Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Garibo v. State

United States District Court, D. Nebraska

March 4, 2019

ARMANDO GARIBO, Petitioner,
v.
STATE OF NEBRASKA, and BRAD HANSEN, Institution's Warden, Respondents.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge.

         Armando 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[1]-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.

         Background

         Garibo 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. 50-51.)

         On direct appeal, and with counsel different than the one who represented him at trial and at sentencing[2], 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.[3] (Filing no. 10-4.)

         Garibo's 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.)

         After 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, [4] 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. § 2-102(F). (Id.)

         Garibo 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 trial counsel.

         The 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. 21-25.)

         Garibo 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. (Id.)

         Garibo 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.[5] 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.)

         The relevant state court records have been filed by Respondents. They are in separate filings. (Filing no. 10, filing no. 16, filing no. 17.)

         Garibo's sole habeas claim is that trial counsel was ineffective ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.