Scott v. Hopkins

Decision Date25 August 1999
Docket NumberNo. 4:98CV3157.,4:98CV3157.
PartiesLarry B. SCOTT, Petitioner, v. Frank HOPKINS, Respondent.
CourtU.S. District Court — District of Nebraska

David R. Stickman, Federal Public Defender's Office, Omaha, NE, for Larry B. Scott, petitioner.

Marilyn B. Hutchinson, Attorney General's Office, Lincoln, NE, for Frank X. Hopkins, respondent.

MEMORANDUM AND ORDER

PIESTER, United States Magistrate Judge.

This matter is before the court on the Magistrate Judge's Report and Recommendation (filing 17) and the Petitioner's objection to such Report and Recommendation (filing 20), filed as allowed by 28 U.S.C. § 636(b)(1)(C) and NELR 72.4.

I have conducted, pursuant to 28 U.S.C. § 636(b)(1) and NELR 72.4, a de novo review of the portions of the Report and Recommendation to which objections have been made. I find that the Report and Recommendation should be adopted.

At the time the Report and Recommendation was filed, the Eighth Circuit Court of Appeals had not ruled on the interpretation of 28 U.S.C. § 2254(d)(1), and there was a split in the circuits regarding the amount of deference that federal courts should accord state court decisions. For the reasons explained in his well-reasoned Report and Recommendation, Judge Piester adopted the interpretation of the Third Circuit Court of Appeals. (Report and Recommendation at 13.) The Third Circuit adopted the interpretation of the "contrary to" clause of section 2254(d)(1) adopted in O'Brien v. Dubois, 145 F.3d 16, 24-25 (1st Cir.1998). Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 888 (3d Cir.1999) (en banc), petition for cert. filed, ___ U.S. ____, 120 S.Ct. 73, 145 L.Ed.2d 62 (1999)(No. 98-2050). The Third Circuit propounded its own interpretation of the "unreasonable application of" clause of section 2254(d)(1), id. at 890 ("[t]he federal habeas court should not grant the petition unless the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent."). Since the filing of the Report and Recommendation, the Eighth Circuit has adopted the "contrary to" interpretation of O'Brien. Richardson v. Bowersox, 188 F.3d 973, 975 (8th Cir. 1999) (citing Long v. Humphrey, 184 F.3d 758, 760 (8th Cir.1999)). The Eighth Circuit has also adopted the Third Circuit's interpretation of the "unreasonable application of" clause. Richardson, id. (quoting Matteo, 171 F.3d at 890). Accordingly, the Report and Recommendation applies the same interpretation of the "contrary to" and "unreasonable application of" clauses of section 2254(d) (1) as that subsequently adopted by the Eighth Circuit.

Inasmuch as Judge Piester has fully, carefully, and correctly found the facts and applied the law, anticipating the Eighth Circuit's holdings in Richardson and Long, I need only state that the petitioner's petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 (filing 1) should be denied in all respects.

IT IS ORDERED:

1. The Magistrate Judge's Report and Recommendation (filing 17) is adopted 2. Petitioner's objection to the Magistrate Judge's Report and Recommendation (filing 20) is denied;

3. Petitioner's petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 (filing 1) is denied; and

4. Judgment shall be entered by separate document..

MEMORANDUM, ORDER AND RECOMMENDATION

Piester, United States Magistrate Judge.

Before the court for consideration is a petition for writ of habeas corpus filed by the petitioner, Larry B. Scott. (Filing 1). For reasons discussed more fully below, I shall recommend that the petition be denied in its entirety.

BACKGROUND

This habeas corpus case arises from petitioner's conviction for two counts of robbery and two counts of use of a weapon to commit a felony. On September 13, 1992, between 10:40 p.m. and 11:00 p.m., petitioner and an accomplice allegedly robbed Grisanti's Restaurant in Omaha, Nebraska. Although the two men wore nylon masks over their faces, the manager of the restaurant, as well as two employees, recognized one of the robbers as the petitioner, Larry Scott, a former Grisanti's employee. They recognized petitioner from his voice, his teeth, his shoes, his facial features and the way he walked. Also, one of the robbers called the manager by name.

Petitioner raised an alibi defense at his trial. He testified that at approximately 10:20 p.m. on the night of the robbery, he received a phone call at his fiancee's house from his fiancee's daughter asking to be picked up at her aunt's house. (Attach. 8, ex. 16 at 259:19-260:2). Petitioner testified that he picked his fiancee's daughter up and arrived back at his fiancee's house at around 10:30 or 10:35 p.m. (Id. at 260:3-5). Petitioner further testified that he remained at his fiancee's home the rest of the night. (Id. at 260:6-7). Petitioner's testimony was corroborated, in part, by Katrina Wallace, a friend of petitioner. Ms. Wallace testified that petitioner's fiancee, Cha-Cha Swift, was babysitting her son and her daughter on the night of the robbery. (Id. at 245:10-246:4). She also testified that when she arrived to pick up her son, a little after 11:00 p.m. on the same night, petitioner was present at Ms. Swift's home. (Id. at 246:10-16). The jury ultimately rejected petitioner's defense and convicted him on all counts. Thereafter, petitioner was found to be a habitual criminal and sentenced to sixteen to twenty years on the robbery counts and twelve to fourteen years on the use of a firearm convictions, the sentences to be served consecutively. Although petitioner indicated at sentencing that he wanted to file an appeal, no appeal was ever taken.

On July 31, 1995 petitioner filed a motion for postconviction relief in the District Court of Douglas County, Nebraska. In his motion petitioner alleged that his counsel failed to perfect a direct appeal as he had requested and that his counsel had failed to call alibi witnesses at trial. The district court granted petitioner's request for an evidentiary hearing on the motion.

With respect to petitioner's allegation that his counsel failed to file an appeal, petitioner indicated at his sentencing hearing that he intended to appeal his convictions. (Attach. 8, ex. 17 at 8:9-17; 11:12-17). At the close of petitioner's sentencing hearing, Ms. Levon Stennis, petitioner's trial attorney, agreed to represent petitioner on appeal. (Id. at 11:24-12-4). At that time, she believed that the identification issue was the only one worth raising in an appeal; she nevertheless told petitioner that she would scour the record for other issues. Petitioner testified that approximately eight days after he had been sentenced, he called Ms. Stennis from the Diagnostic and Evaluation Center ("D & E") and asked her whether she had found any more issues to appeal. (Attach. 8 at 66:2-4). Ms. Stennis replied that she had not. (Id. at 66:4-6). Petitioner stated that after being transferred to the Nebraska State Penitentiary, approximately ninety days after arriving at D & E, he called Ms. Stennis once again to inquire about the status of his appeal. (Id. at 66:9-17). During this conversation, petitioner allegedly learned for the first time that Ms. Stennis had not filed an appeal. (Id. at 66:19-25).

Ms. Stennis gave a different version of the events that transpired between petitioner's sentencing hearing and the final date to file his appeal. Ms. Stennis testified that following the sentencing proceeding, petitioner vacillated between wanting her to file an appeal or a second motion for a new trial.1 According to Ms. Stennis, petitioner spoke more about a motion for a new trial than an appeal because he believed that the testimony of his half-brother, Ed Greer, would secure him an acquittal. (Id. at 110:6-14; 123:6-14). Mr. Greer allegedly had information that would have exonerated petitioner of the robberies. (Id. at 97:23-98:2). Petitioner allegedly told Ms. Stennis that Mr. Greer would be calling her soon with the new information, but he never came forward. (Id. at 93:9-94:8, 95:12-18).

As the final day for filing petitioner's appeal approached, Ms. Stennis once again spoke with petitioner. (Id. at 124:12-125:4). During this conversation petitioner expressed anger about Mr. Greer not cooperating. (Id. at 124:18-24). Ms. Stennis then asked petitioner whether he wanted her to file an appeal, and he replied, "Fuck it," and hung up the phone. (Id. at 94:4-5, 9-11). Based on this response, Ms. Stennis did not file an appeal. (Id. at 94:12-13).

With respect to the allegation that petitioner's counsel failed to call alibi witnesses, Ms. Stennis testified that petitioner told her that Cha-Cha Swift was an alibi witness. (Id. at 83:23-84:3). However, after speaking to Cha-Cha Swift, Ms. Stennis determined that she could not corroborate defendant's alibi because she was asleep when the robbery occurred. Ms. Swift also told Ms. Stennis that when she woke up, petitioner was gone. (Id. at 84:1-3). Ms. Swift further told Ms. Stennis that she did not want to testify because she could not provide an alibi for petitioner. (Id. at 89:1-6). Finally, petitioner allegedly told Ms. Stennis that he did not want to put Ms. Swift through having to testify. (Id. at 89:6-7).

At the postconviction hearing, however, Cha-Cha Swift testified that petitioner left her home at approximately 10:30 or 10:45 p.m. to pick up her daughters, Shampagne and Tawaina Swift. (Id. at 39:5-6). Ms. Swift also testified that Katrina Wallace dropped her son Justin off at her (Ms. Swift's) house at "ten something" and picked him up around 11 or 11:30 p.m. (Id. at 35:20-37:25). She further testified that petitioner was at her home when Katrina returned to pick up her son. (Id. at 38:1-6).

Shampagne and Tawaina Swift also testified at the postconviction hearing about petitioner's whereabouts on the night of the robbery. Shampagne remembered that petitioner picked up her and her sister...

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3 cases
  • Boes v. Warren
    • United States
    • U.S. District Court — Eastern District of Michigan
    • October 3, 2013
    ...of habeas corpus, and not briefs or other documents, provides the basis for granting a writ of habeas corpus. See Scott v. Hopkins, 82 F. Supp. 2d 1039, 1050 (D. Neb. 1999). There is no indication that petitioner wishes to abandon any of the claims that she raised in her initial petition, a......
  • Lyons-Bey v. Campbell
    • United States
    • U.S. District Court — Eastern District of Michigan
    • October 27, 2016
    ...of habeas corpus, and not briefs or other documents,provides the basis for granting a writ of habeas corpus. See Scott v. Hopkins, 82 F. Supp. 2d 1039, 1050 (D. Neb. 1999). This Court declines to address any ineffective assistance of counsel appellate counsel claim which has not been raised......
  • Medina v. Woods, CASE NO. 2:11-CV-12340
    • United States
    • U.S. District Court — Eastern District of Michigan
    • October 30, 2013
    ...of habeas corpus, and not briefs or other documents, provides the basis for granting a writ of habeas corpus. See Scott v. Hopkins, 82 F. Supp. 2d 1039, 1050 (D. Neb. 1999). Because petitioner's counsel never raised a specific claim in hisoriginal petition that counsel was ineffective for f......

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