Jones v. Whitmire

• Docket Number: 8:20CV81,8:20CV275
• Decision Date: 12 July 2022
• Parties: MARVEL JONES, Petitioner, v. DON WHITMIRE, Respondent. MARVEL JONES, Petitioner, v. DON WHITMIRE, Respondent.
• Court: U.S. District Court — District of Nebraska

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MARVEL JONES, Petitioner, v. DON WHITMIRE, Respondent.

MARVEL JONES, Petitioner, v. DON WHITMIRE, Respondent.

Nos. 8:20CV81, 8:20CV275

United States District Court, D. Nebraska

July 12, 2022

MEMORANDUM AND ORDER

Richard G. Kopf, Senior United States District Judge

These consolidated cases are before the court on Petitioner Marvel Jones' (“Petitioner” or “Jones”) Petition for Writ of Habeas Corpus brought pursuant to 28 U.S.C. § 2254. (Filing 1, Case No. 8:20CV81; Filing 1 Case No. 8:20CV275.) For the reasons that follow Petitioner's habeas petition is denied and dismissed without prejudice.

I. CLAIMS

Summarized and condensed,^[1] and as set forth in the court's prior progression order (filing 13)^[2], Petitioner asserted the following claims that were potentially cognizable in this court:

Claim One: The Lancaster County Board of Mental Health (“mental health board”) lacked subject matter jurisdiction to enter a civil commitment order against Petitioner because (1) the August 30, 1996 criminal citation and complaint was not filed in the state county or district court pursuant to Neb. Rev. Stat. § 29-423 (Reissue 2016), and (2) the criminal information filed against him on September 3, 1996, was not filed 24 hours prior to his arraignment as required by Neb. Rev. Stat. § 29-424 (Reissue 2016).

Claim Two: The mental health board used inadmissible and insufficient evidence to find Petitioner a dangerous sex offender, including evidence of a prior criminal conviction more than 10 years old and an evaluation that was not timely completed prior to Petitioner's release from prison.

Claim Three: The county attorney failed to investigate the evidence prior to filing a petition with the mental health board.

Claim Four: Petitioner was denied effective assistance of counsel because his appointed counsel had a conflict of interest and failed to raise the following issues before the mental health board, the state district court, and the appellate courts: (1) subject matter jurisdiction; (2) inadmissible evidence; (3) insufficient evidence; (4) the county attorney's failure to investigate the evidence; (5) the mental health board used inadmissible and insufficient evidence against Petitioner; and (6) the county attorney used inadmissible and insufficient evidence against Petitioner.

II. BACKGROUND

Much of the background information is derived from Respondent's Brief in Support of Answer (filing 34), as it includes a thorough discussion of Jones' state court proceedings with appropriate citations to the records in the Designation (filings 21 & 23).

A. 1997 Conviction and Previous Federal Habeas Cases

In 1997, Jones was convicted of first degree sexual assault of a child in the District Court of Lancaster County, Nebraska, and was sentenced to 25 to 40 years' imprisonment (hereinafter “1997 conviction”). (Filing 21-11 at CM/ECF p. 2; Filing 23-1 at CM/ECF p. 5.) The Nebraska Court of Appeals affirmed Jones' conviction in State v. Jones, 577 N.W.2d 302 (Neb. Ct. App. 1998). This was Jones' third conviction for a sexual offense perpetrated on a child. (Filing 21-11 at CM/ECF p. 2.)

Jones has brought at least three habeas corpus actions in this court challenging his 1997 conviction. Jones filed his first federal habeas petition on January 3, 2000. See Jones v. Kenney, Case No. 4:00CV3002 (D. Neb.) (Filing 1). On April 27, 2000, the court adopted the report and recommendation of a magistrate judge and denied and dismissed Jones' habeas petition with prejudice. (Filings 13 & 14, Case No. 4:00CV3002). Jones did not prosecute an appeal from the denial of his habeas petition.

On March 4, 2003, Jones filed another petition for federal habeas relief attacking his 1997 conviction. See Jones v. Britten, Case No. 4:03CV3083 (D. Neb.) (Filing 1). The court acknowledged that Jones had filed a previous habeas petition in Jones v. Kenney, Case No. 4:00CV3002, and dismissed his successive petition without prejudice to reassertion of a subsequent petition upon certification from the Eighth Circuit Court of Appeals as required by 28 U.S.C. § 2244(b)(3). (Filings 6 & 7, Case No. 4:03CV3083). Jones' subsequent applications for permission to file a successive habeas petition were denied by the Eighth Circuit Court of Appeals. (Filings 9 & 11, Case No. 4:03CV3083.)

Jones filed a third petition for habeas relief on January 3, 2014, in which he again challenged his 1997 conviction for first degree sexual assault of a child. See Jones v. Gage, Case No. 8:14CV01 (D. Neb.) (Filing 1). On January 8, 2014, the court dismissed Jones' petition because it was a successive petition attacking the same conviction and sentence already challenged in Jones v. Kenney, Case No. 4:00CV3002, and Jones v. Britten, Case No. 4:03CV3083. (Filings 11 & 12, Case No. 8:14CV01.) Jones prosecuted an appeal to the Eighth Circuit Court of Appeals, and the Court denied him a certificate of appealability and dismissed his appeal on September 25, 2014. (Filing 25, Case No. 8:14CV01.)

B. 2018 Commitment and Appeal

Jones is currently a patient committed to the Norfolk Regional Center (“NRC”) pursuant to Nebraska's Sex Offender Commitment Act, Neb. Rev. Stat. §§ 71-1201 to 71-1226 (“SOCA”). On June 26, 2018, a Deputy Lancaster County Attorney (“County Attorney”) filed a petition before the Mental Health Board of the Third Judicial District in Lancaster County, Nebraska (“Mental Health Board”), requesting that Jones be adjudged a dangerous sex offender under the SOCA. (Filing 23-1 at CM/ECF pp. 5-8.) At the time the petition was filed, Jones was in the custody of the Nebraska Department of Correctional Services (“NDCS”) and nearing completion of his sentence for his 1997 conviction with a projected release date of July 5, 2018. (Id. at CM/ECF p. 23.) The petition alleged that Jones is a dangerous sex offender with a mental illness and/or a personality disorder which makes him likely to engage in repeated acts of sexual violence. (Id. at CM/ECF p. 5.) The petition further alleged that Jones had been convicted of the following sex offenses:

a. Sexual Assault - Second Degree, after pleading guilty to the charge on or about August 28, 1978, and being sentenced on or about September 29, 1978 in the District Court of Lancaster County, Nebraska, at Docket 51, Page 67;

b. First Degree Sexual Assault of a Child, after being found guilty by a jury on or about January 25, 1980, and being sentenced on or about Octoer [sic] 5, 1983 in the District Court of Lancaster County, Nebraska, at Docket 53, Page 236[;]

c. First Degree Sexual Assault - Second Offense, after being found guilty by a jury on or about March 3, 1997, and being sentenced on or about April 2, 1997 in the District Court of Lancaster County, Nebraska, at Docket 693, Page 233[.]

(Id.) The petition also alleged that Jones is substantially unable to control his criminal behavior, and that neither voluntary hospitalization nor other treatment alternatives less restrictive of Jones' liberty than a Mental Health Board ordered treatment disposition were available or would suffice to prevent the harm described in Neb. Rev. Stat. § 83-174.01. (Id. at CM/ECF pp. 5-6.)

Attached to the petition was an affidavit by Agnes Stairs, Ph.D. (“Dr. Stairs”)—a psychologist licensed by the State of Nebraska and employed by NDCS who is experienced in sex offender risk assessment. (Id. at CM/ECF p. 9; Filing 23-3, Mental Health Board Bill of Exceptions (hereinafter “Board BOE”) 21:22-22:2, at CM/ECF pp. 62-63.) Dr. Stairs attached to her affidavit an evaluation she completed of Jones which was limited to “only file review and consideration of collateral information due to Mr. Jones' refusal to participate in the interview portion” of the evaluation on February 14, 2018. (Filing 23-1 at CM/ECF pp. 9-10; Filing 23-3, Board BOE 29:2-12, at CM/ECF p. 70.) In her affidavit, Dr. Stairs stated that, in her professional opinion, based upon her expertise in sex offender risk assessment and treatment and the information available to her, Jones was a dangerous sex offender as defined by Nebraska law, and that Jones would best be served in an inpatient setting to address the issues outlined in her SOCA evaluation. (Filing 23-1 at CM/ECF pp. 9-10.)

1. Mental Health Board Hearing

On August 2, 2018, the Mental Health Board held a hearing on the petition to consider Jones' potential confinement under the SOCA. (Filing 23-1 at CM/ECF p. 24; Filing 23-3 at CM/ECF pp. 46-145.) The County Attorney appeared at the hearing and Jones was present with his counsel, Kristi Egger, a Deputy Lancaster County Public Defender. (Filing 23-1 at CM/ECF p 24; Filing 23-3, Board BOE 5:13-15, at CM/ECF p. 46.) At the beginning of the hearing, Jones' counsel informed the Mental Health Board that Jones denied the allegations, was objecting to the proceedings, and that he wished to represent himself with his attorney appointed as his standby counsel. (Filing 23-3, Board BOE 6:4-15, at CM/ECF p. 6.) Jones asserted that the Public Defender's Office should not be allowed to represent him because he claimed that office had a conflict of interest stemming from its representation of Jones in his 1997 conviction. (Id., Board BOE 9:4-14, 11:16-25, at CM/ECF pp. 50, 52.) Upon inquiry from the Mental Health Board, Jones' counsel, Ms. Egger, stated that her office looked to see if there were any internal conflicts, and none were found. (Id., Board BOE 8:8-18, at CM/ECF p. 51.) The Mental Health Board gave Jones an opportunity to articulate a conflict of interest that would prevent the Public Defender's Office from representing him (id., Board BOE 12:2-14:18, 16:3-19:10, at CM/ECF pp. 53-55, 57-60), but after listening to Jones, the Mental Health Board found no basis for finding such a...