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State v. Fuentes

Supreme Court of Nebraska

April 19, 2019

State of Nebraska, appellee,
v.
Timothy L. Fuentes, appellant.

         1. Postconviction: Evidence: Appeal and Error. In an evidentiary hearing on a motion for postconviction relief, the trial judge, as the trier of fact, resolves conflicts in the evidence and questions of fact. An appellate court upholds the trial court's factual findings unless they are clearly erroneous.

         2. Effectiveness of Counsel. A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact.

         3. Effectiveness of Counsel: Appeal and Error. When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. With regard to questions of counsel's performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court's conclusion.

         4. Constitutional Law: Due Process: Trial: Judges. The right to an impartial judge is guaranteed under the Due Process Clauses of the U.S. and Nebraska Constitutions, the parameters of which are coextensive.

         5. Constitutional Law: Trial: Judges: Proof. In order to show a constitutional violation of the right to an impartial judge, a defendant must prove actual bias or structural error.

         6. Trial: Judges: Words and Phrases. Structural error occurs when the defendant shows that a judge has such a strong personal or financial interest in the outcome of the trial that he or she was unable to hold the proper balance between the State and the accused.

         7. Postconviction: Trial: Presumptions: Appeal and Error. Although structural error requires automatic dismissal if brought on direct appeal, [302 Neb. 920] not all structural error will result in a presumption of prejudice when raised in a motion for postconviction relief.

         8. Judges: Recusal. Instances in which the judge's impartiality might reasonably be questioned specifically include where the judge has a personal bias or prejudice concerning a party or a party's lawyer.

         9. Judges: Recusal: Presumptions. A defendant seeking to disqualify a judge on the basis of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality.

         10. Constitutional Law: Identification Procedures: Due Process. An identification procedure is constitutionally invalid only when it is so unnecessarily suggestive and conducive to an irreparably mistaken identification that a defendant is denied due process of law.

         11. Identification Procedures. Whether identification procedures were unduly suggestive and conducive to a substantial likelihood of irreparable mistaken identification is to be determined by a consideration of the totality of the circumstances surrounding the procedures.

         12.___. The factors to be considered in determining whether identification procedures were unduly suggestive and conducive to a substantial likelihood of irreparable mistaken identification are the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness, and the length of time between the crime and the identification.

          Appeal from the District Court for Scotts Bluff County: Andrea D. Miller, Judge.

          Leonard G. Tabor for appellant.

          Douglas J. Peterson, Attorney General, Erin E. Tangeman, Derek Bral, Senior Certified Law Student, and, on brief, Sarah E. Marfisi for appellant.

          Heavican, C.J., Cassel, Stacy, Funke, and Papik, JJ.

          HEAVICAN, C.J.

         INTRODUCTION

         Timothy L. Fuentes was convicted of third degree sexual assault of a child, second offense, and sentenced to 50 to 50 years' imprisonment. His conviction and sentence were [302 Neb. 921] affirmed on direct appeal. Fuentes filed a motion seeking postconviction relief. Following an evidentiary hearing, the district court denied Fuentes' motion. He appeals. We affirm.

         FACTUAL BACKGROUND

         The facts leading to Fuentes' conviction show that on August 21, 2012, Fuentes visited the upstairs apartment of a converted house. The victim, Analicia B., was outside of the house at the time of Fuentes' visit. Analicia's family lived in the basement apartment of the same house. Analicia testified that Fuentes arrived at the home while her stepfather, Gabriel T, had been outside. Analicia further testified that Fuentes went into the upstairs apartment and that Gabriel went into the basement apartment, leaving Analicia and her sister outside. Fuentes left the upstairs apartment approximately 5 minutes later, while Gabriel was still in the basement apartment. Analicia testified that as he left, Fuentes "slid his finger" of his right hand up and then sideways on Analicia's genital area over her clothing.

         Analicia immediately reported the touching to her parents, and law enforcement was contacted. A few days later, Analicia identified Fuentes out of a photographic array (photo array) that included photographs of Fuentes and five other individuals.

         Fuentes was charged with third degree sexual assault of a child. A first jury trial ended in a mistrial because of a deadlocked jury; Fuentes was convicted following the second trial. His conviction and sentence were affirmed on direct appeal in a memorandum opinion filed by the Nebraska Court of Appeals on February 26, 2014, in case No. A-13-340.

         Fuentes subsequently filed a pro se motion seeking post-conviction relief. Fuentes was represented by an attorney from the Scotts Bluff County public defender's office at trial and on direct appeal, and he is represented by appointed counsel in this appeal. Fuentes asserts that trial counsel was ineffective [302 Neb. 922] at trial and on appeal by failing to (1) argue ineffective assistance of counsel on direct appeal; (2) file a motion to suppress statements; (3) file a motion to recuse the trial judge; (4) file a motion in limine; (5) file a motion to suppress the photo array; (6) investigate and depose Analicia, an unknown adult, and Gabriel; (7) object to jury instructions Nos. 1 and 5; (8) object to exhibit 5; (9) object to the testimony of DelMaria B., Analicia's mother; and (10) file a motion to dismiss at the conclusion of the State's evidence.

         Because the trial judge had retired, a new district court judge was appointed. Following an evidentiary hearing, the district court denied Fuentes' ...


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