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Gallegos-Palafox v. Hansen

United States District Court, D. Nebraska

November 16, 2017

AURELIO GALLEGOS-PALAFOX, Petitioner,
v.
BRAD HANSEN, Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge.

         This matter is before the court on Petitioner Aurelio Gallegos-Palafox's (“Petitioner”) Petition for Writ of Habeas Corpus. (Filing No. 1.) For the reasons that follow, Petitioner's habeas petition is dismissed with prejudice.

         I. BACKGROUND

         A. Conviction and Sentence

         Petitioner's convictions arise out of a plea agreement. Prior to the plea agreement, he was charged with three counts of first degree sexual assault, each a Class II felony, and one count of first degree sexual assault of a child, a Class IB felony, in the Platte County District Court (“state district court”). (Filing No. 11-12 at CM/ECF pp.2-3; see also Filing No. 11-3 at CM/ECF pp.1-4.) As a result of the plea agreement, Petitioner pled guilty to one count of first degree sexual assault, a Class II felony, and one count of incest, a Class III felony. (Filing No. 11-12 at CM/ECF pp.4-5; Filing No. 11-16 at CM/ECF pp.46-69.) In exchange for his pleas, the State dismissed the other pending charges and agreed not to make a specific sentencing recommendation. (Filing No. 11-16 at CM/ECF pp.46-69.)

         The factual basis for the pleas established that on April 14, 2011, 16-year-old S.L. reported that she had been raped by her stepfather, Petitioner, at their house in Columbus, Nebraska. (Id. at CM/ECF pp.63-65.) S.L. told police that it happened just the night before, and it also happened two days earlier. (Id.) On both occasions, according to S.L., Petitioner came into her bedroom and she told him to leave, but he refused and raped her on the floor of her bedroom as she closed her eyes and covered her face with her hands. (Id.) S.L. reported that it occurred against her will, but she was afraid to yell or fight back because she did not want to hurt her mother who was in the residence. (Id.) Police also spoke with Petitioner about the allegations and he initially denied having any intercourse with S.L., but eventually admitted that he had sexual intercourse involving penetration with her twice within the past week. (Id.)

         After the factual basis was provided, the following exchange occurred between the district court and the prosecutor:

THE COURT: And the State's evidence, I take it, Ms. Herman, would show that the sexual penetration that you have described today was without the consent of the victim; is that correct?
MS. HERMAN: Yes. The victim indicated she was not willing, but was afraid to fight back.

(Id. at CM/ECF p.65).

         The district court then asked Petitioner if the factual basis was true and accurate, and Petitioner said yes. (Id.) The court asked Petitioner if he had discussed his case with his attorney, including any potential defenses that might be available, and Petitioner said yes. (Id. at CM/ECF p.63.) The court also spoke with Petitioner's attorney, who said that he was aware of no reason the court should not accept Petitioner's guilty pleas and that the pleas were consistent with the evidence. (Id. at CM/ECF p.66.) Following this discussion, the court accepted Petitioner's pleas and subsequently sentenced him to an aggregate period of 20 to 30 years' imprisonment. (Id. at CM/ECF pp.66-67, 80-81.)

         B. Direct Appeal (“Gallegos-Palafox I”)

         A direct appeal was not initially filed, but Petitioner subsequently filed a motion for postconviction relief and was awarded a new direct appeal due to his trial counsel's failure to file a direct appeal. (Filing No. 11-12 at CM/ECF pp.9- 13.) Petitioner then filed a direct appeal with the assistance of a new attorney and the sole assignment of error on appeal was excessive sentence. (Filing No. 11-6 at CM/ECF p.5.) The Nebraska Court of Appeals rejected Petitioner's claim and entered a 1-page order granting the State's motion for summary affirmance. (Filing No. 11-1.)

         C. Postconviction Proceeding and Appeal (“Gallegos-Palafox II”)

         Petitioner subsequently filed a second motion for postconviction relief in the state district court on January 5, 2015. (Filing No. 11-13 at CM/ECF pp.2-19.) Petitioner alleged that his direct appeal counsel was ineffective in two respects. First, he alleged that his appellate counsel was ineffective for failing to assign as error that the factual basis was insufficient to support his plea to first degree sexual assault given that the factual basis did not establish that the sex was nonconsensual. (Filing No. 11-3 at CM/ECF p.5.) Second, Petitioner alleged appellate counsel was ineffective for failing to assert that trial counsel was ineffective for (a) not advising him that consent is a defense to first degree sexual assault, (b) advising him to waive his preliminary hearing, (c) advising him to plead guilty without first conducting minimal investigation, such as deposing S.L., and (d) advising him to plead despite a record of consent. (Id.)

         The state district court denied Petitioner's postconviction motion without an evidentiary hearing. (Filing No. 11-13 at CM/ECF pp.25-32.) Petitioner appealed, and the Nebraska Court of Appeals affirmed the district court's judgment. (Filing No. 11-3.) The Nebraska Court of Appeals concluded that all of Petitioner's claims were without merit, and thus, they were properly denied without an evidentiary hearing. (Id.) Petitioner sought further review in the Nebraska Supreme Court, which the Court denied on June 8, 2016. (Filing No. 11-4.)

         D. Habeas Petition

         Petitioner timely filed his Petition in this court on June 22, 2016.[1] (Filing No. 1.) In response to the Petition, Respondent filed an Answer, a Brief, and the relevant state court records. (Filing Nos. 11, 13, 14.) Petitioner filed a Brief in Response to Respondent's Answer and Request for an Evidentiary Hearing. (Filing Nos. 19, 22.) Respondent filed a reply brief. (Filing No. 23.) This matter is fully submitted for disposition.

         II. DISCUSSION

         Liberally construed, Petitioner's habeas petition contains the same two claims attacking counsel's representation on direct appeal that he raised in his most recent postconviction proceeding in state court. (See Part I.C. supra.) First, Petitioner argues that appellate counsel was ineffective because counsel failed to raise on direct appeal the sufficiency of the factual basis to support his plea. Second, Petitioner claims that appellate counsel was ineffective for failing to raise on direct appeal the following claims of ineffective assistance of trial counsel: (1) trial counsel failed to advise Petitioner that consent was a defense; (2) trial counsel advised Petitioner to waive preliminary hearing; (3) trial counsel advised Petitioner to plead guilty without first investigating; and (4) trial counsel advised Petitioner to plead guilty despite proof of consent. The Nebraska state courts adjudicated each of these claims on the merits and so the court's analysis is governed by the provisions set forth in 28 U.S.C. § 2254(d).

         A. Standard Under 28 U.S.C. § 2254(d)

         When a state court has adjudicated a habeas petitioner's claim on the merits, there is a very limited and extremely deferential standard of review both as to the law and the facts. See 28 U.S.C. § 2254(d). Section 2254(d)(1) states that a federal court may grant a writ of habeas corpus if the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). As explained by the Supreme Court in Williams v. Taylor, 529 U.S. 362 (2000), a state court acts contrary to clearly established federal law if it applies a legal rule that contradicts the Supreme Court's prior holdings or if it reaches a different result from one of that Court's cases despite confronting indistinguishable facts. 529 U.S. at 405-06. Further, “it is not enough for [the court] to ...


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