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Khalaf v. State

United States District Court, D. Nebraska

November 15, 2016

MAMO K. KHALAF, Petitioner,
v.
STATE OF NEBRASKA, et al., Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         This 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.

         I. BACKGROUND

         In 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.)

         Petitioner, 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.)

         On 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.

         The 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.

         Petitioner 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. (Id.)

         Petitioner 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.)

         II. ANALYSIS

         1. Statute ...


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