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Magallanes v. Madsen

United States District Court, D. Nebraska

May 15, 2018

ALBERTO C. MAGALLANES, Petitioner,
v.
ROBERT MADSEN, Nebraska State Penitentiary Warden, Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Court Judge.

         Petitioner (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.

         I now 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.

         Preface

         This is 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 crimes.

         In 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.

         A 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.

         Having 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).[1] 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 state case.

         As it 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).

         And, 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 added).

         Petitioner, 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.

         Claims

         I condensed and summarized Petitioner's claims in my progression order:

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 One.
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.

         (Filing No. 8.[2])

         Background

         In 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.)

         Our 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.)

         Petitioner 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.)

         In 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 Nebraska ...


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