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Martin v. State

United States District Court, D. Nebraska

November 29, 2016

CARL A. MARTIN, Petitioner,
v.
STATE OF NEBRASKA, Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         Carl A. Martin (Martin) has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. His petition is far too late.

         His 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[1] 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.

         BACKGROUND

         At the 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, 2041[2] 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.

         The Nebraska Supreme Court's opinion affirming the conviction and sentences describes in chilling detail what Martin did to several women:

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. 1989).

         The 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 ...


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