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Balvin v. Frakes

United States District Court, D. Nebraska

January 13, 2016

SONNY D. BALVIN, Petitioner,
v.
SCOTT FRAKES, Respondent.

MEMORANDUM AND ORDER

RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE

Sony D. Balvin (Balvin) has filed a petition for writ of habeas corpus under the provisions of 28 U.S.C. § 2254 challenging his conviction for first-degree sexual assault. The Respondent (essentially the State of Nebraska) has filed an answer and a full and complete record of the state court proceedings. There is no need for an evidentiary hearing. The matter has been fully briefed.

I now deny the petition with prejudice. Albeit in summary fashion, the reasons for my denial follow next.

Balvin’s Claims

Balvin has two claims with various parts:

Claim One: Petitioner was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because trial counsel (a) failed to impeach Petitioner’s accuser at trial; and (b) failed to raise a hearsay objection when the prosecution offered evidence of “recorded telephone conversations” between Petitioner and two other parties.
Claim Two: Petitioner was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because appellate counsel failed to argue that (a) trial counsel was ineffective for failing to impeach Petitioner’s accuser; (b) trial counsel was ineffective for failing to raise a hearsay objection when the prosecution offered evidence of “recorded telephone conversations” between Petitioner and two other parties; (c) the trial court erred in admitting evidence of letters from Petitioner to his former girlfriend; and (d) the trial court erred in admitting testimony by Petitioner’s fiancé concerning her sexual relationship with Petitioner.

(Filing no. 6.)

Brief Background

In 2009, Balvin was convicted by a jury of first-degree sexual assault. As a result of his conviction, he was sentenced to 24 to 36 years of imprisonment. In addition, the trial court found that the offense was aggravated, which justified the imposition of lifetime community supervision after Balvin’s release from prison.

On direct appeal, Balvin had new counsel, different from trial counsel. The conviction and prison sentence were affirmed by the Nebraska Court of Appeals, but the matter was remanded to the district court in order for a jury to make a finding concerning whether Balvin’s offense was aggravated and, thus, made him subject to the imposition of lifetime community supervision. State v. Balvin, 18 Neb.App. 690, 791 N.W.2d 352 (2010) (Balvin I) (a petition for further review to the Nebraska Supreme Court was denied).

On remand, the district court amended the previously imposed sentence by removing the imposition of lifetime community supervision. Balvin remained sentenced to 24 to 36 years of imprisonment. Balvin appealed from the amended sentencing order. The Nebraska Court of Appeals affirmed the sentence. State v. Balvin, No. A-11-244, 2011 WL 6251088 (Neb.App. Dec. 13, 2011) (a petition for further review to the Nebraska Supreme Court was denied) (Balvin II ).

Balvin then filed a state postconviction action, which was denied and dismissed by the district court. His appeal was unsuccessful as well. State v. Balvin, No. A-13-529, 2014 WL 3421148, at *1 (Neb. Ct. App. July 15, 2014) (a petition for further review was denied by the Supreme Court on November 19, 2014).

Balvin filed his petition in this court on February 17, 2015. The Respondent has answered. The Respondent has also filed the state court records. (Filing no. 9.) The matter has been briefed and is now submitted.

Legal Overview

The law on federal habeas corpus is well-established. Therefore, I provide only an overview of the most pertinent aspects of that law as applied to ...


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