United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE
has filed a motion to stay so he may return to state court to
present additional evidence of his innocence. The motion has
been briefed. I now deny the motion.
1999, Petitioner was convicted by a jury of the murder of a
woman with whom he had a relationship and use of a deadly
weapon to commit that felony. The Nebraska Supreme Court
later affirmed his conviction and resulting life sentence.
State v. McLemore, 623 N.W.2d 315, 322
15, 2016, the Nebraska Supreme Court issued a Memorandum
Opinion denying Petitioner post-conviction relief. State
v. McLemore, No. S-15-218 (Neb. 2016) (filing no. 4-2).
On October18, 2018, the Nebraska Supreme Court summarily
denied a second post-conviction action filed by the
Petitioner. The court observed that there is no
Constitutional right to counsel in a Nebraska post-conviction
matter and that the action was time-barred. (Filing no. 4-3
at CM/ECF p. 9.)
prime witness against Petitioner during the trial was an
inmate who was held in the same jail as Petitioner. His name
was Willie Martin. The Nebraska Supreme Court recapped
Martin's testimony as follow:
Willie Martin, an inmate housed in the same area as McLemore
at the Douglas County correctional facility from September 16
to October 10, 1997, testified about conversations Martin had
had with McLemore regarding Torres' murder. Martin had
been previously convicted of four felonies and had three
previous convictions for giving false information.
Martin testified that 2 to 3 days after McLemore's
arrival at the facility, McLemore told him that he had been
charged with criminal mischief for entering the home of a
woman he had been dating and cutting up her furniture.
McLemore told Martin that the woman was a real estate agent
who had several children. Martin further testified that
McLemore stated that one day when it was “pouring down
rain, ” McLemore had placed several telephone calls to
the woman's house but was unable to reach her. McLemore
told Martin that he became angry when he could not reach the
woman because he believed that she was with another man.
Martin testified that McLemore stated that he then started
walking to the woman's house in the rain and entered the
house through an unlocked patio door. Martin testified that
McLemore stated that he became angry while waiting for the
woman and cut up her furniture with a knife he had brought
with him, cutting his finger in the process. McLemore then
stated that the woman came home and that a struggle ensued.
McLemore told Martin that he forced the woman outside and
into her car. Martin testified that McLemore stated that
“the bitch kept talking shit so I had to do something
to her” and that he and the woman then “drove
somewhere” in her car. McLemore told Martin that he
“wasn't going to let her walk out of his
life” and that he pulled out a knife and cut the
woman's throat. McLemore told Martin that he put the
woman's body in the trunk of the car and that McLemore
knew that his fingerprints were in the car. McLemore stated
that he left the car parked in the rain and started walking
home, throwing the knife away as he walked. At the time
Martin had these conversations with McLemore, the police had
not released any information about how Torres had died.
Martin testified that a few days after McLemore told him
these things, he saw news reports dealing with Torres'
death. At that time, he realized that this was the woman
McLemore had been telling him about and contacted the police
to give them the information.
McLemore, 623 N.W.2d at 323-324.
Attachments to the Motion
motion (filing no. 8) has two attachments. The first
attachment is a copy of a notarized statement of Jessup Smith
dated February 20, 2003. (Filing no. 8 at CM/ECF pp. 5-7.)
The second document is a partially transcribed taped
interview of Willie Martin on December 8, 2018. (Filing no. 8
at CM/ECF pp. 8-45.)
Smith statement basically asserts that Smith and Martin
fabricated what Martin said at trial. According to Smith,
they were able to do so from reports in the news about the
facts of the case and what the police told them.
interview of Martin purports to be conducted by a private
investigator for Petitioner. There is no affidavit attesting
to the document's authenticity. Moreover, it is apparent
from the text of the transcription that it does not contain
the entire interview. Still further, slightly more ...