United States District Court, D. Nebraska
CARL A. MARTIN, Petitioner,
STATE OF NEBRASKA, Respondent.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
Martin (Martin) has filed a petition for writ of habeas
corpus under 28 U.S.C. § 2254. His petition is far too
claim--that he is entitled to equitable tolling or the like
because he has a mental illness, as shown by the fact that he
was adjudicated a Mentally Disordered Sex Offender at the
time he was sentenced in 1988 and otherwise--is entirely
lacking in merit and borders on the frivolous. I will grant
the Respondent's motion for summary judgment and dismiss
this matter with prejudice.
high end, Martin was sentenced to over 200 years in prison.
His projected release (“jam”) date is October 4,
2108, and his projected parole eligibility date is April 7,
according to the Nebraska Department of Correctional
Services' internet site for which I take
judicial notice. The facts leading up to Martin's 1988
sentences are disturbing.
Nebraska Supreme Court's opinion affirming the conviction
and sentences describes in chilling detail what Martin did to
In count I, the prosecutrix testified that in the late
evening of July 21, 1987, as she was driving home in Lincoln,
Nebraska, a man sat up in the back seat of her car and put
his left arm around her shoulders and his right hand up to
her neck. The defendant stated, “[D]on't move or
I'll cut your throat, ” and she said,
“[P]lease don't hurt me.” He told her he
wanted money, and after driving for some time, she was
directed to a parking lot of an elementary school. The
defendant put a sweatshirt over her face, told her to remove
her shoes, and tied her wrists together.
After they got out of the car, the defendant told her he
wanted to have sex with her and to lie down. The defendant
pulled up her skirt and rolled her over on her side. The
prosecutrix asked the defendant not to have anal intercourse,
and he said he would not. The defendant attempted to
penetrate her anally with his finger, but she told him it
hurt, so he stopped. The defendant subjected the prosecutrix
to vaginal intercourse while she was still tied with her eyes
covered. When they returned to her car, the defendant untied
her wrists. They drove to another area where the defendant
got out and returned $2 he had taken from her earlier.
The prosecutrix went to her boyfriend's apartment and
told him what had happened. The police were called and she
went to the hospital for an examination. The prosecutrix had
marks on her wrists which caused her discomfort and a number
of superficial abrasions on her back and buttocks. The doctor
who examined her testified that she did not have any injury
or trauma to her vaginal area.
The prosecutrix in count II testified that on July 29, 1987,
at 14th and Garfield Streets in Lincoln, Nebraska, at about
10:30 p.m., she was returning to her car after a trip to
Omaha. The defendant approached the car and asked for a ride
to Malone Community Center, to which she agreed. When they
arrived at the center, the defendant attempted to give her
money and then directed the prosecutrix into a nearby alley.
The prosecutrix tried to leave the alley but the defendant
stopped her. The defendant then forced her out of the car,
and she screamed for help. The defendant pushed her to her
knees and began to choke her. The defendant told her to
remove her clothes, ripped the shirt she had been wearing,
and blindfolded her with it. He then told her to lie down on
the ground. He removed his clothing and lay down on top of
her. He directed her to rub his penis until he had an
erection, and he attempted unsuccessfully to penetrate her
vagina with his penis frontally and from the rear. He led her
to another area and was successful in penetrating her vagina
with his penis.
After these acts, he tied her wrists with a nightgown and had
her lie down in the back seat of the car. The defendant drove
to 16th and South Streets, told her to count to 25, and left.
At trial the prosecutrix testified that as a result of the
assault she received abrasions on her back and bruises on her
legs. There was no trauma noted on the pelvic examination. As
to the choking, the victim testified she could not breathe,
she was gasping for air, and she could not get air into her
lungs. In response to questions, the victim testified,
“I could picture myself ... like being found, like dead
somewhere, with my parents having to come find me and seeing
myself dead and not believing that-not believing that it was
happening, ” and, when counting, “I saw myself
like getting up out of the back of the car and him still
being there and him being there and ready to kill me.”
In counts III and IV, a first degree sexual assault count and
use of a knife to commit a felony count, the
prosecutrix-victim went to a laundromat on the morning of
August 7, 1987. Another woman had been present but, at some
point, the victim was alone with the defendant, who came up
behind her, grabbed her, put a knife to her throat, and
threatened to use the knife if she moved. He took her into
the bathroom, made her sit on the floor, and closed the door.
The defendant told her to take off her clothes and tied her
shirt over her eyes. He had her lie down on the floor. He
spread her legs apart, lay down on top of her, and had sexual
intercourse with her for 2 to 3 minutes. When he was done, he
told her to count to 30 after he left.
After the prosecutrix heard the door close, she removed her
blindfold and got dressed. The laundromat was empty, but just
outside the door she spotted the woman who had been in there
earlier. The victim told the woman she had been raped, and
the woman, who later identified the defendant as the man in
the laundromat, helped her contact the police and her
husband. The emergency room doctor testified there was no
trauma to the patient's vaginal area, but described the
victim as being emotionally upset.
The robbery and use of a knife crimes, counts V and VI,
occurred an hour or so later that same day, August 7, 1987.
At about 8:19 a.m., the victim left her home and went to take
her car out of the garage. She placed her purse on top of the
cardboard sunscreen which was sitting on the front passenger
side floor. She started to put her keys in the ignition and
shut her car door, but the door would not shut because a man
was standing next to her with a knife.
The defendant told her to give him her purse. She was unable
to speak or move, and the man told her again to give him her
purse. She told him to take the purse, and the defendant,
holding the knife in his right hand, reached over her with
his left hand and took the purse. He pulled her out of the
car and said he was going to tie her up. She told him not to
tie her up because she had a job interview, and he did not.
He took her keys and, as he left, he shut the garage door,
leaving the keys on the ground. She ran into the house and
called the police. The victim identified the defendant in
court as the man who took her purse.
State v. Martin, 440 N.W.2d 676, 679-681 (Neb.
mandate of the Nebraska Supreme Court was filed on September
6, 1989. (Filing no. 12-2 at CM/ECF p. 1.) Martin
was in no ...