id. at CM/ECF pp. 56-57, 74); (14) failed to make an offer of proof regarding Petitioner's excluded testimony about conversations he had with Hornbacher (id. at CM/ECF p. 60); (15) had Petitioner remove his suit jacket, show the shock belt restraint system to the jury, and explain how it worked when Petitioner took the stand to testify in his own defense (id. at CM/ECF p. 64); (16) withdrew from Petitioner's case after trial on the outright lie that counsel "was retiring from the practice of law" (id. at CM/ECF p. 66); (17) failed to show the jury an exhibit called "23 Reasons for Reasonable Doubt" that counsel had agreed with Petitioner to show during closing arguments (id. at CM/ECF p. 66); (18) failed to call multiple defense witnesses or the customer service representative that Hornbacher had lied to about his phone being stolen (id. at CM/ECF p. 66); (19) operated under conflicts of interest due to his prior representation of Janelle Elster, Petitioner's former girlfriend, and his connections to Douglas County Sheriff's Office Crime Scene Investigator Commander David Koefed ("Koefed") and the Douglas County Sheriff's Office (id. at CM/ECF pp. 25, 66); (20) refused Petitioner's request to play a videotape of Hornbacher giving a videotaped statement to NSP investigators (id. at CM/ECF p. 67); (21) stood silent and failed to object during the death penalty hearing when prosecutors did not stand silent (id. at CM/ECF p. 67); and (22) failed to request proper jury instructions (id. at CM/ECF pp. 71-74).

Claim Two: Petitioner was denied effective assistance of counsel because appellate counsel failed to raise on direct appeal (1) Kofoed planted evidence used at Petitioner's trial and Petitioner's concerns that Kofoed lied on the stand (id. atCM/ECF p. 25); (2) law enforcement's improper seizure and transportation of Petitioner from Iowa to Nebraska at time of his arrest (id. at CM/ECF p. 34); (3) Douglas County Sheriff Captain Dan McGovern's misconduct in discussing evidence from Petitioner's case in a class he taught at Iowa Western Community College (id. at CM/ECF p. 38); (4) trial counsel's failure to seek a mistrial or removal of Retelsdorf due to her conflict of interest (id. at CM/ECF pp. 41-42); (5) prosecution's use of Petitioner's invocation of his rights to remain silent and to counsel after his arrest and to testify on his own behalf in violation of the Fifth, Sixth, and Fourteenth Amendments (id. at CM/ECF p. 43); (6) Retelsdorf's misconduct in misrepresenting the DNA evidence and calling Petitioner a "rapist" and "manipulator" (id. at CM/ECF p. 44); (7) all instances of improper use of untried, uncharged "prior bad acts" evidence (id. at CM/ECF pp. 47-49); (8) prosecution's and law enforcement's failure to turn over all evidence in the case to the defense in violation of Brady v. Maryland (id. at CM/ECF p. 52); (9) prosecution and trial judge knowingly permitted and encouraged Hornbacher to commit perjury during his trial testimony in violation of Petitioner's rights under the Fifth, Sixth, and Fourteenth Amendments (id. at CM/ECF p. 54); (10) trial counsel's failure to object or move for a mistrial as to the following instances of prosecutorial misconduct: Retelsdorf vouching for witness Hornbacher's credibility through a leading question, Retelsdorf eliciting testimony from Jeanette Cook that was contrary to the evidence, and the prosecution misstating Petitioner's testimony, the ballistic evidence, evidence regarding injuries to Hornbacher, and improperly instructing the jury on the law during closing arguments (id. at CM/ECF pp. 56-57); (11) ineffectiveness of trial counsel in having Petitioner reveal and explain to the jury the shock belt restraint system Petitioner wore during trial (id. at CM/ECF p. 64); and (12) trial counsel's failure to request and trial court's failure to give proper jury instructions (id. at CM/ECF p. 71).

Claim Three: Petitioner was denied the constitutional right to a fair trial, due process, and effective assistance of counsel because (1) the prosecution and trial counsel spoke to the media about the DNA evidence in Petitioner's case; (2) trial counsel failed to correct the prosecution's inaccurate statements to the media about the DNA evidence; and (3) appellate counsel failed to raise on direct appeal the ineffectiveness of trial counsel and prosecutorial misconduct based on their statements to the media. (Id. at CM/ECF pp. 50-51.)

Claim Four: Petitioner was denied his right to due process because (1) Kofoed and other law enforcement engaged in improper collection, handling, storage, and fabrication of evidence used at Petitioner's trial³ (id. at CM/ECF pp. 25-27); (2) law enforcement and prosecution committed misconduct by failing to adequately investigate Hornbacher and seek a search warrant as to Hornbacher (id. at CM/ECF p. 36); and (3) law enforcement violated Petitioner's right to remain silent and to consult with an attorney contrary to Doyle v. Ohio, 426 U.S. 610 (1976) (id. at CM/ECF p. 43).

Claim Five: Petitioner was denied his rights against unreasonable search and seizure and to due process because law enforcement failed to obtain valid Iowa search or arrest warrants before arresting Petitioner in Iowa and transporting Petitioner and his vehicle to Omaha,Nebraska without proper extradition or waiver of the same. (Id. at CM/ECF p. 34.)

Claim Six: Petitioner was denied his constitutional rights to a fair trial and due process because: (1) Retelsdorf committed prosecutorial misconduct because she had a conflict of interest that she failed to disclose to the trial court and she failed to remove herself from the prosecution once the conflict was revealed (id. at CM/ECF pp. 41-42); (2) the trial court abused its discretion when it failed to remove Retelsdorf for her conflict of interest and failed to hold a hearing to determine the impact of the conflict on the proceedings (id. at CM/ECF p. 42); (3) Retelsdorf committed prosecutorial misconduct in misrepresenting the DNA evidence and calling Petitioner a "rapist" and "manipulator" and the trial court failed to give a limiting instruction to counter Retelsdorf's unprofessional behavior (id. at CM/ECF p. 44); (4) the prosecution committed misconduct by using evidence at trial of untried, uncharged "prior bad acts" alleged to have been committed by Petitioner (id. at CM/ECF p. 47);(5) the prosecution failed to turn over all evidence in the case to the defense in violation of Brady v. Maryland (id. at CM/ECF p. 52); (6) the prosecution and trial judge knowingly permitted and encouraged Hornbacher

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