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Alhakemi v. Frakes

United States District Court, D. Nebraska

February 25, 2019

ALI ALHAKEMI, Petitioner,
v.
SCOTT R. FRAKES, Director, Nebraska Correctional Services, and MICHELL CAPPS, Warden, Nebraska State Penitentiary, Respondents.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         Ali Alhakemi (Petitioner or Alhakemi) has filed a habeas corpus petition attacking his conviction and sentence for being a drug dealer and a habitual offender. Respondent has submitted an answer, the relevant state court records, and a brief. Although given an opportunity to submit a reply brief, Petitioner has failed to do so within the time allotted. I now deny the petition and dismiss it with prejudice.

         Claims

          The 33-page typewritten petition is prolix and scattershot in nature but it is comprehendible and reflects a working knowledge of the English language. Respondents have, properly and fairly, boiled down the claims to these:

Claim One: Petitioner was denied effective assistance of trial counsel because trial counsel failed to properly investigate and gather evidence to support his defense. Petitioner was denied effective assistance of appellate counsel because appellate counsel failed to raise this issue on direct appeal. (Filing no. 1 at CM/ECF pp. 7-10, 26-28.)
Claim Two: Petitioner was denied effective assistance of trial counsel because trial counsel failed to use an Arabic interpreter to communicate with him at all times and because trial counsel failed to properly advise him of the evidence against him so that he could make a proper decision regarding the State's plea offer. Petitioner was denied effective assistance of appellate counsel because appellate counsel failed to raise these issues on direct appeal. (Id. at CM/ECF pp. 10-11, 26-28.)
Claim Three: Petitioner was denied due process of law and effective assistance of trial counsel because he was forced, despite his request otherwise, to have that specific trial counsel represent him. Petitioner was denied effective assistance of appellate counsel because appellate counsel failed to raise this issue on direct appeal. (Id. at CM/ECF pp. 13-18, 26-28.)
Claim Four: Petitioner was denied due process of law when the trial court denied a continuance motion. Petitioner was denied effective assistance of appellate counsel because appellate counsel failed to raise this issue on direct appeal. (Id. at CM/ECF pp. 18-19, 26-28.)
Claim Five: Petitioner was denied effective assistance of trial counsel because trial counsel affirmatively misadvised him, without an interpreter present, to proceed to trial and to decline the State's plea offer. Petitioner was denied effective assistance of appellate counsel because appellate counsel failed to raise this issue on direct appeal. (Id. at CM/ECF pp. 11-13, 19-28.)

         The Question of An Interpreter in this Court

         Perhaps to buttress his substantive claims, Alhakemi sought the services of an interpreter to prosecute this habeas action. He stated: “The Petitioner does not speak the english language, the legal aid here at the Nebraska State Penitentiary will no longer be available to prepare and assist the [Petitioner] in any further legal work.” (Filing no. 3.)

         I requested a response, and Respondents submitted an affidavit from the law librarian that none of the inmate legal aids spoke Arabic and thus any previous assistance received by Petitioner from the legal aids would have had to have been provided to the Petitioner in English. (Filing no. 14-3.) Furthermore, and as I shall next point out, Petitioner was able to consummate numerous drug transactions in English, over the phone and in person, and also during his interview with law enforcement after he was arrested he was able to converse using the English language and with no seeming difficulty. (Filing no. 14-2 at CM/ECF pp. 46-47, 116-123.) Still further, the record reveals that Petitioner conversed with the state trial judge in English and without the assistance of an interpreter[1] during the state court proceedings. (Filing no. 14-1 at CM/ECF pp. 8, 12-14; filing no. 14-2 at CM/ECF pp. 9-10, 166.) Finally, as the Court of Appeals noted, at the time of trial, Petitioner had been “in the United States for 21 years.” (Filing no. 18-1 at CM/ECF p. 7.[2])

         Background The Trial

         Alhakemi was charged with 4 counts of delivery of a controlled substance and 1 count of possession of a controlled substance. The information alleged that Alhakemi delivered methamphetamine on or about 4 separate dates in 2013, May 15, May 28, June 13, and July 5, and that he possessed methamphetamine on or about August 8. It also alleged that Alhakemi is a habitual criminal.

         At trial, the jury heard testimony from Jordan Wilmes, an investigator with the Lincoln-Lancaster County narcotics task force. On May 14, 2013, Wilmes met with a confidential informant (CI) who provided Wilmes the name and telephone number of a person the CI described as a source of methamphetamine in Lincoln. Wilmes researched the telephone number in a police database and confirmed the name associated with the telephone number was Alhakemi's. The CI also informed Wilmes that the methamphetamine source lived in the area of 12th Street and B Street in Lincoln, and Wilmes' research confirmed an address in that area for Alhakemi.

         At Wilmes' request, the CI placed a recorded call to the telephone number he provided to Wilmes. A copy of the recorded call was received into evidence at trial, and Wilmes confirmed that the voices that could be heard on the recording belonged to the CI and a man he came to know as Alhakemi. Wilmes testified that he recognized, based on his training and experience, that the conversation between the CI and Alhakemi was consistent with the arrangement of a narcotics transaction.

         The following day, the CI placed another recorded call to Alhakemi, and they arranged to meet. When the CI and Wilmes, who was working undercover, arrived at the agreed-upon location, Alhakemi got into the backseat of Wilmes' undercover vehicle. Alhakemi directed Wilmes to drive to a different location, at which Alhakemi exited the vehicle. About 15 minutes later, Alhakemi returned to Wilmes' vehicle and placed a plastic baggie containing a crystalline substance on the center console. The parties discussed a price, and Alhakemi was given $260 of drug task force buy money. Wilmes explained at trial that the drug task force provides him ...


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