JOSE E. GONZALEZ, Petitioner,
ROBERT P. HOUSTON, Respondent.
MEMORANDUM AND ORDER
RICHARD G. KOPF, Senior District Judge.
This matter is before the court on Petitioner Jose E. Gonzalez's ("Petitioner" or "Gonzalez") Petition for Writ of Habeas Corpus. (Filing No. 1.) Gonzalez argues that he is entitled to a writ of habeas corpus based on the following claims:
Claim One: Petitioner was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because his trial counsel (1) failed to communicate and discuss the case; (2) failed to use DNA evidence to prove Petitioner's innocence; (3) failed to object to evidence offered at the hearing on Petitioner's motion in limine; (4) entered into an improper stipulation during the hearing on Petitioner's motion in limine; (5) failed to respond to the state's Rule 404 motion; (6) failed to advise Petitioner of his rights under Rule 404; (7) failed to secure the defense witnesses requested by Petitioner; (8) failed to file the "statutory notice of intent required in sexual assault cases and failed to advise [Petitioner] of those rights under the sexual assault intent statute"; (9) did not allow Petitioner to be present during voir dire; (10) presented "out dated medical research material" during Petitioner's trial; (11) failed to object to exhibits 1 and 2; (12) failed to adequately prepare for trial; and (13) failed to object to the expert testimony of "McFee and Kerry Crosby."
Claim Two: Petitioner was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because his appellate counsel failed to raise the following issues on appeal: (1) denial of defense witnesses Andres Nolasco and Katherine Rector; (2) denial of right to be present during voir dire; (3) denial of right to a fair trial due to judicial misconduct; (4) denial of right to a fair trial due to prosecutorial misconduct; (5) denial of right to gather defense evidence; (6) denial of effective assistance of counsel; (7) denial of right to trial by an impartial jury; and (8) denial of right to a proper jury instruction.
Claim Three: Petitioner's conviction was obtained in violation of the Fifth, Sixth, and Fourteenth Amendments because Petitioner was "deni[ed] the right to call defense witnesses and cross[-]examine witnesses."
Claim Four: Petitioner's conviction was obtained in violation of the Sixth and Fourteenth Amendments because Petitioner was denied the right to a speedy and fair trial.
For the reasons set forth below, a grant of a writ of habeas corpus is not warranted on any of these issues.
On December 8, 2008, the State charged Gonzalez by information in the Dakota County District Court ("state district court") with sexual assault in the first degree. (Filing No. 7-1 at CM/ECF p. 15.) See also State v. Gonzalez, No. A-10-179, 2010 WL 4241022, *1 (Neb. Ct. App. Oct. 26, 2010) (hereinafter referred to as " Gonzalez I "). The evidence presented at trial showed that:
Gonzalez began sexually assaulting his stepdaughter during the summer of 2007. Although Gonzalez was not charged as a result of any incident that occurred prior to October 2007, the State introduced evidence of such incidents to demonstrate a continuous course of conduct by Gonzalez.
The victim testified that during the summer of 2007, Gonzalez would come to her room after she would go to bed and would attempt to kiss her on the face and on various parts of her body, including on the area "between her legs." The victim's testimony demonstrated that this behavior continued through October 2007.
The victim's testimony revealed that at various times between October 31, 2007, and October 31, 2008, Gonzalez would come into her room, usually at night, and take off her pants and underwear. She testified that Gonzalez would sometimes rub his penis on her vagina and that other times Gonzalez would "put his tongue in [her] vagina" or put his finger in her vagina. She testified that Gonzalez told her that he wished he could "make love" to her. She indicated that by October 2008, Gonzalez was coming into her room almost every night to touch her. At one point during this time period, Gonzalez told the victim that he knew what he was doing was wrong, but he was unable to control himself. The victim testified that Gonzalez never took off his clothes during these incidents.
The State also presented evidence that the victim underwent a sexual assault examination. The results of that examination revealed an irregularity in the victim's hymen. Such irregularity was described as a "notch, " and testimony from medical personnel indicated that such a notch was consistent with the victim's account of what had happened between the victim and Gonzalez.
Gonzalez testified at trial. During his testimony, he denied ever inappropriately touching the victim. He testified that he was never alone with the victim and that he never had the opportunity to do the things she alleged had occurred. In addition, Gonzalez testified that the victim wanted to go live with her biological father. Through his testimony, he suggested that the victim had falsely accused him of hurting her so that she would be allowed to move.
After hearing all of the evidence, the jury convicted Gonzalez of first degree sexual assault. The district court subsequently sentenced Gonzalez to 30 to 32 years' imprisonment.
Gonzalez I, 2010 WL 4241022 at *1-2.
Gonzalez's appeal from his conviction and sentence was dismissed by the Nebraska Court of Appeals for lack of jurisdiction because counsel did not properly complete the poverty affidavit. Id. at *2.
B. First Post-Conviction Motion
Gonzalez filed a motion for post-conviction relief ("post-conviction motion") in the state district court on December 7, 2009. (Filing No. 7-1 at CM/ECF pp. 99-101.) On January 26, 2010, the state district court granted Gonzalez post-conviction relief. ( Id. at CM/ECF p. 110.) The state district court determined that Gonzalez's counsel failed to perfect a direct appeal, and that counsel's conduct was presumptively prejudicial. ( Id. ) As relief, the state district court granted Gonzalez a new direct appeal. ( Id. )
C. New Direct Appeal
On February 22, 2010, Gonzalez filed a notice of appeal from the original criminal prosecution. ( Id. at CM/ECF p. 1.) On direct appeal, Gonzalez argued that the state district court erred in making certain evidentiary rulings, including finding that evidence of the results of a DNA test and the testimony of the technician who completed the DNA test were inadmissible, and also in allowing hearsay testimony from several witnesses. Gonzalez also argued that the court erred in allowing a witness to testify about the "grooming process." Finally, Gonzalez argued that he received the ineffective assistance of trial counsel. ( Id. at CM/ECF pp. 116-171.)
The Nebraska Court of Appeals denied relief on October 26, 2010, in a written opinion. See Gonzalez I, 2010 WL 4241022 at *8. The Nebraska Supreme Court denied a petition for further review on January 27, 2011. (Filing No. 7-5 at CM/ECF p. 2.)
D. Second Post-Conviction Motion and Appeal
Gonzalez filed a second motion for post-conviction relief on September 28, 2011, in the state district court. (Filing No. 7-3 at CM/ECF pp. 21-42.) Gonzalez argued in this motion that the state district court had committed various acts of "misconduct, " and also that he had received the ineffective assistance of trial and appellate counsel. ( Id. at CM/ECF pp. 24-39.)
The state district court denied Gonzalez's post-conviction motion on January 4, 2012. ( Id. at CM/ECF pp. 107-110.) The state district court determined that Gonzalez was not entitled to post-conviction relief because the motion "[did] not raise any new issues other than those already disposed of in his initial appeal, or issues he was aware of at the time of the initial appeal." ( Id. at CM/ECF p. 110.) Gonzalez timely appealed the denial of post-conviction relief to the Nebraska Court of Appeals, which denied relief in a written opinion. State v. Gonzalez, A-12-073, 2012 WL 3740570 (Neb. Ct. App. Aug. 28, 2012) (hereinafter referred to as " Gonzalez II "). The Nebraska Supreme Court denied a petition for further review on November 28, 2012. (Filing No. 7-5 at CM/ECF p. 5.)
E. Habeas Corpus Petition
Gonzalez filed his Petition in this court on January 23, 2013. (Filing No. 1.) In response to the Petition, Respondent filed an answer, brief in support of answer, and the relevant state court records. (Filing Nos. 7, 8, and 9.) Thereafter, Gonzalez filed a brief in support of his Petition. (Filing No. 10.) Gonzalez also filed an "Objection" to Respondent's Answer and Brief, which the court considers ...