Kidder v. Frakes

400 F.Supp.3d 809

Matthew J. KIDDER, Petitioner,

v.Scott R. FRAKES, the Director of the Nebraska Department of Correctional Services, Respondent.

8:19CV145

United States District Court, D. Nebraska.

Signed August 29, 2019

Matthew J. Kidder, Tecumseh, NE, pro se.

Austin N. Relph, Attorney General's Office, Lincoln, NE, for Respondent.

MEMORANDUM AND ORDER

Richard G. Kopf, Senior United States District Judge

Matthew J. Kidder (Petitioner or Kidder) has filed a habeas corpus petition claiming that he was convicted of murder and use of a weapon to commit a felony and sentenced to life in prison, plus a consecutive sentence for use of a weapon, because counsel was ineffective in various ways.

Respondent has filed a motion for summary judgment asserting that Petitioner's assertions of ineffective assistance of counsel are procedurally defaulted because, although some or all of those claims may have been raised in an unsuccessful post-conviction action before the state district court, Petitioner's appeal was dismissed as untimely. Therefore, Respondent argues that, having failed to give the Nebraska courts one complete round of review, Petitioner's claims have been procedurally defaulted without excuse. Petitioner responds by arguing, among other things, that if appeal was untimely it was not his fault.

I agree with Respondent that the motion for summary judgment must be granted due to procedural default and that Petitioner's excuses are not sufficient to avoid the procedural default. My reasoning follows.

Ineffective Assistance of Counsel

Here is what I found were the ineffective assistance of counsel claims asserted by Kidder:

Claim One : The Petitioner was denied effective assistance of counsel because defense counsel: (a) did not object to the state's use of contaminated DNA evidence; (b) did not object to contradictory testimony as to how, when, and where the white phone cord was taken into custody and processed; (c) failed to bring to the court's attention testimony regarding secondary transfer and how easily DNA evidence can be contaminated; (d) failed to expose Patricia Springborg's perjured testimony; (e) failed to challenge testimony regarding rigor mortis, lividity, and time of death; (f) failed to challenge the accuracy of agent Mark Sedwick's testimony who did not have his own report at time of testimony in front of him; (g) failed to expose Detective Ryan Deuiss's perjured testimony concerning alleged statements made by Petitioner during audio-video recorded interviews that went unproven by the state during trial.

Filing no. 7 at CM/ECF pp. 1-2.

The Overwhelming Evidence Against Kidder

Because the "prejudice" prong of the "cause and prejudice" standard may be relevant, I next discuss the weight of the evidence.

Jessica Nelson's mother received a telephone call advising that Nelson had not shown up for work. Her mother went to Nelson's house to check on her and discovered Nelson's body partially submerged in the bathtub, unclothed, with the water running. She was curled up in a fetal position, and one hand was clutching a cell phone charging cord. Nelson's clothes were piled in the tub near her feet. Blood was pooled under Nelson's head, and there was a ligature mark on her neck. State v. Kidder , 299 Neb. 232, 908 N.W.2d 1, 4 (2018).

In finding beyond a reasonable doubt that the error, if any, in failing to suppress evidence taken from a laptop, was harmless, the Nebraska Supreme Court detailed the overwhelming evidence again Kidder:

The record in this case demonstrates that any error in overruling the motion to suppress and the motion in limine was harmless. Both motions related exclusively to evidence obtained from Kidder's laptop computer. That evidence showed that sometime between June 20 and July 17, 2015, Kidder used explicit terms to search with his laptop computer for violent pornographic videos depicting acts that were similar to the manner in which Nelson was killed. We must consider this evidence relative to the rest of the evidence of Kidder's guilt.

First, there was uncontroverted physical evidence establishing Kidder's guilt. Kidder's DNA was found on Nelson's fingernails and on the cell phone cord used to strangle her. A few days after Nelson's body was discovered, Kidder was observed to have a cut on his hand consistent with a fingernail mark, and when Nelson's body was discovered, her thumbnail was bent back.

Next, there was detailed evidence of a confession. Kidder's cellmate testified that Kidder confessed to Nelson's murder. The cellmate's credibility was strengthened by the fact that he knew details about the crime and the crime scene that had not been released to the public.

Finally, in addition to the physical evidence and the confession, there was considerable circumstantial evidence establishing Kidder had both the motive and the opportunity to commit the crimes. Kidder left work shortly before the crimes occurred, and cell site location information placed his cell phone in the vicinity of Nelson's home around the time she was assaulted and strangled. Kidder also admitted to his father, in a recorded telephone conversation, that he was at Nelson's house for about 20 minutes on the night of the murder. Kidder admitted to investigators he wanted to "see [Nelson] naked," and Kidder's text messages to Nelson contained sexual overtures that were either rebuffed or ignored. There was evidence that in 2008, Kidder had choked and sexually assaulted a friend after she allowed him into her home. Likewise, Nelson was a friend of Kidder's and there were no signs of forced entry into Nelson's home.

The untainted, relevant evidence of Kidder's guilt was overwhelming, and the laptop computer evidence was cumulative of other relevant evidence tending to prove motive. Thus, even if the evidence obtained from Kidder's laptop computer was erroneously admitted at trial, we find the guilty verdicts were surely unattributable to that evidence. Any error in admitting the evidence from Kidder's laptop computer was harmless beyond a reasonable doubt. We therefore reject both of Kidder's assignments of error and affirm his convictions.

Id. 908 N.W.2d at 10.

Undisputed Facts

1. On September 4, 2015, the State charged Petitioner with First Degree Murder (a Class IA felony) and Use of a Deadly Weapon to Commit a Felony (a Class II felony). Filing no. 13-4 at CM/ECF pp. 1-2. The charges were in relation to the killing of Jessica Nelson on or about June 25, 2015. Filing no. 13-4 at CM/ECF pp. 1-2.

2. Petitioner was represented by several county public defenders. Filing no. 13-4 at CM/ECF p. 9. Following a trial, a jury found Petitioner guilty of both charges. Filing no. 13-1 at CM/ECF p. 2; Filing no. 13-4 at CM/ECF pp. 3-8. The state district court subsequently sentenced Petitioner to life in prison on the murder conviction. After first imposing a sentence of 50 to 50 years on the use of a weapon charge, the trial judge changed the sentence to 20 to 20 years of imprisonment on the use of a weapon conviction to be served consecutively. After a bench conference, the trial judge thought she had erred in imposing the 50-year sentence. She thought, erroneously as it turns out, that the statutory maximum sentence was 20 years. Accordingly, she changed her sentence from 50 to 20 years. Kidder , 908 N.W.2d. at 11. As will be seen, the trial judge erred when she tried to change the sentence since the original 50-year sentence was proper when pronounced and could not be changed after once pronounced. Id.

3. On November 30, 2016, Petitioner appealed. Filing no. 13-1 at CM/ECF p. 9; Filing no. 13-2. As was true at trial, Petitioner was represented by several county public defenders. Filing no. 13-7 at CM/ECF p. 2; Kidder , 908 N.W.2d at 3.

4. On March 9, 2018, the Nebraska Supreme Court affirmed Petitioner's convictions and the murder sentence but found plain error in the use of a weapon sentence. Filing no. 13-7; Kidder, 908 N.W.2d. at 12. It therefore vacated that sentence and remanded with directions to institute the 50-year sentence on the use of a weapon sentence. Id.

5. On May 7, 2018, after the remand had been complied with, Petitioner filed a motion for post-conviction relief in the state district court. Filing no. 13-5 at CM/ECF pp. 1-4. He asserted ineffective assistance of counsel claims. On June 21, 2018, the state district court denied Petitioner's post-conviction motion without an evidentiary hearing observing that Petitioner had failed to explain in sufficient detail how he was prejudiced. Filing no. 13-5 at CM/ECF pp. 5-8. On July 11, 2018, Petitioner filed a "Motion For Reconsideration Of Order Denying PostConviction Relief." Filing no. 13-5 at CM/ECF pp. 9-10. On August 7, 2018, the state district court denied that motion. Filing no. 13-5 at CM/ECF p. 11.

6. Thereafter, on August 20, 2018, Petitioner filed his notice of appeal, and then on September 14, 2018, he filed his poverty affidavit. Filing no. 13-1 at CM/ECF p. 6; Filing no. 13-3; Filing no. 13-6.

7. On December 31, 2018, Respondent moved for summary dismissal, on the ground that Petitioner had not timely appealed. Filing no. 13-6. On February 4, 2019, the Nebraska Supreme Court sustained Respondent's motion and dismissed Petitioner's appeal. Filing no. 13-3 at CM/ECF p. 4.

8. On April 19, 2019, Petitioner filed his properly signed habeas petition in this court. Filing no. 1; Filing no. 1-1.

9. I take judicial notice of the facts recited by the Nebraska Supreme Court quoted above to the extent those facts are relevant to determining whether Petitioner can provide an excuse for procedural default.¹

Law Of Procedural Default

I start with a brief recitation of the law of procedural default. As set forth in 28 U.S.C. § 2254 :

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)

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