Ellis v. Houston

• Decision Date: 21 November 2013
• Docket Number: CASE NO. 4:12CV3206
• Parties: GLENN E. ELLIS, Petitioner, v. ROBERT P. HOUSTON, FRED BRITTEN, and JON BRUNING, Respondents.
• Court: U.S. District Court — District of Nebraska

GLENN E. ELLIS, Petitioner, v. ROBERT P. HOUSTON, FRED BRITTEN, and JON BRUNING, Respondents.

CASE NO. 4:12CV3206

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

Dated: November 21, 2013

MEMORANDUMAND ORDER

This matter is before the court on Petitioner Glenn Ellis's ("Petitioner" or "Ellis") Petition for Writ of Habeas Corpus. (Filing No. 1.) Also pending is Ellis's Motion for Stay of Proceedings. (Filing No. 19.) For the reasons set forth below, the court finds that Ellis is not entitled to a stay of these proceedings, and also that a grant of a writ of habeas corpus is not warranted on any of the issues set forth in Ellis's habeas corpus petition.

Ellis argues that he is entitled to a writ of habeas corpus based on the following claims:

Claim One: Petitioner was denied due process of law and the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because his trial and appellate counsel¹ failed to (1) effectively investigate and gather evidence for Petitioner's case; (2) call witnesses and properly cross-examine witnesses; (3) make timely objections; (4) propose proper jury instructions including an instruction defining the terms in the amended information; (5) preserve issues for appeal; (6) advise Petitioner of his rights under the amended information; (7) file a timely motion in opposition to the State of Nebraska's ("State") amended information; (8) raise issues on appeal, including counsel's own ineffective assistance; and (9) advise Petitioner during critical stages of his appeal.

Claim Two: Petitioner was denied the right to an impartial jury in violation of the Fifth, Sixth, and Fourteenth Amendments because (1) Petitioner was not initially allowed to be part of an ex parte communication between the court, the State, trial counsel, anda juror; (2) trial counsel induced Petitioner to excuse a juror without cause and without informing Petitioner of the consequences of that action; (3) the jury instructions did not distinguish between "serious bodily injury" and "serious bodily harm;" (4) during deliberations, the jury submitted a note to the trial judge asking the meaning of "serious bodily injury" and "serious bodily harm," and the court incorrectly instructed the jury that the terms were synonymous; (5) the trial court rejected Petitioner's request for a lesser offense instruction to the jury; and (6) one of the jurors waited until after the submission of the case to express her concern that one of the State's witnesses may retaliate against her.

Claim Three: Petitioner was denied due process of law in violation of the Fifth and Fourteenth Amendments because (1) the State amended its information to include a habitual criminal allegation for the purpose of inducing Petitioner to accept a plea bargain; and (2) the habitual criminal allegation was made without sufficient proof that Petitioner was the same person who had been convicted of those crimes.

I. BACKGROUND

A. Conviction

The State charged Ellis by information in the Lancaster County District Court ("state district court") with first degree assault and use of a weapon to commit a felony. (Filing No. 9-11 at CM/ECF p. 22.) The State subsequently filed an amended information alleging that Ellis was a habitual criminal. (Id. at CM/ECF p. 40.) The evidence presented at trial showed that Ellis stabbed his neighbor, Sherman Gray, two times with a knife, and Gray suffered life-threatening injuries as a result of the attack. The Nebraska Court of Appeals made the following findings of fact on direct appeal:

Until the early morning hours of July 5, 2008, Ellis and Sherman Gray were friends who lived next door to each other in a four-plex apartment building. Ellis, Gray, and their families had made plans to spend the July 4 holiday together, but a dispute arose and the plans fell through, although neither family informed the other of their intent to cancel the previously arranged plans. After midnight, in the early morning hours of July 5, Grayknocked on Ellis' door to inform him that their friendship was over. An argument over unrelated topics ensued, the argument escalated into a physical fight culminating in Ellis stabbing Gray two times with a knife approximately 9 inches long. Gray suffered a collapsed lung and a cut scapula artery, which were life-threatening injuries.

Ellis was charged with first degree assault and use of a weapon to commit a felony in August 2008. In November, the State sought to amend the information to add the allegations that Ellis was a habitual criminal to both charged offenses. The court granted the State's request over Ellis' objection. The State's amended information added the allegations that Ellis was a habitual criminal in that he "has been twice convicted of a crime, sentenced and committed to prison, in this or any other state, or by the United States, or once in this state and at least once in any other state, or by the United States, for terms of not less than one year upon each of said convictions, by which convictions said defendant is deemed to be a habitual criminal."

A jury trial was held from January 27 to January 30, 2009. Evidence was adduced as previously set forth. Further, Ellis testified in his own defense that, on the night of the incident, Gray, Gray's son Michael Bully, and Michael's girlfriend were assaulting his wife, Tammie Ellis. He attempted to assist Tammie, but he was out of breath due to emphysema, so he went inside his apartment and grabbed a knife. He began swinging the knife in an attempt to stop the assault on Tammie and ended up stabbing Gray.

At the close of all the evidence, Ellis moved to dismiss the charges which motion was overruled by the court. Just as the court was about to discharge the alternate juror and submit the case to the jury for deliberations, a juror asked to address the court. The court conferred with the juror in the judge's chambers with counsel for the State and the defense present, but outside the presence of Ellis and the other jurors. The juror indicated to the court that one of the State's witnesses lived only two houses away from her and, although she did not know the witness, she was aware that he was a convicted felon and on parole and the juror was concerned that if the case were decided against the State's witness, the witness might retaliate. However, the juror indicated that she would still be impartial at arriving at a verdict.

The trial court then consulted with counsel for the State and the defense. Counsel for the State indicated that he believed that the juror should be struck. Defense counsel indicated that he would need to discuss the matter with Ellis, so Ellis joined the parties in the judge's chambers. Ellis was informed of the juror's concerns and Ellis indicated that he understood that the juror was concerned with her safety and that he would leave the matter for the court to decide what was best. Defense counsel ultimately submittedthe matter to the trial court's discretion, but stated that he was leaning toward having the juror struck. The trial court elected to strike the juror and permit the alternate juror to deliberate. At Ellis' request, the court advised the jury that the juror was not being excused for any reason related to the trial itself.

During jury instructions, the court instructed the jury to consider self-defense and defense of another, but the court refused Ellis's request to instruct the jury on the lesser offense of third degree assault. The case was then submitted to the jury. During the jury's deliberations, the jury submitted the following question to the court: "Under instruction 5, are the definitions of 'serious bodily harm' and 'serious bodily injury' equal?" The court discussed the following answer with counsel for the State, defense counsel, and Ellis present: "Serious bodily injury is a form of serious bodily harm. Serious bodily harm includes serious bodily injury." Neither the State nor defense counsel objected to the answer proffered by the court.

The jury found Ellis guilty of first degree assault and use of a weapon to commit a felony. Thereafter, the trial court determined that Ellis was a habitual criminal and sentenced him to consecutive sentences of a mandatory minimum of 10 years' to 10 years' imprisonment on each of the convictions, resulting in a total sentence of a mandatory minimum of 20 years' to 20 years' imprisonment.

(Filing No. 9-1 at CM/ECF pp. 2-6.)

B. Direct Appeal

On July 29, 2009, Ellis filed a notice of appeal from his convictions and sentences. (Filing No. 9-11 at CM/ECF p. 1.) On direct appeal, Ellis argued that the state district court erred in (1) failing to instruct the jury on the lesser-included offense of third degree assault; (2) failing to instruct the jury on the definition of "serious bodily harm," and failing to properly answer a question submitted by the jury regarding "serious bodily harm" and "serious bodily injury"; (3) discharging a juror from service immediately prior to submitting the case to the jury for deliberation; (4) denying Ellis's motion to dismiss at the close of the evidence; (5) making various errors with respect to the habitual criminal allegations; and (6) imposing an excessive sentence. (Filing No. 9-5 at CM/ECF pp. 7-9.)

The Nebraska Court of Appeals affirmed Ellis's convictions and sentences in a written opinion on May 4, 2010. (Filing No. 9-1.) Thereafter, Ellis petitioned the Nebraska Supreme Court for further review. (Filing No. 9-7 at CM/ECF pp. 1-10.) The Nebraska Supreme Court denied Ellis's petition on June 17, 2010. (Filing No. 9-3 at CM/ECF p. 2.)

C. Post-Conviction Motion and Appeal

Ellis filed a motion for post-conviction relief in the state district court on August 25, 2010. (Filing No. 9-13 at CM/ECF pp. 31-44.) Ellis argued in his post-conviction motion that (1) the amended information charging him with being a habitual criminal was void or voidable; (2) he was not provided a copy of the amended information; (3) ...