MEMORANDUM AND ORDER
LAURIE SMITH CAMP, Chief District Judge.
This matter is before the Court on Petitioner Marco Enrique Torres, Jr.'s ("Torres") Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254, request for a new trial, request for an evidentiary hearing, and request to expand the record. (Filing No. 1.) Magistrate Judge F.A. Gossett conducted an initial review of the motion (Filing No. 8) and required the Respondent to file either a motion for summary judgment or state court records in support of an answer. The Respondent filed an Answer (Filing No. 12), supporting Brief (Filing No. 13), and relevant state court records (Filing Nos. 10 & 11.) Torres filed a Brief in response to Respondent's Answer and Brief. (Filing No. 14.) For the reasons stated below, Torres's Petition will be dismissed with prejudice and his requests for a new trial, an evidentiary hearing, and an expansion of the record will be denied.
On November 7, 2007, after a jury trial in the District Court of Hall County, Nebraska, Torres was convicted of kidnapping, robbery, and two counts of using a deadly weapon to commit a felony, for which he was sentenced to an aggregate period of 90 to 140 years imprisonment.
The following facts are drawn from the Nebraska Court of Appeals' description of the evidence established during Torres's jury trial in its opinion, State v. Torres, No. A-11-1051, 2012 WL 5395345 (Neb. Ct. App. Nov. 6, 2012), denying Torres's motion for postconviction relief.
In 2007, Torres and Billy Packer ("Packer") interacted as a result of their mutual involvement in buying and selling illegal drugs in and around Grand Island, Nebraska. At some point that year, Torres proposed an arrangement with Packer whereby Torres would supply Packer with cocaine and, in exchange, Packer would supply Torres with methamphetamine. Packer agreed to the arrangement; however, Packer soon changed his mind as it appeared that Torres was unlikely to supply any cocaine.
On February 13, 2007, Packer was driving Torres and Jimmy Taylor ("Taylor") to the home of Jose Cross ("Cross"). On the way to Cross's house, Torres, who was in the back seat, pulled out a gun, pointed it at Packer, and told Packer to stop the car. Packer stopped the car. Torres then pointed the gun at Taylor, who was in the front passenger seat, and told Taylor to get out of the car. Taylor complied. Then, Torres told Packer to drive to Cross's house. Cross met Packer and Torres outside. While outside Cross's house, Torres held his hand inside his coat as if he had a gun and instructed Cross to go inside. Once the three men were inside, Torres pulled out a gun.
Torres, Packer, and Cross went upstairs where Cross's girlfriend Gina Padilla ("Padilla") was present. Torres told Cross to bind Packer with duct tape. Cross complied. Then, Torres removed approximately $800, Packer's license, and a picture of Packer's children from Packer's wallet. Torres also instructed Cross and Padilla to write down Packer's bank card number and then told them to go get food, which they did. During the time Packer was bound with tape, Torres explained that Packer's failure to provide an ounce of methamphetamine for someone in Texas put Torres and his family in danger. Torres let Packer go sometime around midnight.
On March 26, 2007, investigators located Torres in Pasadena, Texas. At that time, Torres had Packer's cellular telephone, a picture of Packer's children, and paper with Packer's personal identification information written on it.
Torres's trial counsel, James R. Mowbray ("Mowbray"), filed a direct appeal on Torres's behalf claiming that the sentence imposed was excessive. Torres also raised ineffective assistance of counsel in a supplemental pro se brief on direct appeal. In his pro se brief, Torres claimed that his trial counsel, Mowbray, was ineffective for failing to conduct a proper pre-trial investigation, failing to present exculpatory evidence known to the defense at trial, failing to cross-examine trial witnesses effectively, and failing to subject the prosecution's case to meaningful adversarial testing.
On September 17, 2008, the Nebraska Court of Appeals affirmed Torres's convictions and sentences, but the court found the record inadequate at that time to address Torres's ineffective-assistance-of-counsel claims. On October 29, 2008, the Nebraska Supreme Court denied Torres's petition for further review.
State Postconviction Proceedings
On December 11, 2008, Torres filed a pro se verified motion for postconviction relief in the District Court of Hall County. In that motion, Torres alleged a Brady violation, ineffective assistance of trial counsel, and ineffective assistance of appellate counsel. With regard to his ineffective-assistance-of-counsel claim, Torres claimed that Mowbray was ineffective for failing to investigate exculpatory evidence, failing to crossexamine the prosecution's witnesses effectively at the time of trial, and failing to put on a meaningful defense. On November 17, 2011, the district court denied Torres's verified motion for postconviction relief after an evidentiary hearing.
Torres appealed the district court's denial of his verified motion for postconviction relief. In a brief to the Nebraska Court of Appeals filed on February 22, 2012, Torres argued that the district court erred in denying his verified motion for postconviction relief by failing to find a Brady violation, by failing to find that his trial counsel failed to investigate exculpatory evidence, and in considering opinion testimony of attorneys regarding whether evidence was "game changing."
On November 6, 2012, the Nebraska Court of Appeals issued an unpublished opinion affirming the district court's denial of Torres's motion for postconviction relief. Torres filed a petition for further review with the Nebraska Supreme Court claiming that the court of appeals erred in failing to find a Brady violation and in failing to find ineffective assistance of counsel. Torres also claimed the court of appeals erred in making six factual findings related to alleged exculpatory evidence. In his petition for further review, Torres did not present his due process violation claim, Claim Three below. The Nebraska Supreme Court denied the petition without an opinion and issued mandate on February 8, 2013.
Pursuant to 28. U.S.C. § 2254, Torres filed this Petition in federal court on February 6, 2013, raising the following three grounds for relief:
Claim One: Torres was denied due process because the State of Nebraska withheld over 800 pages of documents ( Brady violation) which prevented ...