United States District Court, D. Nebraska
MAMO K. KHALAF, Petitioner,
STATE OF NEBRASKA, et al., Respondent.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
matter is before the court on Petitioner's Petition for
Writ of Habeas Corpus (“petition”). (Filing No.
1.) Respondent argues that the petition is barred by
the limitations period set forth in 28 U.S.C. § 2244(d).
Respondent also argues that Petitioner's claims have been
procedurally defaulted. The court agrees and will dismiss the
petition with prejudice.
September of 2011, Petitioner was charged in the District
Court of Lancaster County Nebraska “with six felony
counts following two incidents in which the State alleged he
threatened his estranged wife's uncle with a firearm in a
park and then, while out on bond, shot his wife's
brother.” (Filing No. 11-3 at CM/ECF p. 1.) Petitioner
pled no contest to terroristic threats, first degree assault,
and use of a firearm to commit a felony. (Filing No. 11-14 at
CM/ECF pp. 16-17, 30-31.) Petitioner was sentenced to
consecutive prison terms of 20 months to 5 years for
terroristic threats, 10 to 15 years for first degree assault,
and 10 to 15 years for use of a firearm to commit a felony.
(Filing No. 11-11 at CM/ECF pp. 24-27.)
with new counsel, filed a direct appeal to the Nebraska Court
of Appeals, alleging that his sentence was excessive, that
consecutive sentencing was in error, and that trial counsel
was ineffective for failing to (1) conduct depositions, (2)
advise Petitioner to proceed to trial, and (3) obtain reduced
sentences. (Filing No. 11-4 at CM/ECF pp. 6, 17.) The
Nebraska Court of Appeals summarily affirmed Petitioner's
convictions and sentences on February 8, 2013, finding that
his claims regarding sentencing were without merit and that
the record on direct appeal was insufficient to review his
claims of ineffective assistance of counsel. (Filing No. 11-1
at CM/ECF p. 2.) The Nebraska Supreme Court denied
Petitioner's request for further review on April 10,
2013. (Id. at CM/ECF p. 3.)
April 8, 2014, Petitioner filed a motion for postconviction
relief in state district court, which was denied. (Filing No.
11-12 at CM/ECF pp. 28-43, 81-83.) Petitioner argued that (1)
trial counsel was ineffective for failing to (a) properly
interview/depose witnesses to support an alibi defense and
(b) move to sever Counts I through Counts III from Counts IV
through VI of the information, and (2) appellate counsel was
ineffective in failing to assign and argue the two instances
of trial counsel's ineffectiveness.
Nebraska Court of Appeals affirmed the state court's
denial of the postconviction motion on May 8, 2015. (Filing
No. 11-3.) The Court of Appeals found that (1)
Petitioner's claim that trial counsel was ineffective for
failing to file a motion to sever was procedurally barred
because it was not raised on direct appeal and (2) the
remaining claim of ineffective assistance of trial counsel
and both claims of ineffective assistance of appellate
counsel were without merit.
filed a request for further review, asserting that trial
counsel was ineffective by failing to properly
interview/depose witnesses to support an alibi defense.
(Filing No. 11-10.) The request for further review was denied
by the Nebraska Supreme Court on July 22, 2015. (Filing No.
11-2 at CM/ECF p. 2.) The mandate issued on August 12, 2015.
filed his habeas petition on December 14, 2015. (Filing No.
1.) On initial review, the court found that
Petitioner's habeas petition asserted:
(1) He was deprived the effective assistance of trial counsel
in violation of the Sixth and Fourteenth Amendments to the
United States Constitution because his trial attorney (1)
failed to properly conduct pretrial investigation, (2) failed
to fully prepare for trial, (3) misrepresented/misadvised him
as to the law and potentially viable defenses, and (4) failed
to file a motion to sever counts.
(2) He was denied the effective assistance of appellate
counsel in violation of the Sixth and Fourteenth Amendments
because appellate counsel failed to argue that (1) trial
counsel was ineffective by failing to locate and interview
witnesses and (2) trial counsel was ineffective by failing to
move to sever counts.
(Filing No. 8.)