United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge.
Garibo (Petitioner or Garibo) has submitted an amended
petition (filing no. 7) for a writ of habeas corpus
attacking his state court conviction and sentence. I deny and
dismiss the petition with prejudice due to procedural
defaults. Petitioner failed to provide the Nebraska Supreme
Court with an opportunity for further review of his direct
appeal and also his post-conviction appeal. Thus, his only
claim-ineffective assistance of trial counsel
(for a variety of reasons)- has not gone through one complete
round of review. Nebraska generally does not allow successive
post-conviction actions and thus Petitioner cannot cure the
defaults. There is no basis to excuse the defaults either.
was convicted of first degree sexual assault of a child on
December 9, 2015. He was sentenced to 40 to 50 years in
prison on February 4, 2016. (Filing no. 10-3, pp.
direct appeal, and with counsel different than the one who
represented him at trial and at sentencing, Garibo argued
that the trial court erred in overruling his motion for
directed verdict, and that he was unable to receive a fair
trial due to his attorney's ineffective assistance, to
wit: for not objecting to the state's questioning of the
officer who translated Garibo's interview; for not
objecting to the victim's counselor's testimony; for
not objecting to the use of telephone calls made by Garibo
from the jail; for failing to cross examine the counselor
more extensively; and for failing to communicate with him in
a language (Spanish) Garibo understood. (Filing no.
convictions were affirmed in a memorandum opinion filed by
the Nebraska Court of Appeals on November 22, 2016. The Court
of Appeals found the district court did not err in overruling
Garibo's motion for a directed verdict because there was
sufficient evidence by which the jury could have found him
guilty. It also resolved some, but not all, of the
ineffective assistance of counsel claims on direct appeal. It
held that counsel was not ineffective for not objecting to
the officer's testimony or to the counselor's
testimony. The ineffective assistance of counsel claims
regarding the jail house calls, the failure to cross examine
the victim's counselor more thoroughly, and the failure
to communicate in Spanish were not resolved as the record was
insufficient. (Filing no. 10-2.)
the Court of Appeals issued its opinion, appellate counsel
moved to withdraw and that motion was granted. (Filing no.
10-1.) Garibo, proceeding pro se,  attempted to
petition the Nebraska Supreme Court for further review of the
Court of Appeals decision, but his petition for further
review was denied for failure to file a brief in support of
the petition, as required by Neb. Ct. R. App. P §
2-102(F). (Filing no. 10-1.) After that denial,
Garibo attempted to file another petition for further review
together with a brief but that petition was denied as
untimely pursuant Neb. Ct. R. App. P. §
filed his petition for post-conviction relief on January 30,
2017. (Filing no. 10-9.) In it, he asserted that
there was “structural error” in the jury
instructions, and again asserted ineffective assistance of
district court directed the state to respond to the motion
for post-conviction relief, and once it had, the district
court denied the motion without an evidentiary hearing. Among
other things, the district court found that Garibo had raised
some ineffective assistance of counsel claims on direct
appeal, which preserved those for post-conviction review but
he had not raised them again as a part of his post-conviction
submission. As for his new claims of ineffective assistance
of counsel, they were procedurally barred as they were
evident at the time of the direct appeal and Garibo had fresh
counsel for the direct appeal. (Filing no. 10-9, pp.
appealed the decision of the district court to the Court of
Appeals, and the state filed a motion for summary affirmance.
(Filing no. 10-8.) On May 7, 2018, the Nebraska
Court of Appeals granted the state's motion for summary
affirmance of the denial of post-conviction relief.
then submitted to the Nebraska Supreme Court a “Notice
of Appeal” which the clerk of that court generously
labeled a petition for further review.
Id. The “Notice of Appeal, ”
construed as a petition for further review, was denied as
being improper as to form pursuant to Neb. Ct. R. App. P
§ 2-102(F). (Id.)
relevant state court records have been filed by Respondents.
They are in separate filings. (Filing no. 10, filing
no. 16, filing no. 17.)
sole habeas claim is that trial counsel was ineffective ...