United States District Court, D. Nebraska
ALBERTO C. MAGALLANES, Petitioner,
ROBERT MADSEN, Nebraska State Penitentiary Warden, Respondent.
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Court Judge.
(Magallanes) has filed a petition for writ of habeas corpus
challenging his conviction. Respondent has filed an answer,
the relevant state court records, and a brief. Petitioner has
filed his brief. Respondent has submitted a reply brief.
deny the petition with prejudice as all of the claims are
procedurally defaulted. Alternatively, and separately, I also
deny the ineffective assistance of counsel claim after giving
the Nebraska Court of Appeals the deference it is due.
an odd case but not a particularly difficult one. However,
due to its oddity, it is first helpful to understand the
essence of what Petitioner complains about. Petitioner was
charged in federal court with federal drug crimes, but that
case was dismissed on motion of the government before trial.
Petitioner ultimately got convicted in state court on similar
2009, a trooper pulled Petitioner over in a traffic stop on
I-80 because Petitioner crossed onto the shoulder or what is
otherwise known as the fog line. He did so twice, albeit for
only a few seconds. The trooper thought this behavior gave
him probable cause for a traffic stop under Neb. Rev.
Stat. § 60-6, 142 (West) because that statute
plainly provides that “[n]o person shall drive on the
shoulders of highways” with certain exceptions that
were obviously not applicable to Petitioner.
motion to suppress was filed. Based upon the recommendation
of Magistrate Judge Thalken, Judge Bataillon, my colleague,
suppressed the evidence that was seized after the Petitioner
gave consent to search the car following the traffic stop.
The judge believed that “it is readily apparent that
the purpose of Neb. Rev. Stat. § 60-6, 142 is to prevent
drivers from using the shoulder as a thoroughfare or primary
travel area.” United States v. Magallanes,
8:10CR107 (D. Neb. August 3, 2010). According to the judge,
since Petitioner was not using the shoulder as a thoroughfare
or primary travel area, the trooper lacked probable cause to
make the stop.
lost the suppression issue, but prior to trial, the
government then moved and on September 22, 2010, was granted
leave to dismiss the case under Federal Rule of Criminal
Procedure 48(a). Nebraska then decided to prosecute, and
Petitioner was ultimately convicted. The prosecutors in these
two cases were different-Mr. Sigler, an Assistant United
States Attorney, prosecuted the federal case and Mr.
Thompson, a Deputy Douglas County Attorney, prosecuted the
turns out, our judges' reading of Neb. Rev. Stat. §
60-6, 142 was incorrect. On August 30, 2012, Judge Bataillon
acknowledged as much in United States v. Rodriguez,
No. 8:12CR170, 2012 WL 5458427, at *1 & n. 2 (D. Neb.
Aug. 30, 2012), aff'd, 741 F.3d 905 (8th Cir. 2014),
vacated and remanded on other grounds, and
aff'd, 799 F.3d 1222 (8th Cir. 2015).
shortly thereafter, on December 21, 2012, the Nebraska
Supreme Court in Petitioner's direct appeal definitively
construed Nebraska law and made it clear that the trooper had
probable cause because “ [b]y applying the plain and
ordinary meaning of the words in the statute, any
crossing of the fog line onto the shoulder constitutes
driving on the shoulder and is a violation of § 60-6,
142.” State v. Magallanes, 824 N.W.2d 696, 701
(Neb. 2012) (affirming denial of suppression) (italics
having momentarily won the suppression battle in our court,
is upset that he lost the suppression war in the Nebraska
courts. And, now, I turn to the guts of this case.
condensed and summarized Petitioner's claims in my
Claim One: The prosecution in state court
followed the dismissal of a similar prosecution in this
federal court (8:10-cr-00107) where this court suppressed
evidence eventually resulting in a voluntary dismissal by the
United States under Federal Rule of Criminal Procedure 48(a)
and therefore the subsequent prosecution in the state court
violated the Constitution, for among other reasons, because
it (a) placed Petitioner in jeopardy twice and (b) denied
Petitioner due process of law. Cf. Chavez v.
Weber, 497 F.3d 796 (8th Cir. 2007).
Claim Two: Trial and appellate counsel were
both ineffective for failing to assert objections to the
state prosecution on the basis of the arguments advanced in
Claim Three: Neb. Rev. Stat. § 60-6,
142 (West) (driving on highway shoulders prohibited), the
basis for the traffic stop, is unconstitutionally vague and
overbroad and thus the prosecution predicated upon evidence
derived from the traffic stop violated the Constitution, for
among other reasons, because it: (a) denied petitioner due
process of law; and (b) denied Petitioner the right to be
free from unreasonable search and seizure.
2009, Petitioner was pulled over on Interstate 80 for driving
on the shoulder of the road, in violation of Neb. Rev. Stat.
§ 60-6, 142, after which he consented to a search of his
vehicle and several packages of cocaine and methamphetamine
were found in his vehicle. (Filing No. 17-1 at CM/ECF pp.
3-4; Filing No. 17-15 at CM/ECF pp. 2-3.) Charges were
initially filed against Petitioner in state court, but those
charges were later dismissed without prejudice and an
indictment was filed in federal court. (Filing No. 17-15 at
CM/ECF pp. 2-3.)
court ruled that the stop of Petitioner's vehicle was
unlawful, after which the original charges were filed again
in state court. (Id.) Petitioner filed a series of
motions to suppress, which were denied, and then a bench
trial took place and he was found guilty of possession with
intent to deliver over 140 grams of methamphetamine,
possession with intent to deliver over 140 grams of cocaine,
and two counts of failing to affix a drug tax stamp.
(Id.) He was sentenced to 20 to 40 years in prison
for each drug charge and one to two years for each tax stamp
conviction, all sentences to run concurrently. (Id.)
filed a direct appeal with assistance of the same counsel and
assigned two errors on appeal, both of which alleged that the
district court erred by denying his motion to suppress.
(See Filing No. 17-1 at CM/ECF pp. 4-5.)
Specifically, he alleged that the trooper lacked probable
cause and that accordingly, despite the consent to search,
the drugs should have been suppressed as fruit of the
poisonous tree. (Id.) The Nebraska Supreme Court
rejected Petitioner's claims on direct appeal but found
as a matter of plain error that the evidence was insufficient
to support the two convictions for failure to affix a drug
tax stamp, so the Court vacated those two convictions but
otherwise affirmed the district court's judgment and
sentence. (Id. at CM/ECF pp. 5-7.) Petitioner filed
a petition for a writ of certiorari with the U.S. Supreme
Court, which was denied. (Filing No. 17-3.)
2013, Petitioner filed a Verified Motion for Postconviction
Relief, along with a motion for leave to amend his motion.
(Filing No. 17-8 at CM/ECF pp. 1-5.) The district court
denied Petitioner's post-conviction motion without ruling
on the motion to amend, after which he appealed and the