Moss v. Jeffreys

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
NICHOLAS M. MOSS,
Petitioner,
vs.
ROB JEFFREYS,
Respondent.
8:20CV474
MEMORANDUM AND ORDER
This matter is before the Court and is ripe for review on Nicholas M. Moss’ (“Moss”)
Petition for Writ of Habeas Corpus (the “Petition”), Filing No. 1, and a brief in support,
Filing No. 18, Respondent’s Answer, Filing No. 13, brief in support, Filing No. 14, and
state court records, Filing No. 10 and Filing No. 54.
After careful review, the Court will grant the Petition, in part, in accordance with
this Memorandum and Order. All of the remaining Claims and Subparts will be dismissed
with prejudice. The execution of the writ of habeas corpus shall be stayed for 90 days
from the date of this order to permit the State of Nebraska to grant Moss a new trial in
accordance with this Memorandum and Order.
I. CLAIMS
Summarized and condensed,1 and as set forth in the Court’s initial review order,
Filing No. 6 at 1-3, Moss asserted the following claims that were potentially cognizable in
this Court:
1 While no objections to the Court’s summary and condensation were filed by the parties, the summary is
provided for ease of reference and is not binding for purposes of further discussion by the parties of the
claims as pleaded or later analysis by this Court.
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Claim One: [Moss] was denied due process and the effective assistance
of counsel because (1) the trial court failed to hold a hearing
to determine whether [Moss] should wear a stun belt during
trial; (2) counsel failed to object to [Moss] having to wear a
stun belt; (3) the trial court failed to declare a mistrial or
admonish the jury when [Moss] was electrocuted by a stun
belt in the jury’s presence; (4) counsel failed to move for a
mistrial or request a jury admonishment regarding the stun
belt electrocution; and (5) counsel failed to raise the stun belt
issue on appeal.
Claim Two: The state destroyed material exculpatory evidence contained
within [Moss’] cell phone in violation of Brady v. Maryland, 373
U.S. 83 (1963), and [Moss’] due process rights.
Claim Three: [Moss] was denied due process and the effective assistance
of counsel because the trial court imposed an excessive
sentence based on a presentence investigation report
containing incorrect information of [Moss’] criminal history and
counsel failed to obtain the report for [Moss] to review.
Claim Four: [Moss] was denied a fair trial and the effective assistance of
counsel because (1) the trial court erred in sustaining the
State’s objections to the testimony of witnesses Roger
Rankin, Petar Pollard, Jason Owens, and Austin Aurterburn2
and because counsel (2) failed to endorse and introduce the
testimony of Pollard, Aurterburn, Owens, and Rankin at trial
to aid [Moss’] defense; (3) failed to gain proper out-of-state
service of witness Pollard to compel his attendance and
testimony at trial; and (4) failed to make an offer of proof
regarding the testimony of excluded witnesses Pollard,
Aurterburn, Owens, and Rankin.
Claim Five: The trial court erred by not discharging the case for a speedy
trial violation.
Claim Six: The trial court erred in not granting a directed verdict for
insufficiency of evidence.
Claim Seven: [Moss] was denied the effective assistance of counsel
because counsel (1) failed to properly offer the testimony of
2 Moss repeatedly spells the name of this potential witness as “Austin Aurterburn”, see e.g. Filing No. 1 at
53, not “Arterburn” as the state court of appeals does, see Filing No. 10-3 at 15. As it is unclear to this
Court which is the correct spelling, the Court shall not change the spelling as utilized by the parties or the
state courts, but shall refer to this potential witness as “Aurterburn” for the remainder of this Memorandum
and Order when conducting its analysis.
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Jennifer York regarding the destruction of [Moss’] cell phone;
(2) failed to provide a meaningful defense; (3) failed to lay
proper foundation to introduce the victim’s cell phone records;
(4) failed to properly document the exculpatory nature of the
information in [Moss’] cell phone that was destroyed; (5) failed
to call prosecutor Jennifer Hessig as a witness at the motion
to dismiss evidentiary hearing regarding her alleged requests
for a PIN code; and (6) failed to withdraw and testify at the
hearing on the motion to dismiss regarding the lack of request
by the prosecutor for the cell phone PIN code.
II. BACKGROUND AND PROCEDURAL HISTORY
A. Pre-trial3
Moss and “K.E.” were in a dating relationship for approximately 3 years. In April
2015, an event occurred that prompted K.E. to apply for a domestic violence protection
order against Moss. The protection order was issued on May 3, and Moss was served
with the protection order while he was incarcerated. Moss was released on May 14, and
the events at issue in this case, which will be described in detail below, occurred later that
evening into the early morning of May 15.4
As a result of the [Incident], Moss was arrested and charged with first degree
sexual assault, first degree false imprisonment, and violation of a domestic violence
protection order. At the time Moss was arrested, police seized a black cell phone5 from
his pants' pocket. At a pretrial hearing on a discovery motion held on January 4, 2016,
Moss clarified that, in addition to other evidence, he was seeking any cell phones in the
3 The Court states the facts under the “Pre-trial” heading as they were recited by the Nebraska Court of
Appeals on direct appeal. Filing No. 10-3. See Bucklew v. Luebbers, 436 F.3d 1010, 1013 (8th Cir. 2006)
(utilizing state court’s recitation of facts on review of federal habeas petition).
4 This Court shall refer to the events occurring the night of May 14 and the early hours of May 15 collectively
as the “Incident” for ease of reference.
5 The cell phone referenced here shall be referred to as the “Phone” throughout this Memorandum and
Order.
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possession of the police. The district court explained that the State could give him a
listing of the property in its possession or he could file a specific motion seeking to have
the Phone examined by an independent expert, but the State "can't simply turn over the
[P]hone to you."
Numerous additional hearings were held regarding the Phone. The State
continued to utilize its available resources to bypass the personal identification number
(“PIN”) code requirement on the Phone to access any information that may be stored on
the Phone which would be relevant to this case. Moss indicated a general belief that the
Phone might contain exculpatory evidence and wanted updates from the State as to the
status of its inspection. At various hearings, the district court reminded Moss that he could
file a motion to have an independent expert examine the Phone, and the State had no
objection to his doing so. Ultimately, he never filed such motion.
The State was unable to successfully bypass the PIN code requirement on the
Phone and approved utilization of a "chip off' procedure, which was described as a last
option to gain access to the information stored on a cell phone. Through this procedure,
the memory chip is removed from the motherboard of a cell phone and placed in a reader
to access the data directly from the chip. Utilizing this procedure almost certainly results
in the destruction of the phone. At that point, however, that particular procedure is the
only remaining option to attempt to read the chip, which is the part of the phone that
contains any data or information that may be useful.
The State utilized the chip off procedure for Moss' [P]hone, but because the type
of phone Moss had is rare in this part of the country, no local law enforcement agencies
had a reader that could read its chip. Thus, the chip was shipped to an out of state facility,
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which was also unable to read the data from the chip. The State therefore determined
that it would not be able to utilize any information from the [P]hone at trial, and the Phone
was returned to Moss in several pieces.
Moss filed a motion to dismiss the charges on June 6, 2016. He noted that when
the [P]hone was returned to him, it was broken into pieces and he claimed that when the
State determined it was unable to access the information on the [P]hone, it intentionally
destroyed the [P]hone to prevent Moss from accessing it. He asserted that as a result,
his due process rights had been violated and requested that the court dismiss the
charges.
An evidentiary hearing was held on the motion to dismiss, and two forensic
technology experts testified for the State as to the process they used on Moss' [P]hone.
They explained that because they did not have the PIN code to the [P]hone, they had to
attempt to bypass the code requirement, but were unable to do so using their available
technology. Thus, as a last effort, they utilized the chip off procedure, a procedure which
they have used in the past and which is an accepted procedure in the scientific
community. They acknowledged that using this procedure generally destroys the phone.
The district court subsequently issued an order concluding that the State had not
acted in bad faith in failing to preserve the [P]hone. It observed that law enforcement
utilized all available means in order to gain access to the [P]hone prior to utilizing the chip
off procedure. The court noted that Moss, through counsel, could have provided the PIN
code to the [P]hone which would have allowed the State to examine its contents and
discover any information of evidentiary value, inculpatory or exculpatory. The court also
determined that although Moss' counsel made general statements about the [P]hone
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possibly containing exculpatory evidence, there was never an indication as to what that
evidence was or its value to Moss. Accordingly, the motion to dismiss was denied.
B. Trial, Conviction, and Sentence
Moss’ trial was held over the course of four days in January 2017 in the Sarpy
County District Court. Filing Nos. 10-15, 10-16, 10-17, 10-18, and 10-19.
1. Trial Testimony6
K.E. testified that Moss was her former boyfriend and that during their relationship,
they bought a pet dog. She explained that she obtained a protection order against Moss,
which was issued on May 3, 2015, but when he was released from jail on May 14, he
called her repeatedly. She told him not to call her anymore and that their relationship was
over.
Around 7 pm that evening, K.E. went to the home she had previously shared with
Moss. She observed that a glass door was broken and their dog was missing. She called
911, and while she was waiting for the police to arrive, Moss called. K.E. asked about the
dog, and he said it was fine but threatened that if she wanted to see the dog again, she
had to meet with him that night. K.E. decided to meet with Moss in order to get her dog
back. She ultimately met him in a grocery store parking lot and got into his vehicle.
They drove around and made several stops, including at a few bars and at an
extended stay hotel where Moss had been residing since his release from incarceration.
K.E. testified that throughout the evening, Moss was making threats against the dog and
K.E.'s family. Eventually they went to the apartment of Moss' friend, Chris Pham. The
6 The Court states the following facts under the “Trial Testimony” heading as they were recited by the
Nebraska Court of Appeals on direct appeal. Filing No. 10-3. See Bucklew, 436 F.3d at 1013.
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dog was at the apartment, and K.E. was relieved to see her dog. After leaving the
apartment, they drove around for a while and then returned to the hotel for the second
time. At that point, K.E. was feeling distraught, confused, and a little hopeless because
she thought once she got to see the dog, the night would be over.
Moss and K.E. went into Moss' hotel room, and K.E. asked if she could leave. She
moved toward the door, but Moss got in front of her. He locked the door, pulled her back
by the arm, and said she was staying there and not going anywhere. K.E. explained that
prior to this point in the evening, she felt as though she could handle the situation, but at
the point when Moss prevented her from leaving the hotel room, she no longer felt in
control and began to believe that there was "no coming back."
When Moss went to use the restroom, K.E. dialed 911 from the hotel phone and
left the phone off the receiver. She was unsure whether the call was successfully
completed but did not have time to check before Moss exited the restroom. But she
hoped that someone would hear them through the phone and send someone to the room
to check on her. A hotel employee confirmed that a 911 call had been placed from Moss'
room that evening. Moss had left the door to the restroom partially open, and K.E. would
have had to walk past the restroom in order to get to the door of the room. K.E. explained
that she was scared for herself at that point because Moss would not let her leave and
had "strong-armed" her. Moss had his [P]hone and her cell phone on his person.
A short while later, Moss asked K.E. why they could not “just make love for one
last time." She told him she did not want to, but he forcibly pulled her jeans off and
penetrated her vagina with his penis. She continued to resist, but he put his hands around
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her throat and over her mouth. He pulled out of her and penetrated her again, at which
point she was crying "a lot" and he stopped.
Afterwards, K.E. repeatedly pleaded with Moss to take her to get her dog or return
her back to her vehicle, and he finally agreed. He did not drive straight to her vehicle, but
instead drove around for "what seemed like an eternity." While driving Moss made
comments to K.E. about how he could fix their relationship and said they would both be
better off if they were dead. Moss suggested that he wanted to end their lives by crashing
the vehicle. At that point, K.E. decided to attempt to jump out of the vehicle. When they
stopped at a red light, K.E. opened the door, started screaming for help, and jumped out.
Two nearby drivers stopped to help K.E. and called the police. K.E. reported to
the officer that Moss had held her against her will and sexually assaulted her. The officer
transported K.E. to a hospital where she underwent a sexual assault examination.
During the examination, K.E. told the nurse that she had met with her former
boyfriend, and they went to a hotel. K.E. said that Moss had indicated to her that he
wanted to have sex with her one more time, she refused, but he penetrated her anyway.
The sexual assault examination revealed Moss' sperm inside K.E.'s vagina.
Moss testified in his own defense at trial. He alleged that contrary to K.E.'s
testimony, she willingly accompanied him on May 14 and 15, 2015. He denied ever
threatening their dog or K.E.'s family. He testified that while at a bar, K.E. asked him if he
wanted to have sex. He claimed that they then went to the hotel and had consensual
sex. He acknowledged arguing with her in his vehicle the following morning, but he
claimed it was because she was still intoxicated. When she opened the door to the
vehicle, he said he pulled her back in because he thought she was falling out.
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2. The use of shackles at Moss’ trial7
Throughout his four-day trial, Moss was affixed with an electronic shackling
device on his leg (the “Stun-Belt”).8 No findings were made by the trial court at any time
regarding the use of the Stun-Belt nor did Moss’ counsel object to its use.
During the live testimony of a law enforcement witness for the State, prior to
the State resting its case, the Stun-Belt activated (the “Shock Incident”) for unknown
reasons.9 Trial transcripts provide the following description of the Shock Incident
and the immediate aftermath:
([Moss] yelled.)
DEPUTY: You all right?
THE COURT: Can you continue with your answers, sir? Do we need to take a
short break?
[MOSS]: Can we please? Sorry, my back.
Filing No. 10-17 at 137. The Trial Court then stopped the witness’ testimony, instructed
the jury that court would recess for five to ten minutes, and excused the jury. Id.
After a 30-minute recess, the trial court judge brought counsel for the parties and
a courtroom deputy back without the jury. The trial court described the Shock Incident
for the record as follows:
7 The Court notes that the nature of the claims alleged necessitates inclusion of greater factual detail
regarding the Stun-Belt and its activation than is set forth in the Nebraska Court of Appeals decision on
direct appeal. As such, the facts as recited here are provided via citation to the record before this Court.
8 The state courts refer to the stun-style shackle used in Moss’ case as the “bandit” in its discussions. See,
e.g., Filing No. 10-12 at 223. For ease of reference throughout this Memorandum and Order, this Court
shall refer to the stun-style shackle Moss was required to wear throughout his trial as the “Stun-Belt” but
shall not change the state courts’ description of the Stun-Belt as the “bandit” when directly quoting the state
courts.
9 Id. at 211 (the trial court found that the circumstances surrounding the Stun-Belt’s activation “remain
unclear” even after the trial’s conclusion).
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THE COURT: What occurred before the last break was there was a noise.
[Moss] had a yell or kind of a brief scream realizing that the bandit had went
off. And I believe when I looked at counsel, [Moss] he said my back hurts.
And at that point in time the [Court] tried to redirect everything back to the
witness. And looking at [Moss’ counsel] I then turned and asked if we
needed to take a break, which was appropriate. That occurred about a little
over a half hour ago. What the Court decided to do is to have [Moss] go
back and check with the deputies to make sure the bandit was working
properly.
And, deputy, you stated you did not hit the trigger button.
THE DEPUTY: I did not sir, no.
THE COURT: All right. We ended up taking a longer break because – to
have Mr. Moss, didn’t want to bring him right back in or anything else like
that. We’ve taken a little bit of a break at that point in time and are
reconvening now. I believe the bandit apparatus device has been switched.
Does that comport to what would transcribe on the record what we had
recorded?
. . . .
[MOSS’ COUNSEL]: Yeah. Your Honor, I just want to say, just so you’ll
know what I’m going to ask, is we proceed with the rest of the trial with the
witnesses from today. But [Moss] is in no psychological ability to continue
with his testimony today. So I’m asking that we get to the point where
there’s nobody left except [Moss]. I’m going to ask for us to come back
tomorrow. He’s emotionally a basket case right now.
. . . .
THE COURT: Here’s what I would suggest we do: We’ll finish the
testimony. We’ll have to excuse the jury. I anticipated a half-time motion
from you, motion to dismiss, which we have to take place outside the record.
We’ll hear that, and then decide where we go at that point in time.
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[MOSS’ COUNSEL]: Because I do have, you know, a couple witnesses
outside and if the motion to dismiss is not granted then.
THE COURT: Then you can proceed with those witnesses. We would
anticipate maybe the jury getting out a little early today, that would be fine.
[MOSS’ COUNSEL]: That’s fine.
THE COURT: . . . . All right. I’m going to have the parties remain seated
while the jury comes back in for obvious reasons.
(Jury entered courtroom.)
THE COURT: Please have a seat. All right. Back on the record here on
CR15 page 660. Want to thank the jury. We had to take a break. We had
a couple of other motions we had to address. And I believe at this time
we’re ready to start . . . .
Id. at 138-40.
3. Conviction and sentence
Moss was found guilty of one count of First Degree Sexual Assault, one count of
First Degree False Imprisonment, and one count of Violation of a Domestic Violence
Protection Order pursuant to a verdict of the jury on January 17, 2017. Filing No. 10-12
at 179. Moss was sentenced to serve not less than 26 years nor more than 31 years on
July 10, 2017. Id. at 218-19.
C. Post-Trial Motions
1. Motion for New Trial
With court approval, Moss filed an amended motion for new trial on February 20,
2017, seeking a new trial under various Nebraska state statutes due to: (1) Moss having
been prejudiced and denied a fair and impartial trial due to his receiving a 50,000 volt
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shock from the Stun-Belt in the presence of the jury, arguing Moss did not cause the
shock, that the use of the Stun-Belt should have been precluded due to his medical
conditions, and the use of the Stun-Belt “violated rules and policies governing” its use; (2)
the verdict being based on insufficient evidence; (3) the trial court preventing evidence of
the victim and her “friend” recanting her testimony and providing a motive for her
allegations against Moss; (4) the trial court’s failure to allow evidence in the form of cell
phone records containing communications between Moss and the victim; (5) the State’s
destruction of the [P]hone containing exculpatory evidence; and (6) speedy trial violations
relating to the calculation of time made by the trial court. Filing No. 10-12 at 193-94.
The motion for new trial was heard on May 16, 2017, and the court rendered its
decision on June 12, 2017, overruling the motion. Id. at 209-212.
In its opinion, the trial court made the following findings regarding the Stun-Belt:
During the trial, [Moss] was equipped with an electronic restraint band
(“bandit”). On January 12, 2017, [Moss] received an electric shock from the
bandit. A recess was taken. [Moss] did not move for a mistrial. Instead,
Defendant elected to take a recess and then continue with trial. At the close
of the State’s case, [Moss] made a motion to dismiss on the grounds of
‘cruel and unusual punishment’. This motion was denied and the matter
proceeded to [Moss’] case-in-chief. Closing arguments were held, the jury
was instructed, and the case was submitted for deliberation. The jury
returned a guilty verdict on all counts.
Id. at 209.
b. Motion for Jury Affidavits
On February 22, 2017, Moss filed a motion to obtain jury affidavits. Id. at 197.
Following a hearing on February 27, 2017, the trial court granted the motion for jury
affidavits and ordered the clerk to provide jury contact information to defense counsel. Id.
at 200-01.
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At a hearing on May 16, 2017, Moss’ counsel argued that he had obtained verbal
statements from at least two jurors indicating they believed Moss had been “tased” during
the Shock Incident and that he was “in custody.” Filing No. 10-19 at 102. However, he
contended that these jurors later refused to provide written statements or to otherwise
respond to such requests after they were contacted by the State. Id. at 103. He further
argued that the State had sent out affidavits to about five jurors before Moss was given
juror contact information, appearing to allege the State had tampered with or otherwise
inappropriately attempted to influence them. Id. The court took the matter under
advisement but declined to address the issue further when issuing its decision on the
motion for new trial.
D. Direct Appeal
On direct appeal Moss, represented by new counsel, appealed his convictions and
sentences to the Nebraska Court of Appeals. Filing No. 10-1. Moss argued that he
received ineffective assistance of counsel and that the trial court erred in (1) failing to
grant his motion for discharge for denial of his statutory and constitutional rights to a
speedy trial, (2) failing to grant his motion to dismiss for the spoliation and destruction of
the [P]hone, (3) failing to grant a mistrial, admonish the jury, or otherwise rectify the
prejudice resulting from being shocked by the Stun-Belt, (4) failing to grant a directed
verdict due to insufficient evidence, (5) failing to grant him a term of probation, and (6)
imposing an excessive sentence. Filing No. 10-5 (the “Direct Appeal”). The Nebraska
Court of Appeals found that the record on direct appeal was insufficient to address his
ineffective assistance of counsel claims relating to the Stun-Belt, cell phone records, and
a failure to disclose potential witness Aurterburn. Filing No. 10-3 at 14-15. The court
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rejected the remaining claims of trial court error in the Direct Appeal and affirmed Moss’
convictions and sentences. See Id.
Moss petitioned to the Nebraska Supreme Court for further review, raising the
same arguments as in his Direct Appeal. Filing No. 10-7 at 1, 4-13. The Nebraska
Supreme Court summarily denied Moss’ request for further review on August 7, 2018.
Filing No. 10-1 at 4.
E. Postconviction Motion
On August 22, 2019, Moss filed a timely pro se motion for postconviction relief (the
“PCM”), claiming that trial counsel was ineffective for (1) failing to request a hearing or
otherwise object to Moss’ wearing the Stun-Belt during trial, (2) failing to request an
instruction or admonishment to the jury regarding the use of the Stun-Belt at trial, (3)
failing to move for a mistrial due to the use of the Stun-Belt in the jury’s presence, (4)
failing to offer Jennifer York’s testimony regarding the destruction of the [P]hone, (5)
failing to provide a meaningful defense, (6) failing to admit Moss’ cell phone records which
established the victim had contacted him after the charges were filed, contradicting the
victim’s testimony, (7) failing to properly document the exculpatory nature of the cell
phone calls being sought from Moss’ [P]hone, (8) failing to disclose witnesses Aurterburn
and Pollard in discovery precluding their testimony at his trial, (9) failing to serve out of
state witness Pollard to compel his testimony at Moss’ trial, (10) failing to make an offer
of proof regarding the testimony of Aurterburn and Pollard, (11) failing to call Jennifer
Hessig (“Hessig”) as a witness regarding her attempts to obtain Moss’ [P]hone PIN
number, and (12) failing to withdraw as counsel and testify regarding the lack of request
for Moss’ [P]hone PIN by the prosecution. Filing No. 10-13 at 3-21. He also claimed that
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the cumulative effect of these alleged errors denied him effective assistance of counsel.
Id. at 21. Moss requested an evidentiary hearing, the ability to take the deposition of his
counsel, Alan Martin, and others unnamed, and “such other evidence as allowed and
provided by law” and any other relief the court deems required “by justice and equity.” Id.
In a written order filed August 31, 2017, the state district court rejected each of
Moss’ claims and denied his request for an evidentiary hearing. Id. at 24-32. The court
also denied his request for appointment of counsel as moot. Id. at 32.
Moss appealed the decision of the district court denying his PCM, which was
denied by the Nebraska Court of Appeals on July 28, 2020. Filing No. 10-4. Following
the decision, Moss, pro se, filed a petition for further review on August 25, 2020 (the “PCM
PFR”), Filing No. 10-11, which was summarily denied, see Filing No. 10-2 at 4.
F. Habeas Petition
Moss filed his Petition for Writ of Habeas Corpus in this court on November 12,
2020. Filing No. 1. In response to the Petition, Respondent filed an Answer, Filing No.
13, a brief in support, Filing No. 14, and state court records, Filing No. 10 and Filing No.
54. Moss filed a brief, Filing No. 18, and a motion for second reply brief, Filing No. 19,
which was denied by this Court, Filing No. 20.
III. OVERVIEW OF APPLICABLE LAW
Pursuant to 28 U.S.C. § 2254(a), a federal district court is prohibited from
entertaining a petition for writ of habeas corpus “in behalf of a person in custody pursuant
to the judgment of a State court” unless the petitioner alleges “he is in custody in violation
of the Constitution or laws or treaties of the United States.” In other words, this Court's
review of habeas claims is limited to federal constitutional questions. Moreover, habeas
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relief is available only when a claim adjudicated on the merits in state court resulted in a
decision that (1) “was contrary to, or involved an unreasonable application of, clearly
established federal law as determined by the Supreme Court,” or (2) “was based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” Nicklasson v. Roper, 491 F.3d 830, 833 (8th Cir. 2007) (emphasis
added) (citing 28 U.S.C. § 2254(d)).
Conversely, federal review of a habeas petition is barred when a federal habeas
petitioner failed to exhaust his claims by giving them a full round of review in the state
courts or if the state court dismisses or rejects a prisoner's claims on independent and
adequate state grounds unless a petitioner can demonstrate either (1) cause and
prejudice or (2) actual innocence. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
IV. DISCUSSION
A. Claim One
At the center of Moss’ first claim is the use of the Stun-Belt as a means of physical
restraint that Moss was required to wear throughout his trial. Prior to Moss presenting his
defense, the Stun-Belt delivered a shock to Moss in the jury’s presence while Moss was
seated next to his counsel during a government witness’ testimony. Filing No. 1 at 5;
Filing No. 10-17 at 136-38. Following the Shock Incident, the Court required Moss to be
reaffixed with a Stun-Belt10 and continue wearing it for the remainder of his trial (including
during Moss’ own testimony). It is both the Shock Incident and the use of the Stun-Belt
generally that form the basis for Moss’ claims in Claim One.
10 Although Moss submits he was required to wear the same Stun-Belt which shocked him, see Filing No.
1 at 25, it is unclear from the record whether the Stun-Belt utilized after the Shock Incident was the same
one that delivered the shock or if a new Stun-Belt was affixed. Ultimately it is unnecessary for this Court to
resolve this issue to render a decision here.
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In the Court’s summary of claims, Claim One was separated into five subparts,
with Subparts One and Three addressing alleged trial court error, Subparts Two and Four
addressing alleged trial counsel error, and Subpart Five addressing alleged error of direct
appellate counsel. Filing No. 6 at 1. Respondent declined to address the merits of any
of the Ground One Subparts, arguing instead that all of Claim One is procedurally
defaulted. See Filing No. 14 at 16-21. As Respondent did not elaborate, the Court
construes Respondent’s position as arguing that Subparts Two and Four are procedurally
defaulted because the state appellate court denied these claims based on an independent
and adequate procedural state ground,11 and the substance of Subparts One, Three, and
Five were never fairly presented to the state courts (and can no longer be presented
under Nebraska law), rendering them exhausted via anticipatory procedural default. See
Filing No. 14 at 16, 21.
1. Procedural Default and Exhaustion
Before a federal court can consider the merits of a habeas claim, a federal habeas
petitioner must comply with the exhaustion requirement of section 2254(b).12 Where a
state prisoner fails to take advantage of an available opportunity to litigate a claim in state
court, the problem is a failure to exhaust. See, e.g., Wainwright v. Sykes, 433 U.S. 72
(1977). The United States Supreme Court has explained the habeas exhaustion
requirement as follows:
11 Subparts Two and Four were first presented to the state courts in Moss’ Direct Appeal but the court
declined to address either claim citing that the record was insufficient to address the claims. Filing No. 10-
13 at 13-14. Moss then included them in his PCM, which was ultimately denied without the granting of an
evidentiary hearing on a state procedural ground. Filing No. 14 at 16-20.
12 A federal writ of habeas corpus from an inmate in state custody shall not be granted unless: 1) the inmate
has exhausted his legal remedies in the state courts; 2) state corrective processes are absent; or 3)
circumstances render such processes insufficient to protect the individual’s rights. 28 U.S.C. § 2254(b)(1).
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Because the exhaustion doctrine is designed to give the state courts a full
and fair opportunity to resolve federal constitutional claims before those
claims are presented to the federal courts ... state prisoners must give the
state courts one full opportunity to resolve any constitutional issues by
invoking one complete round of the State's established appellate review
process.
O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
The exhaustion requirement is satisfied when “the federal claim has been fairly
presented to the state courts.” Picard v. Connor, 404 U.S. 270, 275 (1971) (emphasis
added). The United States Supreme Court described the connection between fair
presentment and exhaustion as follows:
Before seeking a federal writ of habeas corpus, a state prisoner must
exhaust available state remedies, thereby giving the State the opportunity
to pass upon and correct alleged violations of its prisoners' federal rights.
To provide the State with the necessary “opportunity,” the prisoner must
“fairly present” his claim in each appropriate state court ... thereby alerting
that court to the federal nature of the claim.
Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks and citations omitted).
In a nutshell, only when the state courts have been given a full opportunity to address the
substance of a claim set forth in a federal habeas petition (via a petitioner’s invoking one
complete round of the state’s established appellate review process) is the exhaustion
requirement fulfilled in a way that allows a federal habeas court to consider the claim’s
merits. Boerckel 526 U.S. at 842–45; see also Fisher v. Texas, 169 F.3d 295, 302 (5th
Cir. 1999) (citation omitted).
To apply the independent and adequate procedural default doctrine, the state court
must explicitly rely on a state procedural rule to deny the petitioner relief. See Ylst v.
Nunnemaker, 501 U.S. 797 (1991); Harris v. Reed, 489 U.S. 255, 259 (1989). Then, if
“the state appellate court declined to address [the claim or claims at issue] because the
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petitioner failed to meet a state procedural requirement constituting an ‘independent and
adequate state ground,’” federal habeas courts may not consider the claim even if
otherwise reviewable. Crawford v. Minnesota, 498 F.3d 851, 854 (8th Cir. 2007) (quoting
Coleman, 501 U.S. at 730).
With these concepts in mind, this Court must first determine whether any of
Subparts One, Three, and Five were exhausted by fair presentation to the state courts
and are, thus, reviewable by this Court on their merits, or if they are anticipatorily
procedurally defaulted and outside the scope of review. As to Subparts Two and Four
(which were fairly presented to the Nebraska state courts but were denied review and an
evidentiary hearing based on a state procedural rule), see Filing No. 14 at 16-20, the
Court must determine if they are procedurally defaulted and beyond the scope of review
here via application of the independent and adequate state law doctrine. Only if a Subpart
is not procedurally defaulted13 shall this Court move onto a review of a Subpart’s merits.
a. Fair presentment – Subparts One, Three, and Five
A claim brought in a federal habeas proceeding need not be “an exact duplicate of
the one raised in the state court proceeding” to be fairly presented. Ward v. Norris, 577
F.3d 925, 935 (8th Cir. 2009) (internal quotation omitted). Fair presentment in conjunction
with the exhaustion doctrine has been described as requiring presenting the state court
system “with the same facts and legal theory upon which the petitioner bases his current
assertions.” Ruiz v. Quarterman, 460 F.3d 638, 643 (5th Cir. 2006) (citing Picard, 404
13 While a procedural default may be excused, see, e.g., Torres v. Jeffreys, No. 4:17CV3078, 2025 WL
579130, at *1 (D. Neb. Feb. 21, 2025), aff'd, No. 4:17CV3078, 2025 WL 1042557 (D. Neb. Apr. 8, 2025)
(citing Bracy v. Gramley, 520 U.S. 899, 904 (1997); Shinn v. Ramirez, 596 U.S. 366 (2022); Williams, 529
U.S. 420)), Moss makes no such argument. Therefore, this Court shall not address the excuse of
procedural default doctrine further.
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U.S. at 275-77). And a state court must be “sufficiently alerted to the federal constitutional
nature of the issue to permit it to resolve that issue on a federal basis.” McDowell v.
Lemke, 737 F.3d 476, 482 (7th Cir. 2013) (quoting Ellsworth v. Levenhagen, 248 F.3d
634, 639 (7th Cir. 2001)).
To sufficiently alert does not require extensive elaboration:
A litigant wishing to raise a federal issue can easily indicate the federal law
basis for his claim in a state-court petition or brief, for example, by citing in
conjunction with the claim the federal source of law on which he relies or a
case deciding such a claim on federal grounds, or by simply labeling the
claim “federal.”
Reese, 541 U.S. at 32.
And, while a federal claim must not contain “significant additional facts[,] . . . closely
related claims containing an arguable factual commonality may be reviewed.” Ward, 577
F.3d at 935 (quoting Anderson v. Groose, 106 F.3d 242, 245 (8th Cir. 1997) (internal
quotations omitted); see also Howard v. O'Sullivan, 185 F.3d 721, 725 (7th Cir.1999)
(explaining that to be fairly presented, the claims and arguments in a federal habeas need
not be identical, but a petitioner must give state courts a meaningful opportunity to pass
upon the substance of the claims later pressed in federal court). To summarize, fair
presentment requires a petitioner to “present the same legal and factual bases to the
federal courts that were presented to the state courts.” Ward, 577 F.3d at 935 (citing
Anderson, 106 F.3d at 245).
Importantly, it is the briefs of a federal petitioner to the state courts that sets the
stage for whether a claim has been fairly presented, not the state court’s interpretation of
the claim (or the failure of the state courts to address it). Dye v. Hofbauer, 546 U.S. 1, 4
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(2005). Therefore, this Court must review Moss’ state court briefings to determine if
Subparts One, Three, and/or Five were exhausted via fair presentment.
i. Subpart Five – Ineffective assistance of appellate counsel
Moss raises a claim of ineffective assistance of direct appellate counsel in his
Petition but does not expound upon the claim, requesting this Court consider errors
relating to “[a]ny and all issues brought up in any . . . post conviction [motion].” Filing No.
1 at 5, 62. Upon review of Moss’ PCM briefing,14 there is no reference to ineffective
assistance of appellate counsel. See Filing No. 10-8 (no mention of any direct appellate
counsel errors); Filing No. 10-10 (same). As Moss could have raised such a claim in his
PCM but failed to do so, he never presented his Subpart Five claim to the state courts,
and, as the time to bring such a claim has passed,15 it is procedurally defaulted and
beyond the scope of this Court’s review.
ii. Subparts One and Three – Trial court error
Subparts One and Three both address claims of trial court error relating to the use
of the Stun-Belt and the Shock Incident, but, unlike Subpart Five, Moss did allege trial
14 In Nebraska, when raising claims that direct appellate counsel (who in Moss’ case was different from his
trial counsel) was constitutionally ineffective, such claims are appropriately brought in the first
postconviction motion filed. United States v. Davis, 406 F.3d 505, 510 (8th Cir. 2005).
15 Under Nebraska law, you don’t get two bites of the postconviction apple; that is, “[a]n appellate court will
not entertain a successive motion for postconviction relief unless the motion affirmatively shows on its face
that the basis relied upon for relief was not available at the time the movant filed the prior motion.” State v.
Ortiz, 670 N.W.2d 788, 792 (Neb. 2003). A person seeking postconviction relief must present his or her
claim to the district court or the Nebraska appellate courts will not consider the claim on appeal. State v.
Deckard, 722 N.W.2d 55, 63 (Neb. 2006) (denying postconviction relief in a murder case and stating: “An
appellate court will not consider as an assignment of error a question not presented to the district court for
disposition through a defendant’s motion for postconviction relief.”). Similarly, on appeal, the appealing
party must both assign the specific error and specifically argue that error in the brief. Otherwise, the claim
is defaulted under Nebraska law. State v. Henry, 875 N.W.2d 374, 407 (Neb. 2016) (stating an alleged
error must be both specifically assigned and specifically argued in the brief of the party asserting the error
to be considered by an appellate court). As Moss filed a postconviction motion and could have, but did not,
allege any claims of ineffective assistance of appellate counsel, see Filing No. 10-8; Filing No. 10-10, he is
precluded from doing so now under Nebraska law.
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court error relating to the Stun-Belt and the Shock Incident in his Direct Appeal. See
Filing No. 10-5 at 26-28, 36-41. To the extent Respondent’s position is that Subparts One
and Three are not the same claims as those Moss raised in his Direct Appeal and
therefore were not “fairly presented” to the state courts and are now procedurally
defaulted, this Court disagrees with Respondent in part.
In his Direct Appeal, Moss clearly raised state law claims of trial court error for
failing to declare a mistrial or issue curative instructions following the Shock Incident
under state law.16 However, a review of Moss’ Direct Appeal establishes that state law
claims of trial court error were not the only trial court error claims Moss asserted, although
they were the only ones the Nebraska courts addressed.
It is without question that Moss’ direct appellate brief was not well crafted. The
claims and factual assertions addressing trial court error and ineffective assistance of trial
counsel relating to the Stun-Belt/Shock Incident are scattered throughout his Direct
Appeal briefing, often in long rambling passages littered with seemingly unrelated or
unnecessary information, supposition, conclusory statements, and somewhat haphazard
citation to state and federal case law. See Filing No. 10-5. Fortunately for Moss, the lack
of succinct presentation is not necessarily fatal to obtaining review by this Court. See,
e.g., Al'Faro v. Cullen, No. C 08-4295 SI PR, 2010 WL 4690873, at *2 (N.D. Cal. Nov. 10,
2010) (“the exhaustion analysis focuses less on the quality of the presentation and more
on whether the information is present somewhere in the [state court] brief.”).
16 Moss does not appear to raise the same state law claims in his Petition as he did in his Direct Appeal.
And, even had he done so, those claims are outside of the scope of this Court’s review as a federal habeas
court has no authority to review a state court's interpretation or application of its own state laws. Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991) (emphasizing that it is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions).
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When reading all portions of Moss’ Direct Appeal briefing addressing the use of
the Stun-Belt and effect of the Shock Incident together, it is surprisingly easy to determine
that the following four overarching issues, arguments, and facts in support discussed
there are largely the same as his claims/supporting arguments in Subparts One and
Three (also overlapping into Subparts Two and Four). The issues raised are: (1) the trial
court should have, but did not, make any findings regarding the use of the Stun-Belt at
any time during Moss’ trial including after the Shock Incident, (2) Moss’ trial counsel
should have, but did not, object to the use of the Stun-Belt at any time during Moss’ trial
including after the Shock Incident, (3) Moss was prejudiced by the use of the Stun-Belt
and the Shock Incident, and (4) neither the trial court nor Moss’ trial counsel did anything
to alleviate or address the prejudice Moss suffered from the use of the Stun-Belt and the
Shock Incident. And, he contends, these failures and the resulting prejudice affected the
outcome of his trial in violation of his rights under the United States Constitution.
Compare Filing No. 10-5 at 26-28, 36-41, with Filing No. 1 at 29-33; Filing No. 18 at 7-11.
Fair presentation of a claim in habeas, however, requires more than presenting
similar facts which could support a constitutional violation—a petitioner must also have
presented similar legal arguments to the state courts. And, “ordinarily a state prisoner
does not ‘fairly present’ a claim to a state court if that court must read beyond a petition
or a brief (or a similar document) that does not alert it to the presence of a federal claim
in order to find material, such as a lower court opinion in the case, that does so.” Reese,
541 U.S. at 32. Instead, the fair presentation requirement is met if a petitioner refers to a
specific federal constitutional right, a particular constitutional provision, or a federal or
state case addressing the constitutional issue. McCall v. Benson, 114 F.3d 754, 757 (8th
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Cir. 1997); White v. Dingle, 267 F. App'x 489, 492 (8th Cir. 2008) (“We have repeatedly
held that a federal habeas petitioner does not fairly present a federal issue to the state
courts unless he refers to a specific federal right or federal constitutional provision, or
cites pertinent case law discussing the federal issue in question.”).
In Moss’ case, he raises many of the same legal arguments in his Petition that he
made in his Direct Appeal, in large part by citing to the Eleventh Circuit case of United
States v. Durham, 287 F.3d 1297, 1307 (11th Cir. 2002) in both.17 See Filing No. 10-5 at
37-39 (citing to Durham and arguing that “the decision to use electronic restraints must
be made by trial courts,” and the use of the Stun-Belt throughout his trial without any
findings regarding its use by the trial court (and without any objection to its use by his
counsel) violated his constitutional right to a fair trial); Filing No. 1 at 22, 25 (citing Durham,
287 F.3d at 1305-06). In Durham, the Eleventh Circuit was asked to determine whether
a trial court abused its discretion in requiring a criminal defendant to wear a stun-style
shackle throughout the guilt phase of his trial. Durham, 287 F.3d at 1303. In rendering
its decision, the Durham court first found that it was the sole discretion of the trial court to
determine whether a criminal defendant may be shackled at trial and then turned to
“principles developed in earlier cases” concerning the use of physical shackles on a
defendant at trial in finding that the trial court had abused its discretion in allowing the use
of a stun-style shackle without making any findings to support its use. Id. at 1304.
Ultimately, the Durham Court held that the use of a stun-style shackle may be necessary
in certain circumstances, but the constitution requires a presiding court to first subject the
17 Of note, in addition to the arguments raised in the Petition and supporting briefing, Moss incorporates
facts and legal argument from his appellate briefs into his Petition. See Filing No. 1 at 33.
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decision to “careful scrutiny,” including a determination of the method in which the stun-
style shackle is to operate, an examination of alternative means of restraint, and a finding
in the record that the stun-style shackle is necessary under the circumstances. Durham,
287 F.3d at 1309.
The “substantial body of case law addressing how other sorts of security measures
affect a defendant's trial rights” considered by the Durham Court addressed long
recognized constitutional principles at issue both when traditional shackles and stun-style
shackles are used. Id. at 1303. The court discussed the various ways the use of stun
style shackles could affect a defendant’s right to a fair trial by looking at the constitutional
principles considered in traditional shackling cases, discussing their effect on the
defendant’s presumption of innocence; id. at 1304 (citing Estelle v. Williams, 425 U.S.
501, 503, (1976); Illinois v. Allen, 397 U.S. 337, 344 (1970); their impact on a defendant’s
Sixth Amendment right to confer with counsel and participate in his own defense, id.
(citing United States v. Brantley, 68 F.3d 1283, 1290–91 (11th Cir. 1995) (citing United
States v. Gagnon, 470 U.S. 522, 526 (1985))); and the detriment to the dignified
administration of criminal justice, id. (citing Allen, 397 U.S. at 344). The Durham Court
concluded that the prejudice caused by the unjustified use of a stun-style shackle at
Durham’s trial had significantly violated those principles and said error was not harmless.
Id. at 1309.
Moss, in addressing the use of the Stun-Belt, argued both on Direct Appeal and in
his Petition the same principles addressed in Durham—that no findings were made by
the trial court regarding the use of the Stun-Belt and that he was prejudiced by the trial
court’s (and his counsel’s) lack of action following the Shock Incident. See Filing No. 1 at
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29-33; Filing No. 18 at 7-11; Filing No. 10-5 at 4, 37-38. While it is clear to this Court that
the trial court error claims are largely the same, Moss’ citation to Durham in both instances
is particularly illustrative of those similarities and should have notified the state courts of
the constitutional nature of these claims. In other words, Moss’ application of
constitutional principles to his claim of trial court error in his Direct Appeal and in his
Petition are the same: constitutional violations regarding the unauthorized and improper
application of the Stun-Belt to his person by the trial court, the failure of the trial court to
justify its use at any time, and the resulting prejudice Moss suffered from the Stun-Belt’s
use improperly influenced the outcome of his trial denying him a fair trial.
For these reasons, to the extent Moss raises claims of trial court error in Subparts
One and Three for failing to make any findings prior to the use of the Stun-Belt, the
prejudicial effect relating to the use of the Stun-Belt and the resulting Shock Incident, for
failing to protect the trial’s integrity by not mitigating the damage to Moss’ constitutionally
protected rights following the Shock Incident, and failing to make any findings regarding
the continued use of the Stun-Belt, those claims were fairly presented to the state
courts.18 The same cannot be said, however, for the remainder of Moss’ Subpart One
and Three arguments.
18 For Moss’ claims to be fairly presented they must have been presented to each level of state court review.
Here, following the denial of claims in his Direct Appeal, Moss petitioned for further review by the Nebraska
Supreme Court. Filing No. 10-7. Moss’ brief to the Nebraska Supreme Court was very short, incorporating
the section of his Direct Appeal addressing the Stun-Belt claims by reference due to briefing page limits.
Filing No. 10-7 at 9. While the Nebraska Supreme Court has opined that incorporation of arguments from
an appellant's brief into a petition for review to the Supreme Court is potentially perilous, it is also not
expressly forbidden. Malone v. Davis, No. A-23-894, 2024 WL 4211935, at *5 (Neb. Ct. App. Sept. 17,
2024) (“the Supreme Court does not encourage incorporating by reference any content material to a party's
argument...”) (citing State v. Garcia, 994 N.W.2d 610 (Neb. 2023); County of Lancaster v. County of Custer,
985 N.W.2d 612 (Neb. 2023)). Therefore, as ultimately the Nebraska Supreme Court denied Moss’ request
for further review on August 7, 2018, see Filing No. 10-1 at 4, these issues were fairly presented to, but not
addressed by, the Nebraska Supreme Court, rendering the Nebraska Court of Appeals decision the last
reasoned opinion addressing these claims.
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Specifically, Moss also argues in Subpart One that the state courts erred by
requiring him to establish prejudice to support his trial court error claims because the
Supreme Court held in Deck that, where a defendant is made to wear shackles visible to
the jury without adequate justification, it becomes the government’s burden to establish
that no prejudice resulted from the use of the shackles—not a petitioner’s burden to
establish prejudice. Filing No. 1 at 25-28, 30-32 (citing Deck v. Missouri, 544 U.S. 622
(2005)). He also reconfigures that same argument into one of plain error, arguing in
Subpart Three that the state courts erred when requiring Moss to establish prejudice
resulting from the trial court’s failure to declare a mistrial in violation of Deck. Id.
While Deck will be discussed at length later in this Memorandum and Order, for
the purposes of proceeding here, it is enough to understand that the Deck Court found
that prejudice is presumed where a trial court utilizes visible shackling without making
findings of fact on the record. See Deck, 544 U.S. at 635. Moss, however, referenced
Durham not Deck in his Direct Appeal. And, as Durham preceded Deck by several years,
no reference to the specific holding in Deck could be inferred from the reference to
Durham regarding presumed prejudice. Therefore, as Moss did not argue or otherwise
cite to any case addressing the holding in Deck regarding a presumption of prejudice in
his briefings to the state courts, that portion of Moss’ current argument was not fairly
presented to the state courts regardless of whether the Stun-Belt’s use was, or became,
known to the jury after the Shock Incident, and is therefore procedurally defaulted and
outside the scope of this Court’s review.
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iii. Independent and adequate – Subparts Two and Four
In Subparts Two and Four, Moss claims his trial counsel was ineffective for failing
to object to his wearing of the Stun-Belt at trial both before and after the Shock-Incident,
and for failing to move for a mistrial or a jury admonishment after the Shock-Incident.
Filing No. 1 at 5. Respondent does not contest that Moss’ claims both in his Direct Appeal
and his PCM are similar to the claims Moss now raises in Subparts Two and Four. Filing
No. 14 at 16. The basis for Respondent’s position is a simple one: he contends that Moss’
claims were denied in his PCM pursuant to Nebraska’s Postconviction Act (the “PCA”)
without the granting of an evidentiary hearing, automatically rendering the denial as based
on a state procedural rule as opposed to a decision on the merits. Id. at 16-21 (citing
Filing No. 10-4 at 4-5). Respondent appears to conclude that such a denial implicates
the independent and adequate procedural law doctrine, automatically resulting in the
procedural default of both Subparts, and precluding review by this Court. Id. at 21.
Moss’ ineffective assistance of counsel claims in Subparts Two and Four first came
before the state courts in his Direct Appeal. See Filing No. 10-5 at 36-40. After the state
appellate court declined to rule on them, Filing No. 10-3 at 13–14, they were again raised
in Moss’ PCM brought pursuant to the PCA, Filing No. 10-8 at 5, 17–38, and were
ultimately denied without an evidentiary hearing under the PCA for failure to properly
allege prejudice, Filing No. 10-4 at 3-5.(citing State v. Dubray, 885 N.W.2d 540 (Neb.
2016)).
Section 29-3001 of the PCA provides in relevant part:
(1) A prisoner in custody under sentence and claiming a right to be released
on the ground that there was such a denial or infringement of the rights of
the prisoner as to render the judgment void or voidable under the
Constitution of this state or the Constitution of the United States, may file a
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verified motion, in the court which imposed such sentence, stating the
grounds relied upon and asking the court to vacate or set aside the
sentence.
(2) Unless the motion and the files and records of the case show to the
satisfaction of the court that the prisoner is entitled to no relief, the court
shall cause notice thereof to be served on the county attorney, grant a
prompt hearing thereon, and determine the issues and make findings of fact
and conclusions of law with respect thereto. If the court finds that there was
such a denial or infringement of the rights of the prisoner as to render the
judgment void or voidable under the Constitution of this state or the
Constitution of the United States, the court shall vacate and set aside the
judgment and shall discharge the prisoner or resentence the prisoner or
grant a new trial as may appear appropriate. . . .
Neb. Rev. Stat. § 29-3001.
While it appears to this Court that the allegations Moss asserted in his PCM
adequately plead prejudice in relation to Subparts Two and Four, unfortunately for Moss,
the opinion of this Court is irrelevant in this instance. As discussed previously, a state
ground is independent of federal law if it does not depend on the merits of a petitioner's
claim. And, to the extent a Nebraska court must always examine the substance of the
underlying claim to determine whether it is sufficiently pleaded, the denial of an
evidentiary hearing due to failure to meet Nebraska’s pleading standards constitutes an
adequate and independent state law ground, even when it is applied to federal claims
regarding ineffective assistance of counsel. See, e.g., Whyte v. Winkleski, 34 F.4th 617,
624 (7th Cir. 2022) (discussing application of Wisconsin pleading standards in relation to
the independent and adequate state law doctrine).
Moreover, while an argument could be made that the denial of these Subparts in
the state appellate court’s ruling on the PCM constituted an alternative ruling on the
merits, review is foreclosed when adequate and independent state law grounds are
sufficient to resolve the dispute. Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) (“[A] state
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court need not fear reaching the merits of a federal claim in an alternative holding. By its
very definition, the adequate and independent state ground doctrine requires the federal
court to honor a state holding that is a sufficient basis for the state court's judgment, even
when the state court also relies on federal law.”).
For these reasons, Petitioner is not entitled to relief on Subparts Two or Four as
they are procedurally defaulted pursuant to the independent and adequate state law
doctrine and their merits are therefore outside the scope of review of this Court.
2. Standard of Review – Subparts One and Three
When a claim is exhausted, the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) provides that a federal habeas petition based on a state court conviction
“shall not be granted with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established Federal law ...
[or] resulted in a decision that was based on an unreasonable determination of the
facts…“. 28 U.S.C. § 2254(d)(1)-(2). And, “[w]hen a state court has ruled on the merits
of a state prisoner's claim, a federal court cannot grant relief without first applying both
the test [the Supreme] Court outlined in Brecht and the one Congress prescribed in
AEDPA.” Brown v. Davenport, 596 U.S. 118, 122 (2022) (citing Brecht v. Abrahamson,
507 U.S. 619, 623 (1993)). Under Brecht, the Court must assess whether the error at
issue “had substantial and injurious effect or influence in determining the jury's verdict.”
Brecht, 507 U.S. at 623 (internal quotation marks omitted). Therefore, for a federal
habeas petitioner to succeed he generally must establish both that the state courts erred
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under § 2254(d) and that the error was not “harmless” under Brecht. Davenport, 596 U.S.
at 112.
For the deferential standard of review in § 2254(d) to apply, however, the habeas
claim must have been “adjudicated on the merits in State court proceedings.” 28 U.S.C.
§ 2254(d). Here, because Moss exhausted the previously discussed portions of Subparts
One and Three via fair presentation, but those claims were not adjudicated on the merits
by any Nebraska court,19 the AEDPA standard does not apply. Davenport, 596 U.S. at
137 (citing Fry v. Pliler, 551 U.S. 112 (2007)); see also Reagan v. Norris, 365 F.3d 616,
621 (8th Cir. 2004) (stating that because claim was not brought before state courts, there
was no adjudication on merits and thus § 2254(d) was inapplicable). Rather, under these
circumstances, such a claim is reviewed by a federal court de novo. Cone v. Bell, 556
U.S. 449, 472 (2009) (citing Rompilla v. Beard, 545 U.S. 374, 390 (2005) (citing Wiggins
v. Smith, 539 U.S. 510, 534 (2003) (stating federal court review “is not circumscribed by
a state court conclusion” when the state court did not reach the merits of a federal claim))).
As Subparts One and Three are exhausted but were not addressed on their merits,
this Court now proceeds to their de novo review applying the Brecht standard.
19 Although AEDPA deference does not apply to these claims, to the extent the state appellate court revived
any portion of these claims in its decision addressing Moss’ PCM, the state court misapplied federal law in
finding that the crimes for which Moss was charged alone could be used as a basis to support his shackling.
See Filing No. 10-4 at 5 (describing a jury’s knowledge of a defendant’s shackling as simply “call[ing] the
jury’s attention to what it already knew – that the defendant was charged with a serious crime.”). Such is
not the case. The nature of the crime for which a defendant is charged alone does not justify shackling
without explanation. See, e.g., Lakin, 431 F.3d at 965 (in discussing the Deck decision the Court explained
that “[a] per se rule that permitted shackling those defendant's [sic] merely charged with certain crimes such
as escape or murder would run afoul of the individualized determination that the due process clause
requires.”); see also Larson v. Palmateer, 515 F.3d 1057, 1064 (9th Cir. 2008) (a court may consider the
nature of the crime for which a defendant was charged but only along with other factors when determining
whether shackling is appropriate). Therefore, even under ADEPA the Nebraska Appellate Court’s attempt
at justifying Moss’ otherwise unjustified shackling was erroneous.
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3. Analysis – Subparts One and Three
Trial court error claims relating to the use of shackles at trial are reviewed for an
abuse of discretion. Hellum v. Warden, U.S. Penitentiary Leavenworth, 28 F.3d 903, 907
(8th Cir. 1994) (citing Estelle (Williams), 425 U.S. at 505; Elledge v. Dugger, 823 F.2d
1439, 1451 (11th Cir. 1987); United States v. Ferguson, 758 F.2d 843, 854 (2d Cir. 1985),
cert. denied, 474 U.S. 1032 (1985)). Only if an abuse of discretion is found does this
Court need to consider whether the use of the Stun-Belt was prejudicial to Moss. And, if
prejudice is found, the Court must then consider whether the prejudice Moss suffered was
harmless or if it had a “substantial and injurious effect or influence in determining the jury's
verdict.” Brecht, 507 U.S. at 623.
For the reasons that follow, this Court finds that the trial court’s failure to make any
findings regarding the basis for Moss’ shackling at anytime during his trial constituted an
abuse of discretion and that the use of the Stun-Belt was prejudicial to Moss, impacting
both his presumption of innocence before the jury and his Sixth Amendment rights, as
well as resulting in a wholesale failure to ensure the decorum of the courtroom, see e.g.
Deck, 544 U.S. at 635 (discussing the prejudicial effect of shackles on a jury, a defendant,
and the court process), and had a “substantial and injurious effect” on the jury's verdict.
As such, this Court finds that the writ should be granted as to Subparts One and Three.
a. Abuse of Discretion
A trial judge retains both the discretion to restrain a defendant with shackles and
the responsibility to ensure the progression and safety of a trial. Lampkins v. Thompson,
337 F.3d 1009, 1016 (8th Cir. 2003) (citing United States v. Darden, 70 F.3d 1507, 1533
(8th Cir.1995)). However, a trial court cannot do so without limitation. A criminal
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defendant is entitled to a fair trial, as guaranteed by the Sixth and Fourteenth
Amendments. Hellum, 28 F.3d at 907 (citing Holbrook v. Flynn, 475 U.S. 560, 567 (1986);
Estelle (Williams), 425 U.S. at 503). The rule forbidding shackling during the guilt phase
of a trial absent “the presence of a special need” is a “long held and consistently
acknowledged constitutional principle.”20 Deck, 544 U.S. at 626. Consequently, even
though a trial court has the discretion to utilize shackles, that discretion is far from
unrestricted.
“Measures which single out a defendant as a particularly dangerous or guilty
person,” such as shackling, have been deemed, in some circumstances, prejudicial and,
in others, as “‘inherently prejudicial.’” Hellum, 28 F.3d at 907 (citing Estelle (Williams),
425 U.S. at 505; Elledge, 823 F.2d at 1451; Ferguson, 758 F.2d at 854, cert. denied, 474
U.S. 1032 (1985), and quoting Holbrook, 475 U.S. at 568-69). However, “[w]hile it is
beyond dispute that a court must be cognizant of any act that may undermine the fairness
of the judicial process, it is well-settled that it may be necessary in some instances to
restrain a defendant.” Amrine v. Bowersox, No. 90-0940-CV-W-2, 1996 WL 33370754,
at *22 (W.D. Mo. Feb. 26, 1996) (citing Allen, 397 U.S. at 344). Of note, the use of
shackles is generally considered a last resort, and their use is consistent with due process
only when a trial judge determines that the shackle is justified by an essential state
20 The Deck Court acknowledged that while lower courts have “disagreed about the specific procedural
steps a trial court must take prior to shackling, about the amount and type of evidence a trial court must
establish to justify the use of shackles, and about what forms of prejudice might warrant a new trial, [ ] they
have not questioned the basic principle” that “during the guilt phase of a trial, a criminal defendant has a
right to remain free of physical restraints that are visible to the jury; that the right has a constitutional
dimension; but that the right may be overcome in a particular instance by essential state interests such as
physical security, escape prevention, or courtroom decorum.” Deck, 544 U.S. at 629. Therefore, a trial
court must consider the use of shackles in conjunction with essential state interests particular to each
defendant.
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interest specific to a particular trial. Deck, 544 U.S. at 629, 632; see also Holbrook, 475
U.S. at 568–69; Allen, 397 U.S. at 344.
The test for determining whether the use of shackles at a criminal trial21 results in
an abuse of discretion starts with determining whether their use was justified by
furtherance of an “essential state interest.” Hellum, 28 F.3d at 907 (citing Estelle
(Williams), 425 U.S. at 504; Holbrook, 475 U.S. at 568)). Generally, when reviewing a
trial court’s decision to use additional security measures, the question is “whether the
grounds for additional security which existed at the time the security measures were taken
justify any prejudice which they created.” Hellum, 28 F.3d at 907 (citing Gilmore v.
Armontrout, 861 F.2d 1961, 1071 (8th Cir. 1988); Wilson v. McCarthy, 770 F.2d 1482,
1484 (9th Cir. 1985); Harrell v. Israel, 672 F.2d 632, 636 (7th Cir. 1982); Payne v. Smith,
667 F.2d 541, 544 (6th Cir. 1981), cert. denied, 456 U.S. 932 [ ] (1982)). And, the burden
of affirmatively demonstrating prejudice from “additional” security measures generally
rests with the party challenging those measures. Hellum, 28 F.3d at 907.
“[T]he factors that courts have traditionally relied on in gauging potential security
problems and the risk of escape at trial” must be taken into account when determining if
the use of shackles is appropriate. Deck, 544 U.S. at 629. The Sixth Circuit, for example,
has articulated such factors to include: “(1) the defendant's record, his temperament, and
the desperateness of his situation; (2) the state of both the courtroom and the courthouse;
(3) the defendant's physical condition; and (4) whether there is a less prejudicial but
21 Importantly, in the Eighth Circuit the use of stun-style shackles as an additional security measure are no
different than regular shackles to the extent they also require “close judicial scrutiny, because of [their]
potentially disruptive effect on the defendant's rights and the fairness of the factfinding process.” See United
States v. Honken, 541 F.3d 1146, 1164 (8th Cir. 2008) (quoting United States v. Honken, 378 F.Supp.2d
1010, 1037 (N.D. Iowa 2004)).
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adequate means of providing security.” Lakin v. Stine, 431 F.3d 959, 964 (6th Cir. 2005)
(citing United States v. Waagner, 104 Fed.Appx. 521, 526-27 (6th Cir. 2004) (unpublished
opinion) (citing Kennedy v. Cardwell, 487 F.2d 101, 110-11 (6th Cir. 1973))).
In Moss’ case, the trial court’s actions relating to the use of the Stun-Belt
throughout his trial, and especially after the Shock Incident, are extremely troubling. It is
undisputed that Moss was required to wear the Stun-Belt throughout his trial, that the trial
court failed to articulate any reason for its use at any time, and that the initial use of the
Stun-Belt was solely due to local law enforcement policy or some other unstated policy
unrelated to Moss.22 See Filing No. 1 at 5 (alleging Moss was forced by “police” to wear
the Stun-Belt); Filing No. 10-8 at 25 (alleging it was the policy of the Sarpy County Sheriff’s
Department to affix and use the Stun-Belt at the beginning of Moss’ trial); Filing No. 59 at
1 (agreeing with Moss that the “Stun-Belt was affixed to [Moss] at his trial due to a policy
other than a policy instituted by the trial court”).
The acquiescence of a trial court to courtroom law enforcement security policy (or
any other policy) requiring shackling without any inquiry into the individualized necessity
for their use amounts to an abuse of discretion. See Ray v. Robinson, 640 F.2d 474, 478
(3d Cir. 1981) (“If a district court fails to exercise its discretion, that is itself an abuse of
discretion.”)). “While [a] trial court may rely ‘heavily’ on [law enforcement/courtroom
security] in evaluating the appropriate security measures to take with a given prisoner,
the court bears the ultimate responsibility for that determination and may not delegate the
22 While it is unclear whether the trial court’s decision to re-shackle Moss with a Stun-Belt following the
Shock-Incident was done pursuant to law enforcement policy, it is clear from the record that it was the trial
court’s decision to require continued use of the Stun-Belt after the Shock Incident. See Filing No. 10-17 at
138 (the trial court confirmed Moss was reaffixed with the Stun-Belt following the Shock Incident prior to
resuming trial).
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decision to shackle an inmate to the marshals.” Woods v. Thieret, 5 F.3d 244, 248 (7th
Cir. 1993); Wilber v. Thurmer, 476 F. Supp. 3d 785, 802–03 (E.D. Wis. 2020) (citing Lopez
v. Thurmer, 573 F.3d 484, 493 n. 4 (7th Cir. 2009) (“the actual due process decision must
be made by the judicial officer. Law enforcement officials hardly can be said to be neutral
in balancing the rights of the defendant against their own view of necessary security
measures.”)). “A corrections officer's preference does not excuse [a trial court] from
conducting the appropriate inquiry. Nor does the convenience of shackling a defendant
justify its use.” Lakin, 431 F.3d at 964 (citing Estelle (Williams), 425 U.S. at 505).
Therefore, “[a]lthough a trial court might find a corrections officer's opinion highly relevant
to answering the ultimate inquiry as to whether shackling is necessary in a particular case,
an individualized determination under the due process clause requires more than rubber
stamping that request.” Id. For these reasons, to the extent the trial court simply
acquiesced to the policies of law enforcement personnel (or some other external policy
unrelated to Moss’ individualized circumstances) in requiring Moss to be affixed with the
Stun-Belt, such a failure to exercise any discretion is an abuse of discretion.
And, even giving the trial court the benefit of the doubt in considering whether
circumstances existed which could have allowed the trial court to shackle Moss during
his trial,23 a review of the record and the concurrence of the parties establish that no such
basis existed. Moss argues, and Respondent does not contest, that he did not have any
history of escape attempts, disruption, or other danger that would suggest the need for
any shackles at the time of his trial, let alone the need to re-shackle him after the Shock
23 Generally, “the absence of such a finding cannot be cured by the reviewing court's after-the-fact
justifications”; however, there may be an “’‘exceptional case where the record itself makes clear that there
are indisputably good reasons for shackling.’” Larson, 515 F.3d at 1063 (quoting Deck, 544 U.S. at 635).
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Incident. Filing No. 18 at 9. There is also no indication in the record that the physical
state of the courtroom and/or the courthouse necessitated such restraint.
The trial court’s decision to continue to utilize the Stun-Belt after the Shock Incident
fares no better, especially considering counsel for both Moss and the State had concerns
about prejudice against Moss resulting from the Shock Incident. See Filing No. 10-17 at
149-51. Indeed, it is this Court’s opinion that the use of the Stun-Belt following the Shock
Incident is precisely the type of prejudicial event which requires a court to further justify a
shackle’s use instead of continuing its unjustified use (especially as Moss did not display
any change in behavior nor was there any change in any other circumstances which
would have necessitated shackling). As such, because the trial court failed to address
the Stun-Belt’s continued use, the full burden of the trial court’s failure to consider the
implications of the Shock Incident and the continued use of the Stun-Belt was borne by
Moss.
Ultimately, as a trial court cannot simply abdicate its discretion to utilize shackles
to local law enforcement, and as no state-justified reason existed in the record for the use
of the Stun-Belt either before or after the Shock Incident, the trial court clearly abused its
discretion in shackling Moss with the Stun-Belt from the beginning of his trial. Further,
even if the trial court had not abdicated its discretion to law enforcement (or some other
unknown policy) at the beginning of Moss’ trial, the fact that the trial court did not attempt
to justify the Stun-Belt’s use after the Shock Incident or address any potential prejudice
resulting from it, and instead required Moss to be reaffixed with the Stun-Belt before trial
continued, is a clear abuse of discretion.
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b. Prejudice
This Court now must determine whether the use of the Stun-Belt and the Shock
Incident created prejudice of a constitutional nature. See Gilmore, 861 F.2d at 1071, cert.
denied, 490 U.S. 1114 (1989). While in Deck the Supreme Court held that where a court
failed to justify the reason for a defendant’s shackling, but still ordered a defendant “to
wear shackles that will be seen by the jury,” the defendant need not establish prejudice
relating to their use,24 Deck, 544 U.S. at 635, this rule does not apply here because, as
previously discussed, Moss failed to cite to Deck or any case articulating such a rule to
the state courts. Nonetheless, Moss’ failure to raise the rule announced in Deck does not
render the Deck Court’s discussion of the governing law and the constitutional principles
when shackles are used at a criminal trial inapplicable.
Deck did not establish in the first instance a constitutional standard for imposition
of shackles, nor has the Supreme Court held that only where shackles are actually seen
by a jury may prejudice result. See, e.g., U.S. v. McKissick, 204 F.3d 1282, 1299 (10th
Cir. 2000) (court will not “presume prejudice” where there was no evidence jurors noticed
a stun-belt but prejudice may still be established); see also Crittenden v. Calderon, No.
CV S-95-1957 FCD/GGH, 2005 WL 8156678, at *5 (E.D. Cal. June 24, 2005), aff'd sub
nom. Crittenden v. Ayers, 624 F.3d 943 (9th Cir. 2010). Instead, in rendering its decision,
the Deck Court relied on long standing constitutional principle addressing shackling.25
See Deck 544 U.S. at 626.
24 In such circumstances, prejudice to the defendant is presumed and the burden shifts to the government
to “prove ‘beyond a reasonable doubt that the shackling error complained of did not contribute to the verdict
obtained.’” Deck, 544 U.S. at 635 (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).
25 The Court in Deck noted the law has, for many years, forbidden shackling during the guilt phase of a
defendant's trial and that the law permits shackling of a criminal defendant only when a special need exists.
Deck, 544 U.S. at 626 (“[t]he law has long forbidden routine use of visible shackles during the guilt phase.”)
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There can be clearly established Federal law under a “generalized standard.”
Williams v. Taylor, 529 U.S. 362, 382 (2000) (explaining that under the AEDPA, “rules of
law may be sufficiently clear for habeas purposes even when they are expressed in terms
of a generalized standard rather than as a bright-line rule”); see also Taylor v. Withrow,
288 F.3d 846, 852 (6th Cir. 2002) (“the lack of an explicit statement” of a particular rule
by the Supreme Court “is not determinative” of clearly established law, since “[t]he Court
has made clear that its relevant precedents include not only bright-line rules but also the
legal principles and standards flowing from precedent”). And, when the Supreme Court
relies on a legal rule or principle to decide a case, “that [rule or] principle is a ‘holding’ of
the Court.”26 Andrew v. White, 604 U.S. 86 (2025) (citing Lockyer v. Andrade, 538 U.S.
63, 71–72 (2003) (“[C]learly established Federal law ... is the governing legal principle or
principles set forth by the Supreme Court at the time the state court renders its decision.”)
(internal quotation marks omitted)).
(emphasis added) (citing Holbrook, 475 U.S. at 568–569; Allen, 397 U.S. at 343–344). The Court explained
this rule was deeply rooted in federal common law and noted it is an ancient principle that a defendant must
be tried free from restraint unless there is an attendant danger of the defendant escaping. Id. (quoting 4
W. Blackstone, Commentaries on the Laws of England 317 (1769)). Citing to several 19th century and
mid-20th century state court opinions, the Court further stated American courts have historically followed
this ancient rule and quoted an 1895 treatise for the proposition that “one at trial should have the
unrestrained use of his reason, and all advantages, to clear his innocence... Our American courts adhere
pretty closely to this doctrine.” Id. at 626-27 (quoting 1 J. Bishop, New Criminal Procedure § 955, p. 573
(4th ed. 1895)). According to the Court, these earlier courts came to a consensus on a general rule that
shackling should only be permitted if there is a specific reason for doing so. Id. at 627.
26 For example, the Andrew Court found that the “Eighth Amendment principle that a sentence may not be
grossly disproportionate to the offense is clearly established under § 2554(d)(1), even though it arises out
of a thicket of Eighth Amendment jurisprudence and lacks precise contours.” Andrew, 604 U.S. 93 (cleaned
up).
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The determination that a trial court abused its discretion when it decides to shackle
a criminal defendant without an articulated justifiable state interest is based on the legal
principles addressed by Moss, all of which long predate Deck. See, e.g., Lakin, 431 F.3d
at 963 (“[T]he principle that shackling a defendant at trial without an individualized
determination as to its necessity violates the due process clause was clearly established
long before Deck was decided.”) (citing Allen, 397 U.S. 337; Holbrook, 475 U.S. 560).
Therefore, even though the Court in Deck announced a new bright-line rule that a
defendant need not establish prejudice when unjustified shackles able to be seen by the
jury are used, it does not follow from the Court’s discussion of the multiple constitutional
and common law principles at play in shackling cases that no constitutional standard
exists allowing a defendant to establish prejudice in its absence.
As the Deck Court noted when discussing the requirement that there must be
governmental justification for shackling, several principles are at issue: (1) the
presumption that a defendant is innocent until proven guilty; (2) the Sixth Amendment
right to counsel and participation in one's own defense; and (3) the dignity and decorum
of the judicial process, including “the respectful treatment of defendants.” Deck, 544 U.S.
at 630–31. Each principle addresses the same general issue—the wearing of shackles
by a defendant in front of a jury—but focuses on the effect shackles have as related to
three different groups: jurors, defendants, and courts. As there is also no Supreme Court
precedent requiring a federal habeas petitioner to establish any particular principle (or a
combination thereof) relating to shackling, this Court now considers each potential
avenue to establish prejudice and determines that in Moss’ case, the Shock Incident and
his subsequent re-shackling established prejudice relating to all three.
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The first principle focuses on the effect a defendant’s shackling has on a jury’s
ability to presume a criminal defendant’s innocence. The presumption of innocence in
favor of the accused is “the undoubted law, axiomatic and elementary, and its
enforcement lies at the foundation of the administration of our criminal law.” Coffin v.
United States, 156 U.S. 432, 453 (1895). A person accused of a crime is “entitled to have
his guilt or innocence determined solely on the basis of the evidence introduced at trial,
and not on grounds of official suspicion, indictment, continued custody, or other
circumstances not adduced as proof at trial.” Taylor v. Kentucky, 436 U.S. 478, 484–85
(1978) (citing Estelle (Williams), 425 U.S. 501); Smith v. Phillips, 455 U.S. 209, 217 (1982)
(A defendant is entitled to a “jury capable and willing to decide the case solely on the
evidence before it.”).
In Taylor, the United States Supreme Court described the connection between the
presumption of innocence, and the burden of proof jurors must consider when
determining guilt or innocence, as follows:
In a criminal case the term [presumption of innocence] does convey a
special and perhaps useful hint over and above the other form of the rule
about the burden of proof, in that it cautions the jury to put away from their
minds all the suspicion that arises from the arrest, the indictment, and the
arraignment, and to reach their conclusion solely from the legal evidence
adduced. In other words, the rule about burden of proof requires the
prosecution by evidence to convince the jury of the accused's guilt; while
the presumption of innocence, too, requires this, but conveys for the jury a
special and additional caution (which is perhaps only an implied corollary to
the other) to consider, in the material for their belief, nothing but the
evidence, i. e., no surmises based on the present situation of the accused.
436 U.S. at 484–85 (cleaned up) (emphasis added). A defendant’s shackling clearly falls
into the category of an outside influence that the jury must overlook to the best of their
ability when determining guilt or innocence. Id.
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In the event a court “erroneously shackles a defendant, the jury receives a powerful
image contradicting the presumption of innocence.” Hatten v. Quarterman, 570 F.3d 595,
603 (5th Cir. 2009). And, even if even one juror is biased by the sight of shackles,
prejudice can result. See Dyas v. Poole, 317 F.3d 934, 937 (9th Cir. 2003) (citing Parker
v. Gladden, 385 U.S. 363, 366 (1966) (a defendant is “entitled to be tried by 12, not 9 or
even 10, impartial and unprejudiced jurors”)).
Shackles can erode a jury’s ability to presume a defendant’s innocence via
negatively influencing their perception of a defendant’s credibility. Davis v. Mathena, No.
2:12CV92, 2014 WL 1308694, at *25 (E.D. Va. Mar. 27, 2014) (“Even though it might not
have been an explicit or a conscious decision by the jurors, it was likely much easier for
them to believe the testimony of witnesses wearing a badge, than the testimony of Davis,
who was wearing shackles.”). Seeing a defendant in shackles may also affect a jury’s
perception of the character of the defendant in an inevitably negative way. See Deck at
633 (emphasis added) (citing Zant v. Stephens, 462 U.S. 862, 900 (1983) (REHNQUIST,
J. concurring in judgment)). This is so as the use of shackles likely suggests to a jury
that the court itself views the defendant as someone who is dangerous and must be
physically isolated from others in the courtroom. Id. at 630 (citing Holbrook, 475 U.S. at
569; State v. Roberts, 206 A.2d 200, 202 (N.J. App. Div. 1965)). And, if a jury is aware a
defendant is shackled with a stun-style shackle, “the [stun-style shackle] ‘may be even
more prejudicial than handcuffs or leg irons because it implies that unique force is
necessary to control the defendant.’” Durham, 287 F.3d at 1305 (quoting State v. Flieger,
955 P.2d 872, 874 (Wash. App. 1998)).
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Before considering to what extent the jury was aware of Moss’ shackling, it is
important to first address what awareness in the shackling context means. Some courts,
relying on the use of the word “visible” in the Deck decision, focus entirely on whether a
jury saw the defendant’s shackles with their own eyes as the gateway requirement to any
prejudice finding, determining that if a jury did not actually see a defendant’s shackles,
then no jury prejudice exists.27 See, e.g., Williams v. Woodford, 384 F.3d 567, 592–93
(9th Cir. 2004) (“When the jury never saw the defendant's shackles in the courtroom, we
have held that the shackles did not prejudice the defendant's right to a fair trial.”) (citing
Castillo v. Stainer, 983 F.2d 145, 148 (9th Cir. 1992), amended by 997 F.2d 669 (9th Cir.
1993)). The Deck opinion does not match up with such absolute reasoning.
Deck was a criminal defendant sentenced to death for robbing, shooting, and killing
an elderly couple. Deck, 544 U.S. at 624–25. On appeal, the state supreme court upheld
Deck's conviction but set aside his sentence and a new sentencing proceeding was held.
Id. (internal citation omitted). The Deck Court described Deck’s appearance at his second
sentencing as follows:
From the first day of the new proceeding, Deck was shackled with leg irons,
handcuffs, and a belly chain. Before the jury voir dire began, Deck's counsel
objected to the shackles. The objection was overruled. During the voir dire,
Deck's counsel renewed the objection. The objection was again overruled,
the court stating that Deck “has been convicted and will remain in leg irons
27 There is much discussion in state and federal decisions addressing shackling over the use of the word
“visible” in the Deck opinion. Indeed, as noted by the Sixth Circuit, the Court in Deck stressed “at least six
times” that its holding related to “visible” shackles. See Earhart v. Konteh, 589 F.3d 337, 348 (6th Cir.
2009). However, stun-style devices are not invisible and instead are just as capable of being seen by jurors
as leg irons. United States v. Busch, 411 F. App'x 872, 876–77 (6th Cir. 2011) (Reviewing where and how
a stun style shackle was used at a defendant’s trial when determining whether a jury was aware a defendant
was shackled). The difference is that stun-style shackles are typically easier to disguise or hide, making it
less likely a jury is able to see or otherwise perceive their use, as illustrated by the Eighth Circuit’s
discussion of the jury’s awareness of a traditional leg iron in Cole v. Roper, 623 F.3d 1183, 1193 (8th Cir.
2010) (finding that because in Cole’s case the jury was likely not aware Cole was shackled with a knee
restraint style shackle due to its appearance, even though the restraint was potentially visible to the jury,
the knee restraint was not able to cause any jury prejudice) (citing Deck, 544 U.S. at 632).
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and a belly chain.” After the voir dire, Deck's counsel once again objected,
moving to strike the jury panel “because of the fact that Mr. Deck is shackled
in front of the jury and makes them think that he is ... violent today.” The
objection was again overruled, the court stating that his “being shackled
takes any fear out of their minds.” The penalty phase then proceeded with
Deck in shackles. Deck was again sentenced to death.
Id. at 625 (internal citations omitted).
Deck appealed, alleging that his shackling at his second sentencing violated both
Missouri law and the Federal Constitution. The state, however, argued that Deck’s
wearing of shackles at his sentencing did not violate due process because “the record
lacks evidence that the jury saw the restraints.” Id. (emphasis added).
The Court found the state’s argument unconvincing, first explaining that the state
court did not find the jury was unaware of Deck’s shackles and instead simply did not
make any findings regarding the extent the jury was aware of them. Id. at 634 (emphasis
added). The Court then focused on the portion of the trial court record which made clear
that the jury was aware of Deck’s shackles without having to establish the jury saw them
with their eyes: the oral discussion between counsel and the court about Deck’s shackling
in front of the jury. Id. This discussion, coupled with the fact that Deck was restrained
with shackles capable of being seen by the jury, resulted in the Court’s bright line rule that
“where a court, without adequate justification, orders the defendant to wear shackles that
will be seen by the jury, the defendant need not demonstrate actual prejudice to make out
a due process violation.” Deck, 544 U.S. at 635. Thus, the Deck decision did not limit
the ability of a shackled defendant to establish prejudice only in instances where shackles
are able to (or were) seen by the eyes of a jury. Instead, a criminal defendant must prove
prejudice to prevail where it is questionable as to whether the shackles were indeed seen
or perceived by jurors. See, e.g., Shirley v. Tegels, 61 F.4th 542, 548 (7th Cir. 2023)
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(Hamilton, J., concurring) (it is a juror’s knowledge or awareness of a defendant’s
shackling, not through which sense it was acquired, which implicates the fundamental
legal principles at issue in courtroom shackling) (citing Deck, 544 U.S. at 630–33).
The position that judicial determinations such as Deck and the principles it relies
upon addressing traditional shackles do not apply to stun-style shackles simply because
Deck, and similar cases like Allen, Estelle (Williams), and Holbrook, involved traditional
shackles is inconsistent with the Court’s recent holding in Andrew discussed supra
because the constitutional principles at issue are the same.28 See Andrew, 604 U.S. at
93. Therefore, while federal habeas courts should not automatically “presume prejudice”
where there is no evidence jurors actually saw a defendant’s shackles, see, e.g.,
McKissick, 204 F.3d at 1299, a defendant may still provide evidence that shackling
undercut the presumption of innocence principle by establishing that the jury was aware
that he was shackled or restrained, see, e.g., United States v. Maness, 112 F. App'x 610,
611 (9th Cir. 2004) (emphasis added) (citing United States v. Collins, 109 F.3d 1413, 1418
(9th Cir. 1997)).
In Moss’ specific circumstances, to claim that the jury was somehow unaware that
Moss was shackled is disingenuous. Many courts have hypothesized that the activation
of a stun-style device alone would automatically alert the jury to its use and prejudice the
defendant. See, e.g., Adams v. Bradshaw, 484 F. Supp. 2d 753, 784 (N.D. Ohio 2007),
28 In the case of stun-style shackles, it is important to note that “[h]owever technologically removed a stun
belt may be from its clanking predecessors, it serves the same incapacitating function and, if perceived by
the jury, will be understood as the modern-day equivalent of manacles.” Stephenson v. Wilson, 629 F.3d
732, 733 (7th Cir. 2011); see also Stephenson v. State, 864 N.E.2d 1022, 1033 (Ind. 2007) (“The use of a
stun belt, if perceived by the jury, produces all of the results that shackling does.”). Indeed, while the use
of concealed shackles tends to lessen the concerns relating to jury bias because a jury is less likely to know
they are being used, their use does not erase such concerns where jury awareness exists.
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aff'd, 817 F.3d 284 (6th Cir. 2016), opinion amended and superseded, 826 F.3d 306 (6th
Cir. 2016), and aff'd, 826 F.3d 306 (6th Cir. 2016); U.S. v. Joseph, 333 F.3d 587, 591 (5th
Cir. 2003) (indicating that while the use of stun-style shackles was not prejudicial where
the jury was unaware of their use, jury prejudice would arise if a stun-style shackle
activated in front the jury) (citing Holbrook, 475 U.S. 568–69). But more importantly,
courts which have addressed actual accidental discharges in front of a jury generally
presume awareness.
For example, the Fifth Circuit in Chavez v. Cockrell described the accidental
discharge of a stun-style shackle during a defendant’s criminal trial as giving the jury a
“momentary glimpse” of the stun-belt via their witnessing its effect even though the device
itself remained unseen. 310 F.3d 805, 809 (5th Cir. 2002) (finding that the prejudice
resulting from the shock was not cause for granting the writ because the trial court had
made previous findings allowing for the use of traditional shackles). In Hollaway v. State,
the Nevada Supreme Court found that the unexplained shock to a defendant in front of
the jury revealed the defendant’s shackling, prejudiced his defense, completely disrupted
the proceedings, and necessitated the removal of jurors from the courtroom. Hollaway v.
State, 116 Nev. 732, 742, 6 P.3d 987, 994 (Nev. 2000), overruled on other grounds by
Lisle v. State, 351 P.3d 725 (Nev. 2015)).
Here, this Court finds that the Stun-Belt’s activation alone is adequate evidence
that the jury was aware of, or otherwise perceived, that Moss was shackled especially
considering the record before this Court. The shock received by Moss occurred while he
was seated next to his counsel during a State witness’ testimony near the jury (as both
described by the trial court on the record after the Shock-Incident occurred and as
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transcribed in the trial transcript) and was preceded by a “noise” prior to the Stun-Belt’s
discharge, immediately followed by Moss’ scream. Filing No. 10-17 at 138. The trial
court described its attempt to redirect attention from Moss to the witness who was
testifying immediately after the Shock Incident, before eventually turning to Moss’ counsel
and asking if a break was necessary and then excusing the jury without explanation and
halting the proceedings. Id.
Prior to the trial resuming, counsel for the parties all acknowledged the Shock
Incident and the potential prejudice it created, not by arguing the jury was unaware of the
Shock Incident, but by discussing how jury prejudice potentially could be overcome.29
Further, after the trial was over, Moss’ counsel, in conjunction with a motion for new trial,
interviewed several jurors who told him they recognized Moss was shackled with an
electronic shackle after (and, in at least one instance, before) the Shock-Incident. Filing
No. 18 at 4; Filing No. 10-19 at 80 (alleging Moss’ counsel spoke to an alternate juror
about why she thought Moss jumped up during the trial and she said, “I thought they had
a bracelet around his leg that went off and that he’s in custody.”); see also Filing No.10-
11 at 14-15, 17 (affidavit of Sharon Jones and corresponding notes stating she spoke with
juror Tomaziedwicz who believed Moss had been “zapped by some leg device.”).
Finding jury awareness, this Court must now determine to what degree that
awareness impacted the presumption of innocence30 as, although a jury’s perception that
29 The prosecution argued that any jury prejudice due to the Shock Incident could be cured by a jury
instruction or other admonishment whereas Moss’ counsel argued that the jury’s awareness of the shackling
and the resulting prejudice was so severe that the charges against Moss should be dropped. Filing No. 10-
17 at 149-51.
30 As jury prejudice is difficult to discern from a record alone, the degree of the awareness of the use of
shackles is typically the lynchpin when determining if prejudice resulted. Deck, 544 U.S. at 634–35
(explaining that the degree of the jury's awareness of a defendant’s shackles was pertinent to “the kinds of
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a defendant is restrained may impact the jury’s ability to presume innocence, knowing a
defendant is shackled does not necessarily rise to an unacceptable constitutional level of
prejudice. However, the Court shall first discuss the second principle addressing the
effect shackling has on a criminal defendant’s Sixth Amendment rights, including the “right
to a fair opportunity to defend against the State's accusations,” see Chambers v.
Mississippi, 410 U.S. 284, 294 (1973), as it dovetails into this Court’s ultimate finding of
prejudice in Moss’ circumstances on both principles.
“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment
or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the
Constitution guarantees criminal defendants ‘a meaningful opportunity to present a
complete defense.’” Crane v. Kentucky, 476 U.S. 683, 690 (1986); see also Rock v.
Arkansas, 483 U.S. 44, 52 (1987); United States v. Scheffer, 523 U.S. 303, 308 (1998);
Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (citing Crane, 476 U.S. 690).
Encompassed in this right to present a “complete defense”31 is the constitutionally
guaranteed right for a criminal defendant to be present at his trial, to testify in his own
defense, to communicate with his counsel, and to confront witnesses against him. Allen,
397 U.S. at 343 (The Sixth Amendment to the United States Constitution guarantees
criminal defendants the right to physically confront and cross examine adverse witnesses
at all stages of the trial.); Rock, 483 U.S. at 52 (The Compulsory Process clause of the
Sixth Amendment includes a defendant's “right to testify” about “his own version of events
prejudice that might have occurred.”). “[T]he greater the intensity of shackling . . . the greater the extent of
prejudice.” Spain v. Rushen, 883 F.2d 712, 722 (9th Cir. 1989).
31 The constitutional guarantee of “a meaningful opportunity to present a complete defense” has its roots
“directly in the Due Process Clause of the Fourteenth Amendment [and] in the Compulsory Process or
Confrontation clauses of the Sixth Amendment.” Crane, 476 U.S. at 690 (quoting California v. Trombetta,
467 U.S. 479, 485 (1984)).
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in his own words.”); United States v. Braman, 33 F.4th 475, 479 (8th Cir. 2022) (“The right
to be present at trial implicates the Sixth Amendment right to counsel, as ‘[t]he defendant's
ability to communicate with counsel in court remains one of the defendant's primary
advantages of being present at the trial.’”) (quoting Moore v. Purkett, 275 F.3d 685, 688
(8th Cir. 2001) (quotation omitted)).
Traditional shackles have been found to potentially interfere with these rights,32 as
have stun-style shackles. See, e.g., Gonzalez v. Pliler, 341 F.3d 897, 899 (9th Cir. 2003)
(explaining that stun-style shackles are no different than more traditional methods of
shackling, as they raise “all of the traditional concerns about the imposition of physical
restraints”). And, while “physical restraints such as a waist chain, leg irons or handcuffs
may create a more prejudicial appearance than more unobtrusive forms of restraint”, see
Larson, 515 F.3d at 1064, a stun-style shackle may affect a defendant’s appearance and
behavior in other negative ways that more traditional shackles do not. This is so as “[i]t
is reasonable to assume that much of a defendant's focus and attention when wearing
one of these devices is occupied by anxiety over the possible triggering of the [stun-style
shackle].” Durham, 287 F.3d at 1305–06 (citing Zygadlo v. Wainwright, 720 F.2d 1221,
1223 (11th Cir. 1983) (citing Estelle (Williams), 425 U.S. at 503, Allen, 397 U.S., at 344))).
Thus, “[w]earing a stun belt is a considerable impediment to a defendant's ability to follow
32 See Deck, 544 U.S. at 631 (citing People v. Harrington, 42 Cal., 165, 168 (1971) (explaining that the
“impo[sition of] physical burdens, pains, and restraints, tend to confuse and embarrass defendants' mental
faculties.”); Gideon v. Wainwright, 372 U.S. 335, 340–341(1963); Allen, 397 U.S. 344; see also Kennedy,
487 F2d 101, cert den 416 US 959, (shackling may confuse and embarrass the accused's mental faculties,
subject the accused to physical pain or torment before he is found guilty; and interfere with the accused's
ability to communicate with his counsel); Stephenson v. State, 864 N.E.2d 1022 (Ind. 2007) (shackling can
interfere with the defendant's ability to communicate with his lawyer and participate in his defense)).
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the proceedings and take an active interest in the presentation of his case.” Durham, 287
F.3d at 1306.
A criminal defendant’s ability to testify, especially in a case where the majority of
the evidence supporting a conviction requires a jury to determine witness credibility, is of
the utmost importance to the outcome of a trial. As further discussed by the Ninth Circuit:
Stun belts, for example, may pose a far more substantial risk of interfering
with a defendant's Sixth Amendment right to confer with counsel than do leg
shackles. We have long noted that one of the defendant's primary
advantages of being present at the trial is his ability to communicate with
his counsel. Stun belts may directly derogate this primary advantage,
impacting a defendant's right to be present at trial and to participate in his
or her defense.
. . .
For like reasons, a stun belt may materially impair and prejudicially affect a
defendant's privilege of becoming a competent witness and testifying in his
own behalf. In the course of litigation, it is not unusual for a defendant, or
any witness, to be nervous while testifying. In view of the nature of a stun
belt and the debilitating and humiliating consequences that such a belt can
inflict, however, it is reasonable to believe that many if not most persons
would experience an increase in anxiety if compelled to wear such a belt
while testifying at trial. This “increase in anxiety” may impact a defendant's
demeanor on the stand; this demeanor, in turn, impacts a jury's perception
of the defendant, thus risking material impairment of and prejudicial affect
on the defendant's privilege of becoming a competent witness and testifying
in his own behalf.
Gonzalez, 341 F.3d at 900–01 (emphasis added, internal citations and quotations
omitted); see also Durham, 287 F.3d at 1305 (“[t]he fear of receiving a painful and
humiliating shock for any gesture that could be perceived as threatening likely chills a
defendant's inclination to make any movements during trial.”); People v. Mar, 52 P.3d 95,
97, 105, 110 (Cal. 2002) (explaining that while not unusual for witnesses including
defendants, to be nervous while testifying, “in view of the nature of a stun belt and the
debilitating and humiliating consequences that such a belt can inflict, it is reasonable to
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believe that many if not most persons would experience an increase in anxiety if
compelled to wear such a belt while testifying at trial[,]” potentially impacting a defendant's
demeanor on the stand and, in turn, impacting a jury's perception of the defendant, risking
material impairment of and prejudicial effect on the defendant's ability to competently
testify on his own behalf) (internal quotation and citation omitted). Moss’ claim that his
own testimony was dramatically and negatively affected following the Shock Incident is
not only well within reason but wholly expected.
As noted by a multitude of courts, “when a case boils down to a ‘he said-she said,’
such as here, the importance of the defendant's credibility and testimony escalates.”
Mireles v. State, 413 S.W.3d 98, 103 (Tex. App. 2013) (citing Theus v. State, 845 S.W.2d
874, 881 (Tex. Crim. App. 1992), abrogated on other grounds by Meadows v. State, 455
S.W.3d 166 (Tex. Crim. App. 2015); see, e.g., Plymail v. Mirandy, 8 F.4th 308, 319 (4th
Cir. 2021), as amended (Sept. 7, 2021) (explaining that rape cases often are battles of
credibility between the accuser and the accused); Nelson v. Robey, No. 5:22-CV-00116-
JHM-LLK, 2023 WL 11947191, at *4 (W.D. Ky. Oct. 18, 2023) (explaining that in a forcible
rape case the determination of a jury relating to who to believe “came down to witness
credibility”), report and recommendation adopted, No. 5:22-CV-00116-CRS, 2023 WL
11947190 (W.D. Ky. Dec. 1, 2023); State v. Seaton, 16 N.W.3d 20, 28 (Wi. App. 2024)
(credibility is “particularly probative” in cases that largely rely upon conflicting witness
testimonial evidence). When a defendant appears bound, it is likely the jury will “suspect
the witness's credibility,” Kennedy, 487 F.2d at 105, n. 5, equating to a greater potential
for jury prejudice when specialized stun-style shackles such as a stun-belt are used as
they may imply that a defendant is especially dangerous, Durham, 287 F.3d at 1305.
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In fact, regardless of whether a jury is aware of the use of a stun-style shackle, as
previously discussed, its use alone likely serves as a distraction to a defendant, potentially
increasing nervousness and/or anxiety, which may potentially, albeit indirectly, impact a
jury’s character and credibility determination about the defendant (and, consequently,
may potentially impact the presumption of innocence because of the defendant’s
appearance before them, especially when providing testimony in his own defense). This
is important because of the impact on both a defendant’s ability to focus on his case when
testifying and also on the jury’s determination of credibility, which is established, at least
in part, by their personal observations of the appearance and demeanor of a witness.
See, e.g., United States v. Edwards, 469 F.2d 1362, 1370 (5th Cir. 1972); see also People
v. Speights, 56 A.D.3d 1232, 1233, 868 N.Y.S.2d 429, 430 (2008) (especially when a
defendant’s credibility is of paramount importance to the determination of guilt or
innocence, a court must give great deference to a fact-finder’s credibility assessment
because the fact-finder had the “opportunity to view the witnesses, hear the testimony
and observe demeanor”). For example, a defendant’s choice of words, or the tone in
which they are said, or a defendant’s heightened state of nervousness may be seen as
an “indicator of credibility.” Commonwealth v. Woolery, No. 1719 MDA 2023, 2025 WL
1146625, at *4 (Pa. Super. Ct. Apr. 16, 2025) (explaining that where a defendant appears
unusually nervous, for example, a jury may believe he is less likely to tell the truth).
Therefore, the use of a stun-style shackle alone can impact a defendant’s demeanor and
consequently (albeit potentially inadvertently) the jury’s decision regarding the
defendant’s credibility.
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Clearly, while there is legitimate concern regarding the use of stun-style shackles
and their impact on a defendant’s Sixth Amendment rights, the activation of a stun-style
shackle naturally intensifies the risk of prejudice even further. See, e.g., Calvert v. State,
No. AP-77,063, 2019 WL 5057268, at *9 (Tex. Crim. App. Oct. 9, 2019) (citing Durham,
287 F.3d at 1306). When hypothesizing about the effect of shocks from stun-style
shackles on a defendant, courts have found that “it is unreasonable to expect a defendant
to meaningfully participate in the proceeding following a shock,” and “the defendant may
presume that other conduct, even if appropriate, may result in other shocks” further
exacerbating his ability to participate. Hawkins v. Comparet-Cassani, 33 F. Supp. 2d
1244, 1262 (C.D. Cal. 1999), opinion modified on reconsideration (Feb. 5, 1999), rev'd in
part on other grounds, 251 F.3d 1230 (9th Cir. 2001).
While there is no bright-line rule or set factors courts look to when determining if
the use of stun-style shackles resulted in unconstitutional prejudice, courts addressing
the use of stun-style shackles have considered: the nature of the charges against the
defendant, the stage (or stages) of the proceeding in which the stun-style shackle
allegedly impacted the defendant, and indications in the record that the shackle inhibited
a defendant’s ability to communicate with his counsel and/or inhibited a defendant’s ability
to participate in his own defense, including testifying on his own behalf and being present
at all stages of his trial.33 Although thankfully such events occur less frequently, courts
33 See, e.g., Johnson v. Gaetz, 743 F. Supp. 2d 820 (N.D. Ill. 2010) (reviewing the record for evidence that
the stun-style shackle inhibited his ability to communicate with his attorney or to participate in his defense);
Gonzalez, 395 Fed. Appx. 453 (considering effect stun-style shackle had on a defendant’s ability to
communicate with counsel); Mar, 52 P.3d 95, as modified, (Sept. 11, 2002) (analyzing a stun-style shackle’s
impact on a defendant’s right to present a defense); Floyd v. State, 289 So. 3d 337 (Ala. Crim. App. 2017)
(considering whether a defendant’s claim that requiring him to wear a stun device prejudiced him via
infringement of his ability to participate in his trial and to communicate with his counsel).
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addressing actual shock incidents focus on similar concerns: whether a defendant
remained physically present at his trial, if he was able to confer with his counsel, the effect
the shock had on his ability to participate in his own defense, whether the use of traditional
shackles was previously found to be justified, and whether the jury was present when the
shock occurred.34 Finally, Justice Thomas’ dissent in Deck addressing a defendant’s
Sixth Amendment rights is particularly instructive here as, while he disagreed with the
majority’s decision relating to the presumption of innocence and courtroom decorum, he
“certainly agree[d] that shackles would be impermissible if they were to seriously impair
a defendant's ability to assist in his defense,” describing examples of such impairment as
when shackles caused a defendant pain, impaired his mental faculties, or otherwise
impaired his ability to communicate with counsel. Id. at 655 (citing Riggins v. Nevada,
504 U.S. 127, 154, n. 4 (1992) (THOMAS, J., dissenting)).
34 See Morris v. State, 554 S.W.3d 98, 117, 118 (Tex. App. 2018) (finding prejudice to a defendant’s right
to participate in his defense and be present at trial where there was evidence that the activation of a stun-
belt caused the defendant's absence from most of the trial proceedings because he was afraid to be in the
courtroom) (citing Deck, 544 U.S. at 630; Allen, 397 U.S. at 339; Holbrook, 475 U.S. at 569); State v.
Belcher, 183 S.W.3d 443, 445 (Tex. App. 2005) (shock outside the jury’s presence caused defendant to
miss conferring with his counsel regarding the exercise of peremptory strikes during voir dire) (citing Allen,
397 U.S. at 339); Chavez, 310 F.3d at 809 (finding no prejudice to the presumption of innocence but only
after the jury was questioned regarding their ability to remain unbiased and because the court had
previously found legitimate state interests justified the use of shackles generally); Harrison v. Yarborough,
2006 WL 735986 (E.D. Cal. 2006) (no prejudice to presumption of innocence where defendant accidentally
shocked outside the jury’s presence during jury deliberations after the trial’s conclusion), summarily aff'd,
211 Fed. Appx. 653 (9th Cir. 2006); Weaver v. State, 894 So. 2d 178 (Fla. 2004) (defendant representing
himself accidentally shocked during voir dire did not object to the shock, request a retrial and failed to allege
how the shock affected his performance); State v. Wachholtz, 952 P.2d 396, 397-99 (Idaho Ct. App. 1998)
(no prejudice to presumption of innocence where defendant accidentally shocked outside of potential jury’s
presence and no Sixth Amendment prejudice because the defendant’s behavior during trial contradicted
his claim of serious pain, no medical evidence supported his claim, and defendant was able to confer with
his counsel during all aspects of his trial); Calvert v. State, No. AP-77,063, 2019 WL 5057268, at *10 (Tex.
Crim. App. Oct. 9, 2019) (finding no indication in the record that “the shock cuff's activation affected
Appellant's ability to confer with counsel and participate in his defense.”)
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In Moss’ case, there is evidence of many of the factors demonstrating prejudice
especially as Moss’ credibility was paramount to his trial’s outcome: physical pain,35
mental impairment, a lack of ability to communicate with counsel, and the inability to be
present for all aspects of his trial. Moss screamed out loud when receiving the shock;
during the break immediately following, his counsel informed the trial court he was
mentally a “basket case” and requested the trial conclude for the day; and Moss was
unable to be present at the meeting between the parties and the trial court where the
Shock Incident and its effect on the trial were discussed. Moreover, the trial continued
after the trial court was informed of Moss’ compromised mental state, and Moss has
described in detail the psychological effect of the Stun-Belt’s continued use on his own
testimony the following day, causing him nervousness and heightened fear of an
additional shock.
Moss has consistently explained both to this Court and the state courts how the
Shock Incident affected his credibility with the jury. In his Direct Appeal, he contended
that because “the only question the jury sought an answer to, literally, was whether or not
Moss ceased his sexual advances toward the alleged victim . . . once [K.E.] expressed
her desire to end the encounter,” his credibility when describing his version of the events
at issue was of the utmost importance. Filing No. 10-8 at 20 (characterizing the most
relevant decision of his trial as one where the jury had to make a credibility determination
and decide whether they believed Moss’ testimony or that of K.E.). He further argued that
his credibility with the jury was irreparably harmed due to the Shock Incident. Id. at 21
(arguing that when the jury realized, due to the warning beeps and then the administration
35 See Filing No. 10-17 at 137-38.
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of the shock, that Moss was wearing a stun-style shackle and was actually shocked for
reasons never explained to them, his credibility was irreparably harmed as the jury was
left to perceive him as in custody, possibly violent, dangerous, or unpredictable as no
“other rational conclusion could be drawn from such an unforeseen spectacle in a
normally civilized courtroom”). Moss has also consistently argued he was apprehensive,
nervous, and fearful of another “accidental” discharge but was unable to hide his unease
from the jury, “which jurors might interpret incorrectly as signs of guilt.” Filing No. 10-8 at
24; see also Filing No. 1 at 64 (reiterating that his focus and demeanor during his
testimony was compromised as he was concerned about receiving another shock).
As is typical with cases involving sexual assaults, the determination of whether
K.E. consented to their sexual interaction involves a battle of credibility between the
accuser and the accused, as there were no other witnesses to the event. See, e.g.,
Mirandy, 8 F.4th at 319, as amended (Sept. 7, 2021) (explaining that rape cases often are
battles of credibility between the accuser and the accused); Nelson, 2023 WL 11947191,
at *4, (explaining that in a forcible rape case the determination of a jury relating to who to
believe “came down to witness credibility”). Importantly here, and as noted by the
Nebraska Court of Appeals, while the evidence against Moss was merely “sufficient,” in
convicting Moss, it was necessary for the jury to determine that “K.E. was more credible”
in order to find “beyond a reasonable doubt that Moss subjected her to sexual penetration
without her consent.” Filing No. 10-3 at 9 (emphasis added). A review of the record
supports the necessity of K.E.’s and Moss’ credibility to the determination of guilt or
innocence on the sexual assault charge.
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The events which support the sexual assault charge against Moss occurred while
only he and K.E. were in a hotel room sometime in the early morning hours of May 15.
As recounted by the state appellate court, K.E. testified that while in the hotel room the
second time Moss asked K.E. if they could make love, but K.E. told him no. Filing No.
10-3 at 4. She further testified that, even though she told Moss she did not want to, he
“forcibly pulled her jeans off and penetrated her vagina with his penis” but he stopped as
K.E. continued to resist. Id. Moss, on the other hand, testified that he and K.E. returned
to his hotel for the second time around 3:30 a.m. on May 15 to go to sleep, which they
did until around 4:30 a.m. when K.E. awakened him because she had to go to work. Filing
No. 10-18 at 134. He specifically testified that he woke up to K.E. “wiggling her butt” into
him in a sexual way and that they began to be intimate “for a second” but stopped before
Moss ejaculated because they started talking about K.E.’s needing to leave so she could
get to work. Id. at 134–35. Resolution of this matter naturally required the jury to
determine who was more credible as no other witnesses were present.
Kidnapping cases also often rely on credibility determinations as purported victims
and the accused kidnapper are often the only witnesses to the alleged crime. See, e.g.,
MacPhail v. Pepe, No. CIV.A.99-11116-RWZ, 2004 WL 1305858, at *1 (D. Mass. June 14,
2004) (discussing the credibility of a habeas petitioner’s testimony relating to an alleged
kidnapping where the petitioner and the alleged victim were the only witnesses aside from
minimal corroborating evidence). Here, the kidnapping charges stem from events which
occurred after K.E. voluntarily met with Moss, and, while some of their interactions were
witnessed by others, the majority of the events at issue occurred when no one else was
present, again requiring the jury to assess the credibility of K.E. and Moss. See Filing
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No. 10-3 at 3-4 (the state appellate court found that K.E.’s testimony established that she
felt terrified and unable to leave Moss’ presence after K.E. and Moss returned to his hotel
room for the second time in the early morning of May 15, through when K.E. exited the
vehicle Moss was driving several hours later while stopped at a red light, outside the
presence of others).
K.E. and Moss agreed that they went to several bars and had several drinks at
each, as well as to a gas station and to a friend’s house together before returning to Moss’
hotel. During these outings, many people were present and K.E. had multiple
opportunities to leave or inform others she wanted to but allegedly opted to pretend to get
along with Moss to appease him. During that time, despite testifying that she still felt “in
control” of the situation and able to leave, K.E. testified that she attempted to leave notes
at two bars instructing people that she was with Moss and to call her father to get help,
listing his cell phone number, Filing No. 10-15 at 232-34, but none of the notes were ever
found or presented to support her testimony. And, while the remainder of the evidence
corroborated portions of K.E.’s testimony with several witnesses testifying she exited
Moss’ vehicle in distress, to the extent K.E.’s testimony was relatively consistent with the
version of events she told others after the fact, the bulk of the evidence against Moss
regarding being held under terrorizing circumstances consists of K.E.’s testimony that she
felt trapped or otherwise unable to leave him.
Moss testified that, contrary to K.E.'s testimony, K.E. willingly accompanied him
throughout the time they were together on May 14 and 15. Filing No. 10-3 at 4. He
testified that while at a bar, K.E. asked him if he wanted to have sex and they went to the
hotel and had consensual sex. Moss acknowledged arguing with K.E. in his vehicle on
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the morning of May 15 and grabbing her arm as she exited the vehicle, but he claimed he
grabbed her to her to keep her from falling out of the vehicle because she was intoxicated.
Filing No. 10-3 at 4; Filing No. 10-18 at 138-40. Therefore, the determination of whether
Moss’ actions terrified K.E. and rendered her unable to leave his presence also required
the jury to determine whose description of events they believed.
As credibility is “particularly probative” in cases such as this one that largely rely
upon conflicting witness testimonial evidence, see Seaton, 16 N.W.3d at 28, the damage
to Moss’ credibility with the jury from the Shock Incident and having to testify before that
jury the following day still wearing the Stun-Belt was amplified. See Mireles, 413 S.W.3d
at 103 (explaining that “when a case boils down to a ‘he said-she said,’ the importance of
the defendant's credibility and testimony escalates.”) (citing Theus v. State, 845 S.W.2d
874, 881 (Tex. Crim. App. 1992), abrogated on other grounds by Meadows, 455 S.W.3d
166; Kennedy, 487 F.2d at 105, n. 5 (explaining that when a defendant appears bound, it
is likely the jury will “suspect the witness's credibility.”). Therefore, the danger of prejudice
to Moss’ credibility via the use of the Stun-Belt, especially after the Shock Incident and
regardless of the jury’s awareness of the Stun-Belt’s continued use when he testified (as
it was at least unclear whether Moss remained restrained), was severe.
And, even assuming arguendo that the jury remained unaware of the use of the
Stun-Belt, the jury could erroneously equate any nervousness or anxiety they perceived
in Moss’ testimony with a lack of credibility, when his nervousness/anxiety may have
related, at least in part, to its continued use. If they were aware, the presumption of
innocence would be juxtaposed with their belief Moss’ shackles were required because
of behavior attributable to Moss. However, ultimately, the jury was left to make their own
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assumptions for the reason Moss was both shackled and shocked because the Shock
Incident was not discussed with them until after the trial had ended.
Because of the paramount importance that credibility played in the outcome of
Moss’ trial, and because the jury was aware of his shackling at least at the time of the
Shock Incident but received no explanation or guidance from the trial court regarding the
use of the Stun-Belt, the unknown reason for the shock, or whether Moss remained
shackled with the Stun-Belt after the Shock Incident occurred, and because this Court
finds Moss’ repeated statements that he was nervous and unable to focus properly on his
testimony following the Shock Incident credible, this Court finds that the prejudice to both
the presumption of innocence and Moss’ Sixth Amendment rights reached constitutional
magnitude.
The final principle is courtroom decorum which focuses not on perceptions, but on
judicial responsibility for the dignity and decorum that preserves the judicial process.
Deck, 544 U.S. at 631 (“[J]udges must seek to maintain a judicial process that is a
dignified process.”); see also Ochoa v. Workman, 669 F.3d 1130, 1140 (10th Cir. 2012)
(“[I]t is the trial judge's responsibility to control the decorum of the courtroom.”). The use
of shackles and gags is “something of an affront to the very dignity and decorum of judicial
proceedings that the judge is seeking to uphold.” Allen, 397 U.S. at 344.
The courtroom's formal dignity, which includes the respectful treatment of
defendants, reflects the importance of the matter at issue, guilt or
innocence, and the gravity with which Americans consider any deprivation
of an individual's liberty through criminal punishment. And it reflects a
seriousness of purpose that helps to explain the judicial system's power to
inspire the confidence and to affect the behavior of a general public whose
demands for justice our courts seek to serve.
Deck, 544 U.S. at 631.
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When addressing courtroom decorum and stun-style shackles, some courts have
found that stun-style shackles do not implicate the dignity and decorum of judicial
proceedings because they “are much less conspicuous and disruptive than the examples
the Supreme Court has previously determined threaten the courtroom's formal dignity.”
See, e.g., United States v. Wiley, 103 F.4th 565, 574 (9th Cir. 2024) (cleaned up) (citing
Deck, at 631–32; Allen, 397 U.S. at 344), cert. denied, Wiley v. United States, 145 S. Ct.
1929, 221 L. Ed. 2d 667 (2025). However, the administration of a shock to a defendant
by a stun-style shackle in front of the jury does not fall into such a category. See Durham,
287 F.3d at 1307 (describing the accidental triggering of a defendant's stun belt during
trial as an “egregious breach of both appropriate courtroom decorum and [the
defendant's] most fundamental trial rights.”). Further, courts addressing actual shocks
occurring in front of a jury for unexplained reasons look to what occurred following the
shock when considering whether a defendant’s constitutional rights were implicated,
including the efforts the trial court took to ensure the defendant’s trial could proceed,
because of the high potential for prejudice resulting from such an event. See, e.g.,
Chavez, 310 F.3d at 809.
Here, unlike other courts addressing a defendant shocked in the jury’s presence,
the trial court did little to address it aside from taking a short recess and listening to the
parties discuss how the Shock Incident affected Moss and how any prejudice resulting
from the Shock Incident could be rectified. And, ultimately, the trial court declined to
address prejudice at that time, declined to inform or otherwise instruct the jury about what
occurred, and instead simply reaffixed Moss with a Stun-Belt and resumed trial. Such a
failure clearly offends the dignity of the proceedings.
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For these reasons, this Court finds that Moss established prejudice under all three
principles.
c. Brecht – harmless error
Although this Court finds the trial court's imposition of shackles was an abuse of
discretion and that Moss suffered prejudice as a result, this Court must nonetheless
assess whether this error “had substantial and injurious effect or influence in determining
the jury's verdict.” Brecht, 507 U.S. at 623 (internal quotation marks omitted); Rhoden v.
Rowland, 172 F.3d 633, 637 (9th Cir.1999); see also Gonzalez, 551 U.S. 112 (holding
that Brecht harmless error review applies whether or not the state court recognized the
error and reviewed it for harmlessness). That is, in Moss’ case, he must establish that
the unjustified use of the Stun-Belt throughout his trial had a “substantial and injurious
effect or influence in determining the jury's verdict.” Brecht, 507 U.S. at 623. If not, the
error is “harmless” and the writ cannot be granted.
Review for harmless error under Brecht is “more forgiving” to state court errors
than the harmless error standard the Supreme Court applies on its direct review of state
court convictions. See Gonzalez, 551 U.S. 112 (contrasting Brecht with Chapman's
“harmless beyond a reasonable doubt” standard). And under Brecht, “in cases of grave
doubt as to harmlessness the petitioner must win.” O'Neal v. McAninch, 513 U.S. 432,
437 (1995). Such is the case here.
The strength of the evidence against a defendant is frequently the reason why a
petitioner is not granted relief even where prejudice is found. “[T]he unconstitutional
shackling of a defendant results in prejudice only if the evidence of guilt is not
‘overwhelming.’” Cox v. Ayers, 613 F.3d 883, 891 (9th Cir. 2010) (emphasis added); see
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also Napoli v. Sec'y, Dep't of Corr, No. 615CV1372ORL41GJK, 2017 WL 6558264, at *7
(M.D. Fla. Oct. 20, 2017) (finding that although defendant was impermissibly shackled
and tagged with a jail identification band during his trial, the error was harmless as “there
[was] no probability that, absent the shackles or identification, [the jury] would have
acquitted him because the evidence establishing Petitioner’s guilt was overwhelming”).
As described by the prosecution, the case against Moss was not one where a
victim was kidnapped and raped and the question before the jury was whether or not the
accused committed the offenses at issue. There is no doubt that if the offenses were
committed, Moss was the perpetrator. At Moss’ trial, however, as described by the
prosecution, the question needing to be answered was simply “whether or not [the
offenses] happened.” Filing No. 10-19 at 15. The prosecution also reminded the jury that
the only issue in the sexual assault count was consent and the only issue in the second
count was “whether or not Moss restrained [K.E.] under terrorizing circumstances.” Id.
Put another way, the jury had to determine who they believed when finding that K.E. did
or did not consent to sexual activities occurring in Moss’ hotel room and whether Moss
restrained K.E. under “terrorizing” circumstances despite K.E. and Moss being seen
together in multiple locations where other people were present and K.E.’s own admission
that she felt able to leave Moss’ presence for a long period of time.
The state appellate court found that the evidence against Moss was “sufficient,”
but not overwhelming. Filing No. 10-3 at 9. More importantly, as noted previously, the
appellate court found that it was necessary for the jury to determine that K.E. was more
“credible” than Moss to find that Moss subjected K.E. to sexual penetration without her
consent and to find that Moss “knowingly restricted K.E.'s movement by interfering
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substantially with her liberty by means of force, threat, or deception under circumstances
which made K.E. afraid or terrified.” Filing No. 10-3 at 9-10 (emphasis added). A review
of the record, as discussed previously, further establishes the closeness of the case and
the importance of K.E.’s and Moss’ credibility when determining Moss’ guilt or innocence.
Ultimately, this was not a case where overwhelming evidence supported the jury’s
findings. Instead, the sufficient evidence that supported the jury’s verdict was almost
solely the testimonial evidence of K.E., who, according to the state appellate court the
jury found to be more credible than Moss. And, due to the use of the Stun-Belt and the
Shock Incident, the jury was not only capable of but was aware that Moss was shackled
with a stun-style device and shocked by it.
As Moss’ credibility was paramount to the outcome of his trial and as the trial court
failed to explain what happened to the jury or otherwise inform the jury that the reason for
the Shock Incident was not known to be Moss’ fault, this Court finds that the unjustified
use of the Stun-Belt throughout Moss’ trial, especially and including its continued use after
the Shock Incident, was prejudicial to Moss, was not harmless, and, instead, had a
“substantial and injurious effect or influence in determining the jury's verdict.” As such,
the writ on Subparts One and Three shall be granted.
B. Claim Two
In Claim Two, Moss alleges the Phone containing material exculpatory
impeachment evidence was destroyed by the State in bad faith, violating his due process
rights under Brady. Filing No. 1 at 7, 34-36; Filing No. 18 at 16. Moss argues that the
state appellate court’s finding that Youngblood instead of Brady applies to this claim was
erroneous, and, even if Youngblood did apply, their finding that the State’s actions did not
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constitute bad faith was a contrary or unreasonable application of clearly established
Federal law and/or an unreasonable determination of the facts in light of the evidence
presented. See Filing No. 1 at 34-37 (citing 28 U.S.C. § 2254(d)).
Respondent disagrees, see Filing No. 14 at 26, as does this Court.
1. Youngblood supplies the appropriate standard
Moss contends that the state appellate court erred in not applying Brady to Claim
Two because: (1) Moss filed a discovery motion seeking the Phone prior to its destruction;
(2) the police knew the contents of the Phone were material and exculpatory as they listed
the Phone in a search warrant; and (3) Moss told the prosecution though his discovery
requests, at various hearings, and via his counsel that the Phone contained evidence that
was material, exculpatory, and could be used for impeachment. Filing No. 18 at 3-4, 12-
15, 20.
It is well established under Brady that “the Government may not in good or bad
faith suppress evidence favorable to the accused.” United States v. Bugh, 701 F.3d 888,
894 (8th Cir. 2012) (citing Brady, 373 U.S. at 87). Therefore, when the State suppresses
or fails to disclose material exculpatory evidence, the good or bad faith of the prosecution
is irrelevant. Instead, a due process violation occurs whenever such evidence is withheld.
See Brady, 373 U.S. at 87; Agurs, 427 U.S. 97. For nondisclosed evidence to fall under
Brady its material exculpatory nature must be “known to the others acting on the
government's behalf…including the police” as favorable to the accused.36 Kyles v.
36 Moss cites to Wearry v. Cain, 577 U.S. 385 (2016), for the proposition that evidence qualifies as material
for purposes of applying Brady when there is any reasonable likelihood that the evidence could have
affected the judgment of the jury. Filing No. 18 at 17. However, Moss’ citation is taken out of context. The
Court in Cain did not alter the Brady/Youngblood landscape. Instead, the Court explained that Brady
applies only where the evidence at issue is known to be “favorable to an accused,” and that such evidence
is material for Brady purposes when there is a reasonable likelihood that the evidence would affect the
outcome. Cain, 577 U.S. at 392 (citing Brady, 373 U.S. at 87; Giglio v. United States, 405 U.S. 150, 153-
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Whitley, 514 U.S. 419, 437-38 (1995) (emphasis added). Therefore, the applicability of
Brady in part depends, “not on the centrality of the contested evidence to the
prosecution's case or the defendant's defense, but on the distinction between clearly
‘material exculpatory’ evidence and ‘potentially useful’ evidence.” Illinois v. Fisher, 540
U.S. 544, 549 (2004); see also Bugh, 701 F.3d at 894 (if “the evidence in question is only
potentially useful, as opposed to clearly exculpatory” then Youngblood and not Brady
applies).
“The mere possibility that an item of undisclosed information might have helped
the defense, or might have affected the outcome of the trial, does not establish ‘materiality’
in the constitutional sense.” Agurs, 427 U.S. at 109–10 (emphasis added). Instead, a
due process claim based on the failure to produce this type of evidence is governed by
the Supreme Court's decisions in California v. Trombetta, 467 U.S. 479, 489 (1984), and
Arizona v. Youngblood, 488 U.S. 51, 54–58 (1988).
Under Trombetta, “the government violates a defendant's right to due process
when: (1) it destroys evidence whose exculpatory significance is ‘apparent before’
destruction; and (2) the defendant remains unable to ‘obtain comparable evidence by
other reasonably available means.’” United States v. Bohl, 25 F.3d 904, 909–10 (10th Cir.
1994) (quoting Trombetta, 467 U.S. at 489). In Youngblood, the Court “extended
Trombetta to provide that, if the exculpatory value of the evidence is indeterminate and
all that can be confirmed is that the evidence was ‘potentially useful’ for the defense, then
54). Put another way, Cain addresses evidence, the contents of which are actually known, not evidence of
which the contents are unknown to the government.
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a defendant must show that the government acted in bad faith in destroying the evidence.”
Id. at 910 (quoting Youngblood, 488 U.S. at 58).
Moss first argues that Brady applies because he requested access to the Phone
in discovery motions before its destruction, citing to Illinois v. Fisher, for the proposition
that a discovery request puts the state on notice of evidence materiality, the requested
evidence must be preserved, and the defense is not required to make an independent
showing that the evidence has exculpatory value. Filing No. 18 at 16 (citing Fisher, 540
U.S. 544). Moss’ interpretation of Fisher and his focus on the discovery request alone,
however, is misguided.
In Fisher, the Court was asked to determine whether Brady or Youngblood applied
to a lost/destroyed bag determined by the government to contain cocaine that the
defendant had requested more than 10 years earlier in a discovery motion. Fisher, 540
U.S. at 545 (Pre-trial, Fisher had requested all physical evidence against him including
the bag and its contents as he sought to obtain its independent testing, but due to Fisher
failing to appear for a hearing while on bail, the case against him did not proceed for 10
years, during which time the bag and its contents were apparently lost or destroyed while
in the government’s possession). The Fisher Court, in applying Youngblood, clarified that
the distinguishing fact between the application of Brady or Youngblood is not the nature
of the request for the evidence by a defendant (such as a discovery motion), but the
knowledge on the part of the government regarding the contents of the evidence once
requested. Specifically, the Fisher Court explained that the court has “never held or
suggested that the existence of a pending discovery request eliminates the necessity of
showing bad faith on the part of police,” when dealing with “the failure of the State to
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preserve evidentiary material of which no more can be said than that it could have been
subjected to tests, the results of which might have exonerated the defendant.” Id. at 547-
48 (citing Youngblood, 488 U.S. at 57).
Moreover, Moss does not contend the State had access to the Phone’s contents
or any actual knowledge of the information it may or may not have contained. Instead,
he argues that his general statements regarding the materiality and impeachment value
of its contents put the State on notice of its actual contents. Knowledge of the materiality
of evidence, however, cannot come solely from a defendant’s claims about the
exculpatory or material nature allegedly contained in lost or destroyed evidence. Bugh,
701 F.3d at 895; see also United States v. Manjarrez, 714 F. App'x 795, 796 (9th Cir. 2018)
(applying Youngblood where a defendant contended that a destroyed cell phone
contained exculpatory evidence showing that her calls were related to her bakery
business rather than smuggling). The reality is that the State did not possess the Phone’s
PIN code and the State’s attempts at accessing its contents were unsuccessful, resulting
in its destruction and rendering its contents unknown to this day.37 As such, whatever
information was contained within the Phone is plainly the sort of “potentially useful
evidence” referred to in Youngblood, not the material exculpatory evidence addressed in
Brady.
Moss’ contention that the listing of the Phone on a search warrant established that
the State knew of the materiality of the evidence contained in his Phone, rendering Brady
applicable, fares no better. Filing No. 18 at 21. The issuance and execution of a search
37 In discussing the issue of the search warrant in his Direct Appeal, Moss admitted the search warrant at
issue designated the Phone as possibly containing relevant video or audio evidence, indicating the police
had no actual knowledge of what evidence the Phone contained when the warrant was issued. Filing No.
10-5 at 16, 19, 23-24 (emphasis added).
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warrant allows the police to collect “potential evidence,” but does not imply that the police
have any knowledge of the materiality or exculpatory value of the contents of the items to
be searched. See, e.g., United States v. Maholy, 1 F.3d 718, 722 (8th Cir. 1993)
(describing one of the purposes of a search warrant as allowing for the collection of
potential evidence).
In his final allegation, Moss relies on the case of Boyette v. Lefevre, 246 F.3d 76
(2d Cir. 2001), which he interprets as rendering Brady applicable where impeachment
evidence against a prosecution’s main witness is withheld by the prosecution, which in
his case is the contents of the Phone which he alleges would impeach K.E.’s testimony.
Filing No. 18 at 13-15, 17, 20-21. Moss’ reliance on Boyette, however is flawed.
In Boyette, the withheld evidence at issue consisted of various written reports and
documents (which could have been used as impeachment evidence of the State’s main
witness), the contents of which had been seen by and therefore were known to the police
prior to being withheld. Boyette, 246 F.3d at 85 (emphasis added). The difference
between Boyette and Moss’ case is clear: In Boyette, the State knew the information
contained in the withheld documents could be used for impeachment because they had
access to and were able to read them. Id. Conversely, in Moss’ case the actual contents
of the Phone were, and remain, unknown. As such, Youngblood, not Brady, is applicable.
See, e.g., Ferguson v. Roper, 400 F.3d 635, 637 (8th Cir. 2005); Jimerson v. Payne, 957
F.3d 916, 925–26 (8th Cir. 2020).
As the application of Brady or Youngblood depends on such an evaluation, and as
the state appellate court ultimately made the same distinction in rendering its decision,
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see Filing 10-3 at 5-6, the state court of appeals did not misapply federal law in finding
Youngblood applied to Moss’ claims he now raises in Claim Two.
2. Moss does not establish the State acted in bad faith
Moss alternatively argues that, even if the bad faith standard in Youngblood
applies, the state appellate court erred in finding the State did not act in bad faith when
destroying the Phone and any potential exculpatory evidence it contained. Filing No. 18
at 16. Moss alleges the following provide evidence of the State’s bad faith: (1) the State’s
forensics experts failed to properly research the Phone chip before taking the Phone apart
resulting in its unnecessary destruction; (2) State counsel’s comment at a hearing on
January 4, 2016, before the trial court that Moss “will not be getting any cell phones as
far as I am concerned,” prior to the Phone’s destruction, indicates the State intended to
deny him access to the information contained in it; and (3) the State failed to request the
PIN code from Moss or acknowledge it was unable to access the Phone’s contents
without it until after the Phone’s destruction. Id. at 19.
To prevail on such a claim, Moss must establish the State’s knowledge of the
apparent exculpatory value of the evidence at the time of its destruction and evidence of
bad faith in relation to the destruction.38 Manjarrez, 714 F. App'x at 796 (citing
Youngblood, 488 U.S. at 58; Trombetta, 467 U.S. at 488). He does not.
38 Although the Supreme Court has left open the possibility that due process can be violated by something
other than intentional misconduct by a government agent, see, e.g., Daniels v. Williams, 474 U.S. 327, 334
n. 3 (1986) (indicating that there may be occasion to consider “whether something less than intentional
conduct, such as recklessness or ‘gross negligence,’ is enough to trigger the protections of the Due Process
Clause” in the context of a § 1983 claim), under current Supreme Court and Eighth Circuit caselaw, bad
faith in the context which Moss presents it requires more than gross negligence or reckless behavior. See,
e.g., United States v. Houston, 548 F.3d 1151, 1155 (8th Cir. 2008) (officers’ failure to download video
evidence that could potentially assist the defense because they were not trained or instructed on how to do
so as a matter of routine is evidence of potential negligence but not bad faith); Bugh, 701 F.3d at 895
(accidental destruction of potentially exculpatory evidence is not bad faith); Iron Eyes, 367 F.3d at 786
(negligent destruction of evidence with potential exculpatory value does not constitute bad faith).
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Bad faith on the part of authorities has been described as involving “malice or a
design to seek an unconscionable advantage over the defendant,” Canez v. Spearman,
No. 117CV01192LJOSABHC, 2018 WL 1801943, at *11 (E.D. Cal. Apr. 13, 2018) (internal
quotations omitted), report and recommendation adopted, No. 117CV01192LJOSABHC,
2018 WL 11016657 (E.D. Cal. June 25, 2018), requiring a defendant to prove “official
animus or a conscious effort to suppress exculpatory evidence” on part of the prosecution,
Trombetta, 467 U.S. at 488. While deliberate omission or concealment of the existence
of potential evidence is indicative of bad faith, see Jimerson, 957 F.3d at 926, mere
negligence is not, see United States v. Heiser, 473 Fed. App’x. 161 (3d Cir. 2012) (the
failure of seized drive and loss of back-up copy did not support a due process violation,
absent showing of “an intentional act to gain a tactical advantage,” any “official animus”
toward the defendant, or “a conscious effort to suppress exculpatory evidence”).
First, Moss alleges that the State failed to “put preservation of evidence over
negligent ‘last resort’ destructive testing” of the Phone including failing to research other
non-destructive tests which could have been performed as evidence of bad faith. Filing
No. 18 at 19, 22–23 (emphasis added). However, as previously noted, bad faith requires
more than negligence. See, e.g., Houston, 548 F.3d at 1155 (8th Cir. 2008); Bugh, 701
F.3d at 895; United States v. Iron Eyes, 367 F.3d 781, 786 (8th Cir. 2004). The fact that
other states issue a warrant listing the chip off procedure as potentially being used, see,
e.g., State v. Law, 12 Wash. App. 2d 1066, *2 (2020), or that other avenues for accessing
data exist, does not establish that the failure to utilize other procedures or the failure to
issue a warrant before utilizing the chip off procedure is evidence of bad faith without
evidence in the record of malicious intent, which is not supported in the record here.
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Next, Moss points to what he contends is the State’s refusal to turn over the Phone
to him during multiple hearings as evidence of the State’s intentional plan to deprive him
access to the Phone’s contents. In conjunction with this argument, Moss contends that
the State should have, but did not, ask him for the PIN code before utilizing the chip-off
procedure.
The State Appellate Court addressed this argument fully, finding that:
Moss also repeatedly points out that the State never asked him for the PIN
code to the [P]hone, and argues that had it done so, he would have gladly
provided that information because he, too, wanted the information on the
[P]hone to be accessed. In conjunction with this argument, Moss also notes
the prosecutor's comment at a hearing regarding the [P]hone that Moss "will
not be getting any cell phones as far as I am concerned." He claims that
this comment combined with the fact that the State never asked him for the
PIN code establish that the State acted in bad faith.
We first observe that the prosecutor's comment was made at the January
4, 2016, hearing in response to Moss’ request for the [P]hone to be released
to him personally, rather than allowing it to be examined by an expert of his
choosing. After the State's comment that Moss would not be getting the
[P]hone, the district court explained to Moss’ counsel that the State "can't
simply turn over the [P]hone to you." There was a discussion with the court
indicating that Moss could file a motion requesting to have an independent
expert analyze the [P]hone, but Moss’ argument appeared to center around
his request for the State to physically give him the [P]hone. The State never
objected to providing the [P[hone to an independent expert for analysis; in
fact, the State specifically agreed to release the [P]hone to an expert of
Moss’ choosing for examination but objected to releasing the [P]hone to
Moss himself.
Moss cites to no authority which would allow the district court to authorize
the release of a piece of physical evidence to the defendant directly, and we
have found none. And we do not interpret the State's comment as a refusal
to allow the [P]hone to be inspected by someone other than a law
enforcement officer selected by the State. Instead, the State objected to
giving the [P]hone to Moss because he knew the PIN code and could
potentially erase or change information stored on the [P]hone. Although the
State was ultimately unable to gain access to any information on the
[P]hone, its objection to allowing Moss to personally have access to the
[P]hone was not unreasonable or in bad faith.
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Further, Moss repeatedly notes that no one asked him for the PIN code for
the [P]hone, which he claims he would have provided. He again provides
no authority that the State was required to ask him for the code, and as the
State observed at one hearing on this issue, it could not require him to
provide that information. In addition, Moss was present during numerous
hearings where the State described its attempts at bypassing the PIN code
requirement on Moss’ [P]hone. If Moss was as interested in accessing the
information on the [P[hone as he now claims he was, he was aware that the
PIN code could assist in unlocking the [P]hone and could have offered to
provide it.
Having found that the district court's determination that the State did not act
in bad faith is not clearly erroneous, we conclude that the court did not err
in denying the motion to dismiss.
Filing No. 10-3 at 6–7.
A review of the record establishes that Moss may not have been aware of the
difficulties with accessing the information contained in the Phone, or that it had not been
accessed, until after its destruction. At the hearings before the Phone’s destruction, the
State’s counsel indicated she would not be releasing the Phone directly to Moss in
response to his request for discovery, but there is nothing in the record establishing Moss
was aware of any issues with accessing the Phone that may have been resolved by the
PIN code. See, e.g., Filing No. 10-14 at 11-12 (counsel for the prosecution stated that
she was unsure if a search of the Phone had occurred so she did not know if it contained
anything of evidentiary value, but did not mention why she was unaware of the Phone’s
contents). Instead, the hearings referenced by the state appellate court as evidence
Moss knew occurred after the Phone’s destruction. See Filing No. 10-14 at 16–17.
However, even if the appellate court’s finding regarding Moss’ awareness (prior to
the Phone’s destruction) of the State’s lack of access to the Phone’s contents was
erroneous, ultimately its error is harmless. The record establishes that the State did not
want the Phone destroyed and good faith can be inferred from the State’s attempts to
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obtain its contents via its various attempts at working around the PIN code. See, e.g.,
United States v. Manjarrez, 714 F. App'x 795, 796 (9th Cir. 2018) (inferring good faith from
evidence that the government was attempting to secure a search warrant for a cell phone
at the time it was accidentally destroyed). And, even if Moss was willing to provide the
PIN code, he presents no evidence suggesting any official animus against him, of a plan
by the State to gain tactical advantage, or the State’s actual knowledge of the Phone’s
contents.
Therefore, while a review of the record establishes that the prosecution may not
have notified Moss that it could not access the contents of the Phone without the PIN
code until after it was destroyed, or that there may have been other procedures allowing
access to its contents without its destruction (and even if the government acted
negligently by failing to pursue those other avenues), considering the record and the legal
arguments raised by Moss, this Court finds the state appellate court’s decision was not
contrary to, or an unreasonable application of, clearly established federal law, or based
upon unreasonable determinations of facts in light of the evidence before them. 28 U.S.C.
§ 2254(d)(1), (2). For these reasons, Claim Two must be denied.
C. Claim Three
In Claim Three, Moss argues that he was denied due process because the trial
court imposed an excessive sentence based on a presentence investigation report
(“PSR”) containing incorrect information about his criminal history. Filing No. 1 at 44-49;
Filing No. 6 at 2. He also argues he was denied effective assistance of counsel as his
trial counsel failed to obtain the PSR for him to review. Filing No. 1 at 44–49; Filing No.
6 at 2.
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Moss did not present any of these arguments in his Direct Appeal. See Filing No.
10-5. Instead, he alleged the opposite, arguing that based on the information contained
in the PSR he should have been sentenced to probation and the state district court
abused its discretion by not relying on the PSR when sentencing him. Filing No. 10-5 at
49-54.
As the claims raised in Claim Three are not the same claims raised to the state
courts, they were never fairly presented, and the time to do so has passed, see supra
(discussing fair presentation in relation to Claim One), the merits of Claim Three cannot
be reviewed as the claim is procedurally defaulted. Therefore, Claim Three is denied.
D. Claim Four
In Claim Four, Moss contends he was denied a fair trial because: (1) the trial court
erred in sustaining the State’s objections to the testimony of witnesses Rankin, Pollard,
Owens, and Aurterburn; (2) trial counsel failed to endorse and introduce the testimony of
Pollard, Aurterburn, Owens, and Rankin at Moss’ trial; (3) trial counsel failed to gain
proper out-of-state service of witness Pollard; and (4) Moss’ counsel failed to make an
offer of proof regarding the testimony of excluded witnesses Pollard, Aurterburn, Owens,
and Rankin. Filing No. 1 at 50-53.
As an initial matter, no claims were asserted by Moss relating to either Rankin or
Owens in his Direct Appeal or his PCM. See Filing Nos. 10-5, 10-7, 10-8, 10-10, and 10-
11. As such, Subparts One, Two, and Four, to the extent they relate to Rankin and Owens,
shall be denied as they are procedurally defaulted because they were not fairly presented
to the Nebraska courts and the time to do so has passed.
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1. Subpart One
In the remainder of Subpart One, Moss argues he was denied a fair trial because
the trial court sustained the State’s objections to the testimony of witnesses Pollard and
Aurterburn. Filing No. 1 at 53. While Moss raised a related claim in his Direct Appeal, it
is not the same claim he now raises as there he argued that his counsel, not the court,
erred by failing to disclose Aurterburn. See Filing No. 10-5 at 46 (indicating that his
counsel mistakenly believed Aurterburn did not have to be disclosed because he was a
rebuttal witness). In relation to Pollard, there is no indication in the record that Moss
raised any claim of trial court error relating to the state’s objection to Pollard’s testimony.
As Subpart One was never raised before any state court and the time to do so has
passed, the claim was not fairly presented to the state courts, is procedurally defaulted,
and outside the scope of review by this Court. Therefore, Subpart One shall be denied.
2. Subparts Two and Three
In Subpart Two, Moss submits his counsel was ineffective by failing to endorse and
introduce the testimony of Pollard and Aurterburn at trial to aid his defense. Filing No. 1
at 50. In Subpart Three, Moss argues his counsel was ineffective for failing to obtain
proper out-of-state service of witness Pollard. Id. at 51.
In relation to Subpart Two, Moss brought this claim as to both Pollard and
Aurterburn in his Direct Appeal, see Filing No. 10-5 at 41, 45-46, but the Nebraska Court
of Appeals ultimately found that the record relating to Aurterburn’s testimony was
insufficient to address this claim. See Filing No. 10-3 at 15. Because the merits of the
Aurterburn claim were not addressed in Moss’ Direct Appeal, were not again raised in his
PCM, see Filing No. 10-7, and the time to do so has passed, the claim as to Auterburn
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was not fairly presented, is procedurally defaulted, and is outside the scope of review by
this Court. See Akins v. Kenney, 410 F.3d 451, 454 (8th Cir. 2005).
The merits of Subparts Two and Three relating to Pollard were presented in Moss’
Direct Appeal and are both exhausted. See Filing No. 10-3 at 15-16; Filing No. 10-5 at
46-47; Filing No. 10-7 at 12–13. In both Subparts, Moss argues that he received
ineffective assistance of counsel when his counsel failed to obtain a proper out of state
subpoena resulting in Pollard’s failure to attend or provide testimony at his trial. Filing
No. 1 at 51. Although Subpart Three relates to trial counsel’s failure to properly subpoena
Pollard and Subpart two relates to trial counsel’s failure to produce Pollard to testify, both
Subparts address the same issue relating to prejudice—the effect of the lack of Pollard’s
testimony on the outcome of Moss’ trial as governed by Strickland v. Washington, 466
U.S. 668 (1984).
Under Strickland, to prevail on a claim of ineffective assistance of counsel a federal
habeas petitioner must demonstrate both that his counsel’s performance was deficient
and that such deficient performance prejudiced the petitioner’s defense. Strickland, 466
U.S. at 687. Strickland prejudice requires a petitioner to demonstrate “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694.
The state appellate court found that Moss failed to establish Strickland prejudice
as he did not establish that the results of his trial would have been different had Pollard
testified. Filing No. 10-3 at 15-16. Moss argues this determination is in error as he did
not need to establish prejudice; because K.E. was the state’s main witness and K.E.’s
credibility was essential to securing Moss’ conviction, Pollard’s testimony having been
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omitted was inherently prejudicial. Filing No. 1 at 51. Specifically, he contends Pollard
would have provided impeachment testimony contradicting “MANY of K.E.’s statements .
. . including allegations of her being held against her will, and alleged poor treatment of
their . . . dog.” Id.
In support, Moss cites to Holley v. Yarborough, 568 F.3d 1091 (9th Cir. 2009),
arguing that Yarborough establishes that a criminal defendant is prejudiced by the
omission of testimony which, if allowed, would discredit the accuracy and reliability of
material witness testimony used against the defendant, and that the exclusion of evidence
demonstrating a victim’s propensity to fabricate has a substantial and injurious effect or
influence on the defendant’s guilty verdict and is prejudicial. See Filing No. 1 at 54. Moss’
reliance on Yarborough is misplaced.
First, as Yarborough is a Ninth Circuit case, this Court need not follow its holding.
More importantly, in Yarborough, the court found that the exclusion of testimony was
prejudicial as the victim’s “accuracy and truthfulness” were key elements of the State's
case, and as the jury might have received a “significantly different impression” of the
victim’s credibility had the defendant been allowed to introduce evidence of the victim’s
past statements and cross-examine her about them. Yarborough, 568 F.3d at 1101. This
is not the case regarding Pollard’s purported testimony.
The state appellate court found that Pollard’s testimony would not have impeached
K.E.’s testimony regarding her false imprisonment claim because K.E.’s testimony
regarding her fear and inability to leave occurred after Pollard interacted with her. Filing
No. 10-3 at 16. And, aside from K.E. failing to testify about Pollard’s presence at Pham’s
house, his testimony largely confirmed K.E.’s. Id. Moreover, while the state appellate
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court did not discuss the alleged treatment of the dog in its opinion, even if Pollard had
testified that the dog was treated well by Moss (contradicting K.E.’s testimony), this sole
contradiction is unlikely to have any effect on the remainder or K.E.’s testimony. Finally,
Moss’ generalized statement that his counsel failed to expound upon other ways that
Pollard’s testimony would have purportedly impeached K.E.’s testimony is simply an
unsupported conclusion.
A federal court must presume factual determinations made by a state court are
correct, unless a petitioner “rebut[s] the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1). Moss supplies no such evidence. As
such, Subparts Two and Three relating to Pollard shall be denied.
3. Subpart Four
In Subpart Four, Moss concludes his counsel was ineffective for failing to make an
offer of proof regarding the testimony of excluded witnesses Pollard and Aurterburn.
Filing No. 1 at 62; Filing No. 18 at 29. On direct appeal, the state appellate court found
that this claim lacked merit as follows:
Moss argues that his trial counsel was ineffective in failing to make an offer
of proof regarding the testimony of excluded witnesses Peter Pollard and
Austin Arterburn. The record affirmatively refutes this claim. The record
establishes that trial counsel did make an offer of proof with respect to both
witnesses. Moss first called an investigator hired by the defense who
interviewed Pollard in February 2016. The investigator testified as to what
Pollard told him about what he observed on the night of May 14, 2015, into
the morning of May 15. Moss also made an offer of proof by calling
Arterburn to explain the testimony he would have given if he had been
permitted to testify at trial.
Filing No. 10-3 at 17.
A review of the record supports the state appellate court’s factual findings. See
Filing No. 10-18 at 30-38, 55-59. Therefore, as there is no basis for this Court to find the
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state appellate court’s findings were based on an unreasonable determination of the facts
under 28 U.S.C. § 2254(d)(2), Subpart Four shall be denied.
E. Claim Five
Moss argues that the trial court erred by not discharging his case for a speedy trial
violation. Filing No. 6 at 2.
Prior to trial, Moss filed a motion for discharge, alleging both federal and state
constitutional violations and state statutory violations of his right to a speedy trial. Filing
No. 10-12 at 149-50. Following a hearing, the trial court denied Moss’ motion finding his
statutory claim lacked merit as the State still had “at least 56 days remaining…to bring
[Moss] to trial,” he had waived his statutory right to a speedy trial by requesting
continuances, and that his constitutional claims also failed as after balancing all of the
factors a court must consider none were indicative of a constitutional violation. Id. at 154-
60. Petitioner did not appeal the trial court’s order, instead raising his speedy trial claims
on direct appeal. See Filing No. 10-5 at 17-18.
On appeal, the state appellate court found that it had no jurisdiction over Moss’
state statutory speedy trial claim because Moss had not appealed the trial court’s order
in the 30-days after the trial court denied his motion for discharge as required by Nebraska
law. Filing No. 10-3 at 5 (citing State v. Williams, 761 N.W.2d 514, 519–20 (Neb. 2009).
And, the court found it need not address his constitutional speedy trial claims as, although
Moss’ pretrial motion alleged both state statutory and constitutional speedy trial violations,
his appeal failed to address his constitutional claims.39 Id.
39 Although Moss’ Direct Appeal does contain a heading seeking discharge due to “violations of Moss’
statutory and constitutional rights to a speedy trial,” the argument section only discusses his state statutory
claim relating to the trial court’s calculation of excludable time periods. Filing No. 10-5 at 17-18.
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Moss’ statutory claims are not properly before this Court as they are solely a matter
of state law. See Nance v. Norris, 392 F.3d 284, 289 (8th Cir. 2004) (“errors of state law
are not cognizable in federal habeas courts”). And, Moss’ constitutional claims are
procedurally defaulted because Moss failed to raise them in his Direct Appeal. See Filing
No. 10-7 at 1, 4-13.
For these reasons, Claim Five shall be denied.
F. Claim Six
Moss asserts that the trial court erred in not granting a directed verdict for
insufficiency of evidence,40 see Filing No. 1 at 19; Filing No. 18 at 33, alleging that, due
to ineffective assistance of his trial counsel, he was unable to present any impeachment
evidence regarding K.E.’s testimony or any evidence of his innocence, resulting in a
fundamental miscarriage of justice. Filing No. 18 at 33. The state appellate court
40 In addressing Moss’ sufficiency claim the state appellate court first found that it was unclear whether
Moss’ motion to dismiss at the close of the State's evidence was intended to be a motion for directed verdict
based upon the following:
At the close of the State's evidence, rather than moving for a directed verdict, Moss made
an oral motion to dismiss. This motion could be considered the equivalent of a motion for
directed verdict, but in arguing his motion, Moss referred back to the incident involving the
electronic device, and not the sufficiency of the evidence. The State responded to the
motion on the grounds Moss asserted but also as to whether the State presented prima
facie evidence to support the charges. And the district court concluded that a prima facie
case had been made. Thus, the record is unclear as to whether Moss’ motion to dismiss
at the close of the State's evidence was intended to be a motion for directed verdict based
upon the State's alleged failure to present a prima facie case.
Filing No. 10-3 at 8.
The Court of Appeals, assuming Moss’ motion was a motion for directed verdict ultimately found:
Moss has waived any challenge to the denial of his motion because he presented evidence
after the motion was denied. In a criminal trial, after a court overrules a defendant's motion
for a dismissal or a directed verdict, the defendant waives any right to challenge the trial
court's ruling if the defendant proceeds with trial and introduces evidence, but the
defendant may challenge the sufficiency of the evidence for the convictions. State v.
Duncan, 293 Neb. 359, 878 N.W.2d 363 (2016). Accordingly, to the extent Moss made a
motion for a directed verdict at the close of the State's case-in-chief, a challenge to the
denial of that motion has been waived.
Id. at 8–9.
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disagreed, finding that sufficient evidence in the form of K.E.’s “credible” testimony
supported Moss’ first degree sexual assault and first degree false imprisonment
convictions and that no sufficiency analysis was required to establish Moss’ protection
order violation as Moss conceded to the violation. Filing No. 10-3 at 9–10.
The Court’s review of a habeas petition that alleges insufficiency of the evidence
is governed by Jackson v. Virginia, 443 U.S. 307 (1979). “Under Jackson, a habeas
petitioner is entitled to relief if [the court] conclude[s] that upon the record evidence
adduced at the trial no rational trier of fact could have found proof of guilt beyond a
reasonable doubt.” Brende v. Young, 907 F.3d 1080, 1085 (8th Cir. 2018), cert. denied,
140 S. Ct. 74 (2019), reh’g denied, 140 S. Ct. 634 (2019) (quoting Nash v. Russell, 807
F.3d 892, 897 (8th Cir. 2015)). A court does not re-weigh the evidence when applying
this standard, resolution of all inconsistencies must be resolved in favor of the
prosecution, and relief is granted only if the conclusion that the evidence satisfied the
Jackson sufficiency of the evidence standard was both incorrect and unreasonable. Id.
Here, while the state appellate court did not cite Jackson v. Virginia when
addressing this claim, see Filing No. 10-3 at 9–10, “[a] reasonable application of
established federal law ‘does not require citation of [United States Supreme Court]
cases—indeed, it does not even require awareness of [the] cases, so long as neither the
reasoning nor the result of the state-court decision contradicts them.’” See Cox v. Burger,
398 F.3d 1025, 1030 (8th Cir. 2005) (quoting Early v. Packer, 537 U.S. 3, 8, (2002))
(emphasis in original). The state appellate court correctly applied the essence of Jackson
v. Virginia to the question of whether the evidence was sufficient to support [Moss’]
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conviction for first degree sexual assault and first-degree false imprisonment,41 in an
objectively reasonable manner. As such, neither the reasoning nor the result contradicts
Jackson v. Virginia.
Moss also fails to establish that the adjudication of the claim by the state appellate
court resulted in a decision that was based on an unreasonable determination of the facts
in light of the evidence presented. The court found that the State presented evidence
from which the jury could have found the lack of consent requirements for first degree
sexual assault and that the State presented evidence from which the jury could have
found that Moss knowingly restrained K.E. under terrorizing circumstances as required
for first degree false imprisonment, citing to K.E.’s testimony in both instances. The facts
cited are confirmed by the trial and enhancement hearing transcripts. Thus, the state
appellate court could, and did, find the evidence sufficient to support Moss’ convictions.
Finally, this Court cannot look at the impeachment evidence Moss claims exists
but was not presented at his trial and then reassess the credibility of trial witnesses
considering the alleged contents of the unpresented evidence. See Thiel v. Schuetzle,
200 F.3d 1120, 1122-23 (8th Cir. 1999). Where a claim was adjudicated on the merits in
state court, pursuant to Section 2254(d)(1) and the United States Supreme Court’s
holding in Cullen v. Pinholster, further evidentiary development of the claim in federal
court is barred, limiting review of the claim “to the record that was before the state court
that adjudicated the claim on the merits.” 563 U.S. 170, 181 (2011).
41 As Moss conceded the protection order violation, the state appellate court correctly determined no
sufficiency analysis was required with respect to his conviction for violation of a protection order. See Filing
No. 10-3 at 10; see also Filing No. 10-5 at 30 (admitting a protection order violation).
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Given the foregoing, Moss is not entitled to relief on Claim Six, and therefore it
shall be denied.
G. Claim Seven
Moss raises six additional ineffective assistance of counsel claims in Claim Seven,
each of which is governed by the two-part test set forth in Strickland, as previously
discussed.
1. Subpart One – Failure to offer the testimony of Jennifer York
Moss argues that Jennifer York “would have testified to her examination of [the]
damaged [P]hone and the level of destruction not being within industry standards” but did
not due to his counsel’s ineffectiveness. Filing No. 1 at 60. Specifically, he contends his
counsel failed to properly endorse and introduce York’s testimony, failed to properly
subpoena her to testify, and failed to make an offer of proof regarding her testimony.42
Filing No. 18 at 29.
In addressing his ineffective assistance claim, the state appellate court found that
Moss failed to establish prejudice under Strickland as the introduction of York’s testimony
would not have changed the outcome of Moss’ trial. Filing No. 10-3 at 14. Moss now
reiterates the same arguments presented to the state courts: that York would have
provided an alternative theory as to what happened to the Phone, providing reasonable
doubt as to the government’s intentions when the decision was made to use a recovery
procedure which might destroy it, and her testimony would have confirmed that the
government could have accessed the information stored on the Phone without destroying
42 Moss also appears to allege that the trial court erred in sustaining the government’s objection to York’s
introduction. See Filing No. 18 at 29. To the extent he intends to raise such a claim here, it must be
dismissed as procedurally defaulted as Moss never raised this claim in his Direct Appeal. See Filing No.
10-5.
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it. Filing No. 18 at 34. However, none of Moss’ arguments provide a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would
have been different.43 As noted by the state appellate court, York’s testimony regarding
other optional procedures for accessing the information in the Phone without its
destruction, while it may be evidence of negligence, it is not evidence of bad faith on the
government’s part. Filing No. 10-3 at 14; see also Bugh,701 F.3d at 895 (accidental
destruction of potentially exculpatory evidence is not bad faith); Iron Eyes, 367 F.3d at
786 (negligent destruction of evidence with potential exculpatory value does not constitute
bad faith).
Ultimately, as there is no basis for finding that the state appellate court’s decision
resulted in an unreasonable application of law or fact under 28 U.S.C. § 2254(d), Subpart
One shall be denied.
2. Subpart Two – Failure to provide a meaningful defense
Moss alleges that his trial counsel was ineffective for failing to provide a meaningful
defense. Filing No. 1 at 61. While Moss alleged a failure to provide a meaningful defense
claim in his Direct Appeal, see Filing No. 10-3 at 14, because his argument relied solely
on two other ineffective assistance claims (counsel’s failure to successfully offer cell
phone records into evidence at trial and his failure to properly subpoena and identify two
witnesses), the state appellate court did not separately address this claim and instead
denied those claims separately. Id.
43 It appears Petitioner intends to argue that York’s testimony would have supported his Brady claim relating
in Claim Two. To that extent, his argument regarding the York testimony was addressed in the section
addressing his Ground Two claim. See supra.
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Here, to the extent that Moss raises the same claim he raised in his Direct Appeal,
he is not entitled to relief as seen infra addressing Subparts Three and Four of Claim
Seven (addressing the same claims he raised in support of his meaningful defense claim
in his Direct Appeal). If, however, Moss is raising a claim separate from those Subparts,
such a claim would be procedurally defaulted because they were not fairly presented to
the state courts. For these reasons, Subpart Two shall be dismissed.
3. Subpart Three – K.E.’s cell phone records
Moss argues he was denied effective assistance of trial counsel because his trial
counsel failed to lay a proper foundation to introduce K.E.’s cell phone records, which
could have been utilized to: (1) impeach K.E.’s claim that she had no contact with Moss
after the Incident; (2) open up a line of questioning regarding the content of each call K.E.
made to Moss totaling over four hours between the Incident and the time of Moss’ arrest
including requiring K.E. to explain why she would contact Moss after the incident if she
was “so scared of him”; and have her explain the contents of the text messages she sent
Moss. Filing No. 18 at 35. Upon review of the record, there is no support that Moss was
prejudiced under Strickland due to the omission of the cell phone records.
During Moss’ direct examination at his trial, his counsel attempted to admit cell
phone records (hereinafter “Trial Exhibit 39”), see Filing No. 10-20 at 10-29, arguing they
would impeach K.E.’s testimony that she had no telephonic communication with Moss
following the Incident. Filing No. 10-18 at 155. The trial court found that Trial Exhibit 39
could not be admitted as no foundation was laid which would allow the records to be
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submitted into evidence.44 Filing No. 10-18 at 157-58. However, even if Trial Exhibit 39
had been admitted into evidence it did not support the claim that K.E. and Moss had
spoken for over four hours after the Incident. Trial Exhibit 39 is a Verizon business record
containing calls between April 25, 2015, and May 15, 2015, with the last call listed taking
place on May 15, 2015 at 14:46, and none of the calls appear to be to or from Moss’
stated phone number of 402-807-6151. Filing No. 10-20 at 10-29.
In his Direct Appeal, Moss’ made the same error regarding the contents of Trial
Exhibit 39 and argued it “contained a 58 minute call between [K.E.] and Moss the day
after the incident and over 4 hours of phone calls between the parties over the next 2
months prior to his arrest.” Filing No. 10-5 at 25, 43-44. The state appellate court declined
to address the merits finding that the record was insufficient to address it. See Filing No.
10-3 at 15.
In his PCM, the claim was again raised, and the same error was made regarding
the contents of Trial Exhibit 39. Filing No. 10-8 at 44. Moss also alleged his trial counsel
was ineffective for “failing to pursue introduction of [Trial Exhibit 39] after the prosecutor[’]s
sustained foundational objection” and for failing to subpoena a custodian of records to lay
a proper foundation for their introduction. Filing No. 10-8 at 48–49. He contended he
was prejudiced by his counsel’s errors as Trial Exhibit 39 would have established K.E.
presented untruthful testimony regarding her communications with him, Filing No. 10-8 at
49, and that but for his counsel’s failure the jury would have been presented with clear
evidence that K.E. was not truthful about her communications with him. Filing No. 10-8
44 Of note, Moss’ trial counsel did not submit or attempt to submit any other cell phone records as evidence
at Moss’ trial. See Filing Nos. 15, 16, 17, 18, 19, and 20.
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at 51. And finally, he alleged that he was in possession of K.E.’s cell phone records
showing four and one-half hours of calls between K.E. and Moss in the two months
following the Incident (the “New Phone Records”) and Facebook messages of K.E.
reaching out to Moss “continually” after the Incident.45 Filing No. 10-8 at 52.
The state appellate court rejected Moss’ claims as follows:
Moss also asserts that he was entitled to an evidentiary hearing on his claim
that his trial counsel was ineffective in failing to successfully gain admittance
of cell phone records into evidence at trial. Moss argues that the cell phone
records which trial counsel offered would show more than 4 hours of
conversation between him and K.E. in the 2 months following the May 14
and 15, 2015, incident. Moss argues that these records would therefore
contradict K.E.'s testimony that she did not talk to him on the phone after
the incident occurred, impairing her credibility with the jury.
The cell phone records Moss’ [sic] trial counsel offered into evidence at trial
do not indicate the owner of the cell phone but consist of 20 pages depicting
cell phone calls made and received between April 25 and May 15, 2015.
Thus, the records, on their face, do not support Moss’ allegation that
between May 16 and July 27, he and K.E. talked on the phone for more
than 4½ hours total. Nor would the cell phone records contradict K.E.'s
testimony that she did not have phone conversations with Moss after the
incident, which ended on May 15, because the records contain no
information beyond May 15.
Moreover, when trial counsel was attempting to lay foundation for these
records at trial, he asked Moss to confirm K.E.'s phone number, and Moss
replied that "it was 775-857 something" but that he did not recall the rest of
the number. The cell phone records trial counsel offered into evidence do
not list any calls to or from a phone number that begins with 775-857. Thus,
these records would not assist in establishing that Moss and K.E. spoke on
the phone before, during, or after the relevant events.
If there is a second set of cell phone records depicting calls made at later
dates as Moss suggests in his brief, they were not offered into evidence at
trial. Moss’ claim in his postconviction motion does not allege that trial
counsel was ineffective in failing to offer this set of records into evidence;
rather, he alleges only that trial counsel failed to successfully gain
admittance of cell phone records that were offered into evidence because
45 It is unclear to this Court if Moss’ reference in his PCM is to the same records as contained in Trial Exhibit
39 or additional previously undisclosed cell phone records.
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he failed to lay proper foundation. And only one exhibit containing cell
phone records was offered at trial. Accordingly, Moss has failed to establish
that he was prejudiced by counsel's failure to gain admittance of the cell
phone records into evidence at trial. Therefore, the district court did not err
when it denied postconviction relief on this claim without an evidentiary
hearing.
Filing No. 10-4 at 6.46
In his PCM PFR, Moss again raised his claims regarding K.E.’s cell phone records,
but, for the first time, he attached what the state appellate court referred to as the “second
set of cell phone records” depicting calls from May 15, 2015, through August 1, 2015.
See Filing No. 10-11 at 7-9, 22-63.
Here, Moss again raises the claim that his trial counsel was ineffective for failing
to lay a proper foundation for Trial Exhibit 39, but he also appears to seek review of this
claim in conjunction with the New Phone Records, showing calls from later dates. See
Filing No. 1 at 61; Filing No. 18 at 39-40. As an initial matter, this Court cannot consider
any argument relating to the New Phone Records as they were not given a full round of
review by the state courts as required for fair presentment. Therefore, any claim seeking
to address them is procedurally defaulted.
Regarding the exhausted portion of his argument, like he did before the state
courts, Moss claims that his trial counsel was ineffective for failing to successfully gain
admittance of Trial Exhibit 39. Filing No. 10-18 at 144, 155-56. However, a review of the
record confirms the state appellate court’s decision: that there is nothing in Trial Exhibit
39 that would alter or otherwise change the outcome of Moss’ trial as Trial Exhibit 39
46 The cell phone records his trial counsel failed to admit were the records contained in Trial Exhibit 39, not
the New Phone Records containing calls from later dates which Moss has filed in conjunction with his
Motion to Supplement. Compare Filing No. 10-20 at 10-29, with Filing No. 45 at 72-110.
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contains no evidence of any continued communication between K.E. and Moss after the
Incident. See Filing No. 10-20 at 29.
Given the record before the Court, Moss cannot establish that the decision of the
state appellate court was contrary to, or involved an unreasonable application of,
Strickland because Moss cannot establish that but for his counsel’s failure to lay proper
foundation to admit the cell phone records from Trial Exhibit 39 at his trial, he would have
been acquitted. For these reasons, Subpart Three fails in its entirety either on the merits
or as procedurally defaulted and must be denied.
4. Subpart Four – Failure to document
Moss argues he was denied the effective assistance of counsel because counsel
failed to properly document the exculpatory nature of the information in his destroyed
Phone. Filing No. 18 at 35. The state appellate court rejected this claim on the merits on
direct appeal. Filing No. 10-3 at 15.
Moss presents no clear and convincing evidence that the decision of the state
appellate court was contrary to, or involved an unreasonable application of, Strickland.
In fact, Moss does not allege that his counsel attesting to the importance of the information
contained on the Phone would have changed the outcome of his trial in any way. As such,
Subpart Four shall be denied.
5. Subpart Five – Failure to call prosecutor Hessig as a witness
Moss argues he was denied the effective assistance of counsel because trial
counsel failed to call prosecutor Hessig as a witness at the hearing on his motion to
dismiss regarding her alleged requests for a PIN code for the Phone. Filing No. 1 at 62.
This Subpart was rejected on the merits (as previously discussed in Claim Two), as the
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record refutes Moss’ claim that he was unaware of the government’s need for the Phone’s
PIN code and that the government was under no obligation to ask for it, rendering any
testimony Hessig may have provided as irrelevant to the outcome of Moss’ trial. Filing
No. 10-3 at 15.
While, as previously discussed when addressing Claim Two, this Court is not
convinced by the state appellate court’s finding that Moss was aware of the government’s
need for the PIN prior to the Phone’s destruction, it does not affect the finding that Moss
failed to establish prejudice under Strickland in relation to Hessig’s purported testimony
as Moss does not explain how Hessig’s testimony, even if she testified that the
government did not ask Moss or his counsel for the Phone’s PIN code, would have
changed the outcome of his trial.47
For these reasons, Subpart Five shall be denied.
6. Subpart Six – Failure to withdraw as Moss’ counsel and provide testimony
Finally, Moss argues he was denied effective assistance because his trial counsel
failed to withdraw from his representation and testify at the motion to dismiss hearing
regarding the lack of request by the State for the Phone’s PIN code. Filing No. 6 at 3. On
direct appeal this claim was rejected. Filing No. 10-3 at 17.
This Court finds that the state appellate court’s decision was not contrary to, nor
involved an unreasonable application of, federal law as set forth in Strickland. Moss
47 Moreover, whether Moss was or was not aware of the need for the Phone’s PIN code, Moss does not
raise, and the Court is not aware of, any holding requiring the State to ask for the PIN code for a criminal
defendant’s phone when trying to recover the evidence it may contain, even if the defendant indicates the
phone is of evidentiary value to him. In fact, some courts have determined that the government cannot
compel a criminal defendant to provide PIN, passcode, or other access to a defendant’s cell phone as to
do so may violate the defendant’s Fifth Amendment right against self-incrimination. See United States v.
Brown, No. 23-3074, 2025 WL 223881, at *12 (D.C. Cir. Jan. 17, 2025) (citing Kastigar v. United States,
406 U.S. 441, 445, (1972)).
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cannot establish that, but for his counsel’s failure to withdraw from his representation and
testify at the hearing on the motion to dismiss regarding the lack of request by the
prosecutor for the Phone’s PIN code, he would have been acquitted. Therefore, Moss
has failed to establish prejudice under Strickland. For this reason Subpart Six shall be
denied.
V. CERTIFICATE OF APPEALABILITY
Respondent does not require a certificate of appealability to appeal the Court's
decision. Moss does, however, and 28 U.S.C. § 2253(c)(2) provides that a certificate of
appealability should be granted “only if the applicant has made a substantial showing of
the denial of a constitutional right.” This requires a petitioner to demonstrate “that
reasonable jurists could debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Miller–El v. Cockrell, 537 U.S. 322, 336
(2003) (quotation omitted).
In this case, Moss has failed to make a substantial showing of the denial of a
constitutional right on all claims except Claim One, Subparts One and Three, upon which
the writ has been granted. The Court is not persuaded that the remainder of the claims
raised in Moss’ Petition are debatable among reasonable jurists, that a court could resolve
the claims differently, or that the claims deserve further proceedings. Accordingly, the
Court will not issue a certificate of appealability in this case.
IT IS THEREFORE ORDERED THAT:
1. Moss’ Petition for a Writ of Habeas Corpus, Filing No. 1, is granted in part and
denied in part.
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A. The Court finds that Claim One, Subparts One and Three warrant
habeas relief. The trial court abused its discretion by utilizing the Stun-Belt without
making findings on the record regarding its use, which prejudiced Moss, resulting in a
substantial and injurious effect on the jury's verdict at his trial.
B. The Court finds that all remaining Claims and Subparts alleged in the
Petition do not warrant relief for the reasons set forth herein and are hereby denied with
prejudice.
2. Execution of the writ is stayed for 90 days from the date this Memorandum and
Order becomes final (including any appeals that may be taken) to permit the State to
commence a new trial on Moss’ charges. If the State fails to comply, Respondent must
release Moss from custody.
Dated this 4th day of March, 2026.
BY THE COURT:
Joseph F. Bataillon
Senior United States District Court
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