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Martinez v. Hansen

United States District Court, D. Nebraska

April 27, 2018

FRANCISCO J. MARTINEZ, Petitioner,
v.
BRAD HANSEN, TSCI Warden, and SCOTT FRAKES, NDCS Director, Respondents.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge.

         The Petitioner (Francisco J. Martinez) has filed a petition for writ of habeas corpus raising two claims regarding ineffective assistance of counsel. Respondents have answered, filed the relevant state court records and briefed the matter. Petitioner has responded. Because both claims are procedurally defaulted and no excuse has been shown, I now deny and dismiss the petition with prejudice.

         Claims

         I allowed the following two claims of ineffective assistance of counsel to proceed:

CLAIM ONE: (1) The defendant's sixth amendment rights were violated at trial in that defendant's trial counsel's performance fell below the standard of a lawyer with ordinary training and skill in the defense of a criminal case, creating clear error and rendered an unfair trial, as more specifically enumerated in Claim Two; (2) Trial counsel failed to call or depose any witnesses on defendant's behalf to corroborate the relationship of the defendant and the alleged victim. Trial counsel could have called: Sonia Martinez and Pedro Ramirez Cabrera.
CLAIM TWO: Appellate counsel provided deficient and prejudicial representation in several respects. (1) He failed to raise that the district court erred by not sustaining trial counsel's motion for a directed verdict due to the State failure to prove that the events occurred in Douglas County, Nebraska, an essential element of the crimes charged; (2) He failed to raise that the district court erred in allowing the State to replay the 911 tape during closing arguments after it had already been played once to the jury during the State's case in chief; (3) He failed to raise that the district court erred in failing to present a proper verdict form that should have included the use of force or coercion as an aggravating factor that must be proven to the jury pursuant to State v. Payan; (4) He should have raised that the district court improperly instructed the jury. Instruction No. 5 indicated that the presumption of innocence is evidence in favor of the defendant and continues throughout the trial “until he shall have been proved guilty beyond a reasonable doubt.” This statement implies that the defendant's guilt is an inevitability and the instruction is not in conformity with NJI2d Crim. 1.2 or 9.2, which states that the defendant is presumed innocent. Which means that “you must find him not guilty unless and until you decide that the State has proved him guilty beyond a reasonable doubt.”; (5) He should have raised that the district court erred in allowing the State to present evidence which varied from the information and presented a second, uncharged theory of guilt to Count IV of the Information, to wit: Tampering with a witness; (6) He should have raised ineffective assistance of trial counsel. Trial counsel failed to request a motion in limine to preclude testimony or evidence that defendant was married to an individual other than the victim as the information was irrelevant and unfairly prejudicial pursuant to Neb. Rev. Stat. § 27-401-403; (7) He should have raised ineffective assistance of trial counsel. Trial counsel failed to research, prepare or present any proposed jury instructions knowing that the Court's final instructions misstated the law, to wit: Instruction No. 5; (8) He should have raised ineffective assistance of trial counsel. Trial counsel failed to move for a mistrial when the State improperly sought to induce testimony of prior bad acts evidence that was inadmissible pursuant to Neb. Rev. Stat. § 27- 404(2) and 609; (9) He should have raised ineffective assistance of trial counsel. Trial counsel failed to object to the State being able to replay the 911 tape during closing arguments. State v. Jacob, 253 Neb. 950 (1998); (10) He should have raised ineffective assistance of trial counsel. Trial counsel failed to object to evidence presented to the jury that was different from the underlying facts alleged in the information, to wit: Count IV: Tampering with a witness; (11) He provided deficient and prejudicial performance when he failed to advise defendant that he was required to bring his claims for relief to the highest state court in order to preserve those claims for federal habeas review. In Nebraska, this is accomplished by filing a petition for further review.

         (Filing No. 12 at CM/ECF pp. 1-3.)

         Background

         Martinez was convicted after a jury trial in Douglas County District Court of first degree sexual assault, use of a deadly weapon to commit a felony, terroristic threats, and tampering with a witness. (Filing No. 14-1 at CM/ECF p. 1.) The state district court sentenced Martinez to consecutive sentences of 15 to 15 years' imprisonment for first degree sexual assault, 10 to 10 years' imprisonment for use of a deadly weapon, and to 1 to 1 year imprisonment each for terroristic threats and tampering with a witness. (Id. at CM/ECF p. 2.)

         Martinez appealed his convictions and sentences to the Nebraska Court of Appeals. He was represented by new and different counsel on direct appeal. (Id. at CM/ECF p. 15.) Martinez alleged on direct appeal that the evidence was insufficient to support his convictions, his sentences were excessive, and that he received ineffective assistance of trial counsel. (Id. at CM/ECF p. 1.)

         The Nebraska Court of Appeals found that, although Martinez made “generalized statements” concerning trial counsel's failures, the only issue he specifically raised regarding ineffective assistance of counsel was that “the outcome would have been different in this if counsel could have brought witnesses to collaborate [sic] the relationship of the defendant and the plaintiff.” (Id. at CM/ECF p. 15.) The Court found Martinez's assigned error without merit (Id. at CM/ECF p. 16.) On March 27, 2013, the Nebraska Court of Appeals affirmed Martinez's convictions and sentences. (Id.) Martinez did not petition the Nebraska Supreme Court for further review. (Filing No. 14-3 at CM/ECF p. 2.)

         At some point, it is clear that Martinez knew of his right to file a petition for further review as he wrote a letter to his lawyer in August of 2013 asking her to do so and if she was unwilling to do so to advise him. (Filing No. 14-15 at CM/ECF p. 116.) The record also reflects that his appellate lawyer responded in writing that she would not and did not file a petition for further review “because I felt that you are going to have only positive results that you could have, if any at all, from post conviction.” (Id. at CM/ECF p. 118.)

         Starting on March 27, 2014, first pro se and then through retained counsel, Martinez commenced a state post-conviction action. (Id. at CM/ECF pp. 2-161; Filing No. 14-2 at CM/ECF p. 2; Filing No. 14-13 at CM/ECF pp. 2-11.) He raised multiple claims of trial error, ineffective assistance of trial counsel and ineffective assistance of appellate counsel. The state district court denied Martinez post-conviction relief without an evidentiary hearing. (Filing No. 14-13 at CM/ECF pp. 28-40.)

         Martinez appealed, pro se, the state district court judgment to the Nebraska Court of Appeals. Martinez assigned and argued on appeal that the state district court erred in failing to grant him an evidentiary hearing on some, but not all, of the claims raised in his amended post-conviction motion. (Filing No. 14-2 at CM/ECF pp. 4-5.) He also alleged that the state district court erred when it (1) conducted a hearing on its own motion and (2) received testimonial evidence relating to ineffective assistance of counsel and failed to make findings of fact and conclusions of law as to specific claims. (Id. at CM/ECF pp. 7-8.) On September 5, 2017, the Nebraska Court of Appeals affirmed the denial of Martinez' motion for post-conviction relief, but vacated the part of Martinez's sentence subjecting him to lifetime community supervision. (Id. at CM/ECF p. 10.)

         On October 6, 2017, Martinez filed an untimely motion to extend the time to petition the Nebraska Supreme Court for further review. (Filing No. 14-4 at CM/ECF p. 2.) The request was denied because it was filed out of time. (Id.)

         Martinez admits in his petition that, with the assistance of another inmate, he litigated his post-conviction appeal. (Filing No. 1 at CM/ECF p. 7.) Martinez had until October 5, 2017, 30 days from the date of the release of the opinion of the Nebraska Court of Appeals, to petition the Nebraska Supreme Court for further review. See Marshall v. Marshall,902 N.W.2d 223, 235 (Neb. 2017) (“Neb. Ct. R. App. P. § 2-102(F)(1) (rev. 2015) requires that a petition for further review and memorandum brief ‘must be filed within 30 days after the release of the opinion of the Court of Appeals or the entry of the order of the Court of Appeals finally disposing of the appeal, whichever occurs ...


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