Leonor v. Houston

Filing 84

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that the Motion for Reconsideration under Rule 60(b) (Filing No. 82 ) is denied. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JUAN LUIS LEONOR,
Petitioner,
v.
MICHAEL KENNEY, and ROBERT
HOUSTON,
Respondents.

)
)
)
)
)
)
)
)
)
)

4:05CV3162

MEMORANDUM
AND ORDER

Juan Luis Leonor (“Leonor”) has filed a Motion for Reconsideration under Rule
60(b) (Filing No. 82) of an adverse ruling on his habeas corpus petition that was
issued many years ago. In that ruling, I decided that certain ineffective assistance of
trial counsel claims were procedurally defaulted. (Filing No. 53 at CM/ECF pp. 9-14,
19.)
The Rule 60(b) motion is predicated upon Martinez v. Ryan, 132 S.Ct. 1309
(2012) (holding that where, under state law, claims of ineffective assistance of trial
counsel must be raised in an initial-review collateral proceeding, a procedural default
will not bar a federal habeas court from hearing a substantial claim of ineffective
assistance at trial if, in the initial-review collateral proceeding, there was no counsel
or counsel in that proceeding was ineffective). The motion will be denied.
There are a host of reasons why I deny the motion. I have serious doubts about
whether Martinez applies to Nebraska as a categorical matter because Nebraska does
not bar ineffective assistance of trial counsel claims on direct appeal or in motions for
new trial.1 I also have serious doubts about whether Leonor’s ineffective assistance

1

See Dansby v. Hobbs, 691 F.3d 934, 936-938 (8th Cir. 2012) (denying petition
for rehearing and applying the “narrow rule” from Martinez after examining Arkansas
law).

of trial counsel assertions are “substantial” within the meaning of Martinez. But, I
need not address those matters more fully. There is a simpler explanation.
This federal case was final no later than October 6, 2008 when the Supreme
Court denied Leonor’s petition for writ of certiorari regarding the denial of his habeas
petition. (Filing No. 79.) The state criminal case and the state post-conviction action
were final many years before that.2 The reasoning of the Martinez decision, which
forms the legal basis for Leonor’s Rule 60(b) motion, does not present the required
“extraordinary circumstance” justifying reopening the defaulted claims, particularly
because this case has been final for many years and murder cases like this one are
especially deserving of finality. Lopez v. Ryan, 678 F.3d 1131, 1135 (9th Cir. 2012)
(affirming denial of Rule 60(b) motion in a death penalty case and holding that
Martinez v. Ryan was not an extraordinary circumstance justifying reopening of the
petitioner’s claims).
IT IS THEREFORE ORDERED that the Motion for Reconsideration under
Rule 60(b) (Filing No. 82) is denied.
January 10, 2013

BY THE COURT:
Richard G. Kopf
Senior United States District Judge

2

The underlying state criminal case was final no later than February 21, 2002,
when the Nebraska Supreme Court issued its mandate. (No petition for writ of
certiorari was filed.) The underlying state post-conviction action was final no later
than July 7, 2005, when the Nebraska Supreme Court issued its mandate.
*This opinion may contain hyperlinks to other documents or W eb sites. The U.S. District Court for the District
of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their W eb sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The
court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases
to work or directs the user to some other site does not affect the opinion of the court.

-2-