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McLemore v. Frakes

United States District Court, D. Nebraska

June 4, 2019

MICHAEL EDWIN MCLEMORE, Petitioner,
v.
SCOTT R. FRAKES, Respondent.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE

         Petitioner 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.

         Background

         In 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 (Neb. 2001).

         On June 15, 2016, the Nebraska Supreme Court issued a Memorandum Opinion denying Petitioner post-conviction relief. State v. McLemore, No. S-15-218 (Neb. 2016)[1] (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.)

         The 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.

         The Attachments to the Motion

         Petitioner's 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.)

         The 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.

         The 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 ...


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