Ildefonso v. Gage

Filing 62

MEMORANDUM AND ORDER - This case is dismissed with prejudice and the court will not issue a certificate of appealability. Ildefonso's discovery motions, request to "expand the record," and requests for the appointment of counsel (Filing Nos. 58 , 59 , and 60 ) are denied. I will enter judgment by a separate document. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ARLYN P. ILDEFONSO,
Petitioner,
v.
BRIAN GAGE, Warden,
Respondent.

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4:13CV3110

MEMORANDUM
AND ORDER

This matter is before me on Petitioner Arlyn P. Ildefonso’s Amended Petition
for Writ of Habeas Corpus (Filing No. 13) in which he challenges his convictions for
first degree murder and use of a firearm to commit a felony. For the reasons explained
below, I will dismiss Ildefonso’s habeas corpus action with prejudice. In addition, I
will deny his discovery motions, request to “expand the record,” and requests for the
appointment of counsel (Filing Nos. 58, 59, and 60).
I. BACKGROUND
A.

Conviction and Sentence

I recite the facts of the crimes as found by the Nebraska Supreme Court in State
v. Ildefonso (Ildefonso I), 634 N.W.2d 252 (Neb. 2001) (affirming Ildefonso’s
convictions for first degree murder and use of a firearm to commit a felony, but
remanding for resentencing).
At approximately 4 a.m. on September 13, 1999, Omaha police found the body
of [Carr] Hume, a retired minister, lying in the street and on the curb in front of 2527
South 42d Street. Hume had been shot in the right side of his face. His hands were
still in the pockets of his sports coat, and his wallet contained $1,029. The blood
evidence indicated that Hume had been shot at that location.

Based on the report of an informant, two suspects were identified and arrested.
While preparing to interview one of the suspects, Officer Melvin McCowen of the
Omaha Police Department received an anonymous call stating that the police had
arrested the wrong persons. The caller, subsequently identified as Amy Taylor, said
that Ildefonso was responsible for the shooting. Taylor called the police after she
heard on the news that one of the suspects had been arrested for the Hume murder.
Taylor told police that she was staying with Ildefonso at the Ben Franklin Motel and
that Ildefonso had told her he shot Hume because Ildefonso was mad at his girlfriend,
Kristine Reh, and he “wanted the world to feel his pain.” Taylor said she met Reh and
a friend of Reh’s, Christina Devore-Alexander, when they came to the motel to
purchase drugs from Ildefonso. Devore-Alexander had also told Taylor that Ildefonso
confessed to shooting Hume.
Taylor also told police that she had seen Ildefonso with several guns, including
a .357-caliber revolver and a 9-mm handgun. At McCowen’s request, Taylor obtained
bullets from the guns in Ildefonso’s backpack and left the bullets with a desk clerk at
the Ben Franklin Motel. McCowen picked up the bullets, which included two
expended shells, one live .357-caliber round, and one live 9-mm round. Because the
.357-caliber bullet was similar to the bullet taken from Hume’s body, McCowen
requested a comparison by the crime laboratory.
Devore-Alexander testified at trial that she and Reh were high school friends
and that on September 13, 1999, Reh had called her and asked for a ride because Reh
and Ildefonso, Reh’s boyfriend, were arguing. Ildefonso was upset because Reh had
another boyfriend and the boyfriend was about to be released from a correctional
center. Devore-Alexander picked up Reh and Ildefonso, and they drove around
Omaha, with Ildefonso giving directions. Near 42nd and Bancroft Streets, Ildefonso
directed Devore-Alexander to stop the car. When Ildefonso got out, DevoreAlexander turned to talk to Reh, who was in the rear seat. Devore-Alexander said she
heard a gunshot, turned around, and saw Ildefonso with his arm extended and a gun
in his hand. Hume was lying on the ground.
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Ildefonso returned to the car with the gun in his hand and told DevoreAlexander to drive. She drove to her grandmother’s house on North 52nd Street,
where the group stayed for about 3 hours. Devore-Alexander stated that Ildefonso
threatened to kill her and Reh if they said anything about the shooting and told them
that his life was in their hands. At about 6 a.m., Devore-Alexander gave Ildefonso and
Reh a ride to Reh’s car. Devore-Alexander then returned to her grandmother’s house.
Devore-Alexander testified that prior to the shooting, Ildefonso told her “the only
thing that would make him feel better is if he shot somebody.”
Reh testified at trial that after Devore-Alexander stopped her car near 42nd and
Bancroft Streets, Reh heard a gunshot and saw a man lying on the sidewalk as they
left the area. Reh also said that she, Devore-Alexander, and Ildefonso had taken drugs
together and that Ildefonso was using methamphetamine the night of the shooting.
On October 1, 1999, police took steps to obtain a warrant to search Ildefonso,
a blue 1991 Chevrolet Cavalier, and a room at the Ben Franklin Motel on Interstate
80. Officer Anthony Strong began surveillance of the motel at 8 a.m. At about 11:30
a.m., Strong saw Ildefonso and Taylor leave the motel room, load the car, and stop at
the motel office. When they left the motel, Strong notified Sarpy County sheriff’s
officers that Ildefonso and Taylor were northbound on Interstate 80. The Sarpy
County officers pulled over the car at the Harrison Street overpass. The officers told
Taylor, the driver, to turn off the car’s engine and throw out the keys. Taylor and
Ildefonso, who was sitting in the passenger’s seat, were then removed from the
vehicle. Strong saw a .357-caliber revolver under the passenger’s seat of the car, and
a 9-mm handgun was found in a backpack in the rear seat.
Daniel Bredow, senior crime laboratory technician and firearms toolmarks
examiner with the Omaha Police Department, testified that the bullet from the .357caliber revolver was consistent with the bullets left with the desk clerk at the motel
and with the bullet removed from Hume’s body.

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The jury found Ildefonso guilty of first degree murder and use of a firearm to
commit a felony. He was sentenced to life imprisonment without parole for the
murder charge and to a consecutive term of 40 to 45 years’ imprisonment for the use
of a firearm charge.
B.

Direct Appeal

Ildefonso appealed his convictions and sentences. Different attorneys
represented Ildefonso at trial and on direct appeal. (Filing No. 20-6.)
The Nebraska Supreme Court heard Ildefonso’s direct appeal, and affirmed his
convictions. However, the court vacated Ildefonso’s sentences, finding the state
district court incorrectly granted Ildefonso credit for time served against his life
sentence. The Nebraska Supreme Court remanded Ildefonso’s case for resentencing
with directions that the state district court apply credit for time served to the
conviction for use of a firearm to commit a felony. Ildefonso I, 634 N.W.2d at 266.
C.

Post-Conviction Action and Appeal

Ildefonso filed an amended motion for post-conviction relief in the state district
court on December 2, 2011, raising essentially the same arguments he raises in this
habeas corpus action. (Filing No. 20-13 at CM/ECF p. 149 to Filing No. 20-14 at
CM/ECF p. 85.) The state district court denied the motion on March 8, 2012, without
granting an evidentiary hearing. (Filing No. 20-13 at CM/ECF pp. 31-45.)
Ildefonso appealed the state district court’s order denying post-conviction relief.
The Nebraska Supreme Court heard the appeal. On November 28, 2012, the Nebraska
Supreme Court affirmed the state district court’s decision to deny post-conviction
relief. State v. Ildefonso (Ildefonso II), S-12-0263 (Neb. Nov. 28, 2012) (unpublished)
(available in the state-court records at Filing No. 20-2).

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D.

Federal Habeas Corpus Action

Ildefonso filed a habeas corpus petition in this court on June 6, 2013 (Filing No.
1). He filed an amended petition for writ of habeas corpus (“amended petition”) on
November 15, 2013 (Filing No. 13). Ildefonso’s amended petition is the operative
petition in this action.
Respondent filed an answer, amended answer, brief, amended brief, reply brief
and the relevant state court records in response to the amended petition (Filing Nos.
20, 21, 24, 28, 29, 44, 45, and 50). Ildefonso filed two briefs in support of his
petition. (Filing Nos. 36 and 49.) This matter is fully submitted for disposition.
II. STANDARDS OF REVIEW
A.

Exhaustion Requirement
As set forth in 28 U.S.C. § 2254:
(b)(1)

An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted unless it appears that–
(A)
(B)

the applicant has exhausted the remedies available in
the courts of the State; or
(i)
there is an absence of available State
corrective process; or
(ii) circumstances exist that render such process
ineffective to protect the rights of the
applicant.

28 U.S.C. § 2254(b)(1).

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The United States Supreme Court has explained the habeas exhaustion
requirement as follows:
Because the exhaustion doctrine is designed to give the state courts a full
and fair opportunity to resolve federal constitutional claims before those
claims are presented to the federal courts . . . state prisoners must give
the state courts one full opportunity to resolve any constitutional issues
by invoking one complete round of the State’s established appellate
review process.
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). A state prisoner must therefore
present the substance of each federal constitutional claim to the state courts before
seeking federal habeas corpus relief.
Where “no state court remedy is available for the unexhausted claim—that is,
if resort to the state courts would be futile—then the exhaustion requirement in
§ 2254(b) is satisfied, but the failure to exhaust ‘provides an independent and adequate
state-law ground for the conviction and sentence, and thus prevents federal habeas
corpus review of the defaulted claim, unless the petitioner can demonstrate cause and
prejudice for the default.’” Armstrong v. Iowa, 418 F.3d 924, 926 (8th Cir. 2005)
(quoting Gray v. Netherland, 518 U.S. 152, 162 (1996)).
B.

Standard Under 28 U.S.C. § 2254(d)

When a state court has adjudicated a habeas petitioner’s claim on the merits,
there is a very limited and extremely deferential standard of review both as to the law
and the facts. See 28 U.S.C. § 2254(d). Section 2254(d)(1) states that a federal court
may grant a writ of habeas corpus if the state court’s decision “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

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A state court acts contrary to clearly established federal law if it applies a legal
rule that contradicts the Supreme Court’s prior holdings or if it reaches a different
result from one of that Court’s cases despite confronting indistinguishable facts.
Williams v. Taylor, 529 U.S. 362, 405-406 (2000). Further, “it is not enough for [the
court] to conclude that, in [its] independent judgment, [it] would have applied federal
law differently from the state court; the state court’s application must have been
objectively unreasonable.” Rousan v. Roper, 436 F.3d 951, 956 (8th Cir. 2006).
With regard to the deference owed to factual findings of a state court’s decision,
Section 2254(d)(2) states that a federal court may grant a writ of habeas corpus if a
state court proceeding “resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(2). Additionally, a federal court must presume that
a factual determination made by the state court is correct, unless the petitioner
“rebut[s] the presumption of correctness by clear and convincing evidence.” 28
U.S.C. § 2254(e)(1).
As the Supreme Court noted, “[i]f this standard is difficult to meet, that is
because it was meant to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011). The
deference due state court decisions “preserves authority to issue the writ in cases
where there is no possibility fairminded jurists could disagree that the state court’s
decision conflicts with [Supreme Court] precedents.” Id. However, this high degree
of deference only applies where a claim has been adjudicated on the merits by the
state court. See Brown v. Luebbers, 371 F.3d 458, 460 (8th Cir. 2004) (“[A]s the
language of the statute makes clear, there is a condition precedent that must be
satisfied before we can apply the deferential AEDPA standard to [the petitioner’s]
claim. The claim must have been ‘adjudicated on the merits’ in state court.”).
The Eighth Circuit clarified what it means for a claim to be adjudicated on the
merits, finding that:

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AEDPA’s requirement that a petitioner’s claim be adjudicated on the
merits by a state court is not an entitlement to a well-articulated or even
a correct decision by a state court. Accordingly, the postconviction trial
court’s discussion of counsel’s performance–combined with its express
determination that the ineffective-assistance claim as a whole lacked
merit–plainly suffices as an adjudication on the merits under AEDPA.
Worthington v. Roper, 631 F.3d 487, 496-97 (8th Cir. 2011) (internal quotation marks
and citations omitted).
C.

Strickland Standard

I will discuss Ildefonso’s arguments under the two-pronged standard of
Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires that the petitioner
demonstrate both that his counsel’s performance was deficient, and that such deficient
performance prejudiced the petitioner’s defense. Id. at 687. The first prong of the
Strickland test requires that the petitioner demonstrate that his attorney failed to
provide reasonably effective assistance. Id. at 687-88. In conducting such a review,
the courts “indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Id. at 689. The second prong requires
the petitioner to demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at
694.
A court need not address the reasonableness of the attorney’s skills and
diligence if the movant cannot prove prejudice under the second prong of this test.
United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). Further, as set forth in
Strickland, counsel’s “strategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable” in a later habeas
corpus action. Strickland, 466 U.S. at 690.

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Additionally, the Supreme Court has emphasized that the deference due the
state courts applies with vigor to decisions involving ineffective assistance of counsel
claims. Knowles v. Mirzayance, 556 U.S. 111 (2009). In Knowles, the Justices
stressed that under the Strickland standard, the state courts have a great deal of
“latitude” and “leeway,” which presents a “substantially higher threshold” for a
federal habeas petitioner to overcome. As stated in Knowles:
The question is not whether a federal court believes the state court’s
determination under the Strickland standard as incorrect but whether that
determination was unreasonable–a substantially higher threshold. And,
because the Strickland standard is a general standard, a state court has
even more latitude to reasonably determine that a defendant has not
satisfied that standard.
Id. at 123 (internal quotation marks and citations omitted).
III. DISCUSSION
Ildefonso alleges in this action that his constitutional rights were violated
during his trial and direct appeal in Nebraska’s state courts. His amended petition sets
forth 81 grounds for relief, all of which fall under four distinct categories:
claims that his trial counsel was ineffective (grounds 1 through 59 and 71);
claims that his appellate counsel was ineffective (grounds 75 and 77 through
81);
claims of other constitutional violations that occurred during trial (grounds 60
through 70 and 72 through 74); and
a claim that he is actually innocent (ground 76).
All of Ildefonso’s arguments about his trial counsel’s performance, and about
constitutional violations that occurred at trial, are procedurally defaulted. Under
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Nebraska law, Ildefonso was required to raise such arguments on direct appeal
because they were known to him and could have been litigated at that time. See State
v. Seberger, 815 N.W.2d 910, 915 (Neb. 2012). In addition, he was represented by
different attorneys at trial and on direct appeal so he could have raised allegations of
ineffective assistance of trial counsel on direct appeal. Id. He did not raise these
arguments on direct appeal; therefore, the claims are procedurally defaulted.
To overcome the procedural default, Ildefonso must show cause for not
presenting the claims on direct appeal and prejudice from the failure, or that he is
actually innocent. See Storey v. Roper, 603 F.3d 507, 523 (8th Cir. 2010). For the
reasons discussed below, Ildefonso has not shown he was prejudiced by a failure to
present the defaulted claims on direct appeal or that he is actually innocent.
For the most part, Ildefonso properly exhausted his arguments about his
appellate counsel’s performance in Nebraska’s state courts; therefore, I will address
these arguments. I note that Ildefonso’s arguments about his appellate counsel’s
performance encompass his allegations about his trial counsel’s performance and
about other constitutional violations that occurred at trial. Thus, even though
Ildefonso’s arguments about defects that occurred at trial are procedurally defaulted,
I will address the crux of most of his arguments in this opinion.
The road map for the remainder of this opinion will be as follows: First, I will
summarize Ildefonso’s claims of ineffective assistance of appellate counsel. Second,
I will discuss the claims. Third, I will address Ildefonso’s stand-alone actualinnocence claim.
A.

Summary of Arguments About Appellate Counsel’s Performance

I have summarized and condensed the arguments Ildefonso raised in his
amended petition in the paragraphs that follow. Ildefonso alleged appellate counsel

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was ineffective when he failed to raise these arguments on direct appeal (see grounds
77 and 81 of the amended petition):
1.

The arresting officers lacked jurisdiction to pursue and arrest Ildefonso outside
of Douglas County, Nebraska, and trial counsel failed to challenge Ildefonso’s
arrest on this basis. (Grounds 1 and 62, Filing No. 13 at CM/ECF pp. 4-5, 100101.)

2.

Trial counsel failed to discuss the State’s evidence with Ildefonso prior to trial.
(Ground 2, Filing No. 13 at CM/ECF pp. 5-8.)

3.

Trial counsel failed to interview or contact the potential defense witnesses
identified by Ildefonso. (Ground 3, Filing No. 13 at CM/ECF pp. 8-10.)

4.

Trial counsel failed to collect exculpatory evidence from Vicky DeLozier and
also failed to call her as a witness. (Grounds 4 and 46, Filing No. 13 at
CM/ECF pp. 10-11, 75-76.)

5.

Trial counsel failed to depose Christina Devore-Alexander, Amy Taylor, and
Kristine Reh. (Ground 5, Filing No. 13 at CM/ECF pp. 12-13.)

6.

Trial counsel failed to file a “Motion for Disclosure of Intention to Use
Evidence of Prior Convictions.” (Grounds 6 and 7, Filing No. 13 at CM/ECF
pp. 13-16.)

7.

Trial counsel failed to file a “Notice of Intent to Use a[n] Alibi Defense.”
(Ground 8, Filing No. 13 at CM/ECF pp.16-18.)

8.

Trial counsel failed question Deputy Mark Trapp during a suppression hearing
about whether a recording of the traffic stop existed. (Ground 9, Filing No. 13
at CM/ECF pp. 18-19.)

9.

Trial counsel failed to object when the prosecutor, rather than the witness,
identified Ildefonso during a suppression hearing. (Ground 10, Filing No. 13
at CM/ECF pp. 20-21.)

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10.

Trial counsel failed to properly question witnesses during the suppression
hearing to show that no exigent circumstances existed for the traffic stop and
subsequent search. (Ground 11, Filing No. 13 at CM/ECF pp. 21-22.)

11.

Trial counsel failed to call Amy Taylor as a witness during the suppression
hearing to show that the information contained in the application for the search
warrant was false. (Ground 12, Filing No. 13 at CM/ECF pp. 23-24, 86-87.)

12.

The affidavit supporting the application for the search warrant was insufficient.
(Grounds 13, 53, and 54, Filing No. 13 at CM/ECF pp. 24-26, 86-88.)

13.

Trial counsel failed to object to the State’s request to reopen its case during the
suppression hearing. (Ground 14, Filing No. 13 at CM/ECF pp. 26-27.)

14.

Trial counsel failed to move for a continuance after the court denied the motion
to suppress. (Ground 15, Filing No. 13 at CM/ECF pp. 28-29.)

15.

Trial counsel failed to file a proper motion in limine that separately set forth all
of the evidence sought to be excluded. (Grounds 16 and 17, Filing No. 13 at
CM/ECF pp. 29-32.)

16.

Trial counsel failed to object to various witnesses on the basis that the State
either failed to timely endorse them on the information or failed to endorse
them at all. (Grounds 18 through 24 and 63 through 65, Filing No. 13 at
CM/ECF pp. 32-42, 102-105.)

17.

Trial counsel failed to request a new jury pool after a potential juror stated she
believed Ildefonso was guilty. (Ground 25, Filing No. 13 at CM/ECF pp. 4344.)

18.

Trial counsel failed to move to strike for cause a potential alternate juror who
was a police officer. (Ground 26, Filing No. 13 at CM/ECF pp. 44-46.)

19.

Trial counsel failed to object to the lack of minority representation on the jury
and failed to question the potential jurors regarding their race during jury
selection. (Grounds 27 and 28, Filing No. 13 at CM/ECF pp. 45-48.)

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20.

Trial Counsel failed to object when the prosecutor stated Ildefonso killed Carr
Hume during opening statements. (Grounds 29 and 66, Filing No. 13 at
CM/ECF pp. 48, 105-106.)

21.

Trial counsel failed to collect and offer material, exculpatory evidence.
(Ground 30, Filing No. 13 at CM/ECF pp. 49-50.)

22.

Trial counsel failed to offer any audio or video recording of Ildefonso’s arrest
and booking. (Ground 31, Filing No. 13 at CM/ECF pp. 51-52.)

23.

Trial counsel failed to subpoena a copy of Ildefonso’s registration form from
the Best Western Regency Hotel in Omaha. (Grounds 32 and 44, Filing No. 13
at CM/ECF pp. 53-54, 72-73.)

24.

Trial counsel failed to investigate Amy Taylor’s administration of Ildefonso’s
pain medication for his gunshot wound around the time of Ildefonso’s arrest.
(Ground 33, Filing No. 13 at CM/ECF pp. 55-56.)

25.

Trial counsel failed to subpoena news and media records about Carr Hume’s
murder. (Grounds 34 and 35, Filing No. 13 at CM/ECF pp. 56-59.)

26.

Trial counsel failed to object to State’s exhibits 13 and 15, which were
photographs of a baseball hat and a tissue-like substance. (Grounds 36 and 37,
Filing No. 13 at CM/ECF pp. 60-63.)

27.

Trial counsel failed to properly cross-examine Amy Taylor, Kristine Reh,
Anthony Strong, Melvin McCowen, and Daniel Bredow. (Ground 38, Filing
No. 13 at CM/ECF pp. 63-64.)

28.

Trial counsel failed to object when the prosecutor identified the firearms at trial
instead of allowing Melvin McCowen to identify them. (Grounds 39 and 67,
Filing No. 13 at CM/ECF pp. 65-66, 106-107.)

29.

Trial counsel failed to object to the prosecutor’s leading questions to Melvin
McCowen. (Ground 40, Filing No. 13 at CM/ECF pp. 66-67.)

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30.

Trial counsel failed to object when Melvin McCowen testified that Kristine
Reh told him she had seen Ildefonso shoot Carr Hume. (Ground 41, Filing No.
13 at CM/ECF pp. 67-68.)

31.

Trial counsel made improper prejudicial comments about Ildefonso during his
cross-examination of Christina Devore-Alexander. (Ground 42, Filing No. 13
at CM/ECF pp. 69-70.)

32.

Trial counsel improperly “opened the door” for the prosecution to probe
Ildefonso’s past drug use. (Ground 43, Filing No. 13 at CM/ECF pp. 70-71.)

33.

Trial counsel failed to call Mark Anderson as a witness. (Ground 45, Filing
No. 13 at CM/ECF pp. 73-74.)

34.

Trial counsel failed to call Patricia McWilliams and Lea Leimbach to testify in
Ildefonso’s defense. (Ground 47, Filing No. 13 at CM/ECF pp. 76-77.)

35.

Trial counsel advised Ildefonso not to call defense witnesses or testify on his
own behalf. If Ildefonso had presented a defense, he would have been
acquitted. (Ground 48, Filing No. 13 at CM/ECF pp. 77-79.)

36.

Trial counsel used the term “eyewitness” to describe Christina DevoreAlexander and Kristine Reh when they were not eyewitnesses. Trial counsel
also failed to object to the State’s use of the term “eyewitness.” (Grounds 49
and 50, Filing No. 13 at CM/ECF pp. 80-83.)

37.

Trial counsel failed to object to the prosecutor’s closing argument. He
incorrectly stated Ildefonso always carried a 9-mm handgun. In addition, he
implied to the jury that it was Ildefonso’s responsibility to defend himself
against he charges. (Grounds 51 and 52, Filing No. 13 at CM/ECF pp. 83-85.)

38.

Trial counsel failed to file a meaningful motion for new trial. (Ground 55,
Filing No. 13 at CM/ECF pp. 88-90.)

39.

Trial counsel failed to advise Ildefonso of his right to present mitigating
evidence at sentencing. (Ground 56, Filing No. 13 at CM/ECF pp. 90-91.)

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40.

Trial counsel improperly advised Ildefonso not to speak on his own behalf at
sentencing. (Ground 57, Filing No. 13 at CM/ECF pp. 92-93.)

41.

Trial counsel failed to preserve material evidence, including a personal letter
from Kristine Reh to Ildefonso, which included information contradicting her
statements to police and supporting Ildefonso’s claim of innocence. (Ground
58, Filing No. 13 at CM/ECF pp. 93-95.)

42.

Trial counsel’s cumulative errors deprived Ildefonso of a fair trial. (Grounds
59 and 71, Filing No. 13 at CM/ECF pp. 95-96, 111-112.)

43.

The magistrate judge improperly issued the search warrant. (Grounds 60 and
61, Filing No. 13 at CM/ECF pp. 97-100.)

44.

The trial court erred in admitting exhibit 14, a photograph of a syringe.
(Ground 68, Filing No. 13 at CM/ECF pp. 107-108.)

45.

The trial court erred in admitting photographs of Carr Hume’s body. (Ground
69, Filing No. 13 at CM/ECF pp. 109-110.)

46.

At sentencing, the trial judge failed to ask Ildefonso if he had anything to say
after he heard Ildefonso’s trial attorney say, “Don’t say anything. It won’t do
you any good.” (Ground 70, Filing No. 13 at CM/ECF pp. 110-111.)

47.

The prosecutor failed to disclose material exculpatory evidence. (Ground 72,
Filing No. 13 at CM/ECF pp. 112-114.)

48.

Ildefonso was denied a fair trial because the evidence was insufficient to
support his convictions. (Grounds 73 and 74, Filing No. 13 at CM/ECF pp.
114-124.)

With respect to appellate counsel’s representation on direct appeal, Ildefonso
argues:
49.

Appellate counsel’s cumulative errors worked together to deprive him of due
process on appeal. (Ground 75, Filing No. 13 at CM/ECF pp. 125-126.)

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50.

Appellate counsel failed to confer with Ildefonso during the direct appeal.
(Ground 78, Filing No. 13 at CM/ECF pp. 133-134.)

51.

Appellate counsel failed to identify which information was left out of the
application for a search warrant. (Ground 79, Filing No. 13 at CM/ECF pp.
134-135.)

52.

Appellate counsel failed to argue that the search warrant did not extend to a
search of the automobile and there were no exigent circumstances to justify
searching the automobile. (Ground 80, Filing No. 13 at CM/ECF pp. 136-137.)

B.

Arguments Summarily Rejected by the Nebraska Supreme Court

The Nebraska Supreme Court considered and summarily rejected nearly all of
Ildefonso’s arguments summarized above in its order affirming the state district
court’s denial of post-conviction relief. See Ildefonso II (Filing No. 20-2). The
arguments summarily rejected included those raised in the following grounds of the
amended petition: 1-17, 25-40, 44-47, 49-50, 53-62, 66-75, and 78-80.
As to these grounds, the Nebraska Supreme Court wrote:
The majority of Ildefonso’s claims may be summarily dismissed
because they clearly allege only conclusions of fact or law, or the records
and files affirmatively show that Ildefonso is not entitled to relief. For
example, Ildefonso alleged that his appellate counsel was ineffective for
not raising his trial counsel’s failure to collect and offer material,
exculpatory evidence. This allegation alleges only conclusions of fact or
law and does not warrant an evidentiary hearing. Similarly, Ildefonso’s
allegations making only general assertions of prejudice, or no assertion
of prejudice at all, are insufficient because he has not alleged how
specific evidence would have affected the outcome of the trial.
There are also many allegations for which the records and files in
this case affirmatively show that Ildefonso is not entitled to relief. For
example, Ildefonso alleged that his appellate counsel was ineffective for
failing to raise issues related to the search warrant. But because Ildefonso
16

left the hotel in a car, and the police had probable cause to believe that
evidence of a crime was within the car, the police did not need a warrant
to stop and search the car. [] As such, regardless whether his trial
counsel’s performance was deficient on issues related to the search
warrant, there was no resulting prejudice.
After reviewing Ildefonso’s claims and the record, we conclude
that only a few allegations require discussion. These are allegations
21-30, 49, 50, 51, 56, 59 and 60.1 We summarily reject Ildefonso’s other
claims.
Ildefonso II (Filing No. 20-2 at CM/ECF pp. 18-19). The Nebraska Supreme Court’s
resolution of these claims is entitled to deference, even though the resolution was
summary in nature. See, e.g., Weaver v. Bowersox, 438 F.3d 832, 839 (8th Cir. 2006)
(holding that the state court’s summary disposition of claims on the merits is entitled
to deference even though the state court did not specifically discuss the claims) (citing
Brown, 371 F.3d at 462)).
Ildefonso did not argue, much less establish, that the Nebraska Supreme
Court’s rejection of any of these arguments was based on an unreasonable
determination of the facts in light of the evidence or that it was contrary to, or
involved an unreasonable application of, clearly established federal law as determined
by the United States Supreme Court. Moreover, the Nebraska Supreme Court’s
decision to refuse to consider claims that alleged only conclusions of fact or law was
based on a firmly established state procedural rule. That is, in Nebraska, if a postconviction motion alleges only conclusions of fact or law, then the court is not
required to grant an evidentiary hearing. See, e.g., State v. Dragon, 843 N.W.2d 618,
623 (Neb. 2014); State v. Fox, 840 N.W.2d 479, 485 (Neb. 2013); State v. Baker, 837

These allegations—those that were not summarily rejected by the Nebraska
Supreme Court—correspond to the arguments raised in grounds 18-24, 41-43, 48, 5152, and 63-65 of Ildefonso’s amended petition in this case. The court will discuss
these argument later in this order.
1

17

N.W.2d 91, 96 (Neb. 2013); State v. Marks, 835 N.W.2d 656, 661 (Neb. 2013); State
v. Branch, 834 N.W.2d 604, 607 (Neb. 2013).
For these reasons, Ildefonso is not entitled to relief based on any of the
arguments raised in grounds 1-17, 25-40, 44-47, 49-50, 53-62, 66-75, and 78-80 of
the amended petition.2 In addition, Ildefonso is not entitled to relief based on the
arguments raised in grounds 77 and 81 of the amended petition. It is in these grounds
for relief that Ildefonso asserted that appellate counsel was ineffective for failing to
raise the summarily-rejected arguments on direct appeal.
Finally, I have independently analyzed the arguments raised in each of these
grounds of the amended petition. I have concluded that all of the arguments are
conclusory, based only on general assertions of prejudice or no assertions of prejudice
at all, or are meritless. To discuss my reasoning for each of these arguments would
unduly prolong the length of this opinion, and it is unnecessary in light of the
extremely deferential standard of review that applies to the factual and legal
conclusions of the state courts.

The Nebraska Supreme Court did not identify which of Ildefonso’s arguments
it summarily dismissed based on procedural grounds—i.e., because Ildefonso alleged
only conclusions of fact or law—and which it summarily dismissed as plainly
meritless. But the distinction makes no difference here. Even if the state court’s
rejection of some of these arguments was based on procedural grounds, then Ildefonso
needed to demonstrate “cause” and “prejudice” to excuse his failure to properly raise
the arguments in state court; he did not do so. See Walker v. Martin, 562 U.S. 307,
316 (2011) (“[A]bsent showings of ‘cause’ and ‘prejudice,’ federal habeas relief will
be unavailable when (1) a state court [has] declined to address a prisoner’s federal
claims because the prisoner had failed to meet a state procedural requirement, and (2)
the state judgment rests on independent and adequate state procedural grounds.”)
(internal citations and quotation marks omitted).
2

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C.

Grounds 18-24 and 63-65

Ildefonso argues appellate counsel was ineffective when he failed to argue on
direct appeal that Ildefonso’s trial counsel should have objected to various witnesses
on the basis that the State either failed to timely endorse them on the information or
failed to endorse them at all in violation of Neb. Rev. Stat. § 29-1602. (Filing No. 13
at CM/ECF pp. 32-42, 102-104.)
Ildefonso is not entitled to relief here. The prosecution’s failure to comply with
the endorsement requirements set forth in Nebraska’s state statutes raises an issue of
state law. It is well established that errors of state law do not provide a basis for
habeas relief. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
Moreover, Ildefonso cannot show that he was prejudiced by appellate counsel’s
failure to challenge the late endorsement or lack of endorsement of witnesses on direct
appeal. The Nebraska Supreme Court considered and rejected the argument in
Ildefonso’s post-conviction action. See Ildefonso II (Filing No. 20-2 at CM/ECF pp.
19-22). There is nothing in the record to suggest the result would have been different
if the argument had been raised on direct appeal. Accordingly, Ildefonso is not
entitled to relief based on any of the arguments asserted in grounds 18-24 and 63-65
of the amended petition.
D.

Ground 41

Ildefonso argues appellate counsel was ineffective when he failed to argue on
direct appeal that trial counsel failed to object when Melvin McCowen testified that
Kristine Reh told him she saw Ildefonso shoot Carr Hume. Ildefonso contends Reh

19

did not testify at trial that she saw Ildefonso shoot Hume; therefore, McCowen’s
testimony was false.3 (Filing No. 13 at CM/ECF pp. 67-68.)
Ildefono’s argument is meritless. The trial record reflects McCowen testified
as to what Reh told him during an interview on October 1, 1999, not as to what Reh
stated at trial. (Filing No. 20-22 at CM/ECF p. 51.) Therefore, appellate counsel was
not ineffective for failing to challenge McCowen’s testimony as “false.”
Moreover, Ildefonso cannot show that he was prejudiced by appellate counsel’s
failure to challenge McCowen’s testimony as false. The Nebraska Supreme Court
considered and rejected the argument in Ildefonso’s post-conviction action.
See Ildefonso II (Filing No. 20-2 at CM/ECF pp. 22-23). There is nothing in the
record to suggest the result would have been different if the argument had been raised
on direct appeal. Accordingly, Ildefonso is not entitled to relief based on ground 41
of the amended petition.
E.

Ground 42

Ildefonso argues appellate counsel was ineffective when he failed to argue on
direct appeal that trial counsel made improper prejudicial comments about Ildefonso
during his cross-examination of Christina Devore-Alexander. (Filing No. 13 at
CM/ECF pp. 69-70.) Ildefonso argues trial counsel’s comments “painted [him] in a
negative light.” (Filing No. 13 at CM/ECF p. 69.)
The Nebraska Supreme Court considered and rejected this argument in its order
affirming the state district court’s denial of post-conviction relief. The court wrote:

The Nebraska Supreme Court determined on direct appeal that the statement
was inadmissible hearsay, but that its erroneous admission was harmless error.
Ildefonso I, 634 N.W.2d at 265.
3

20

The record shows that Ildefonso’s trial counsel asked
Devore-Alexander why she had gone to pick up Reh on the night of the
murder:
Q. And your primary purpose in going to the Best
Western Regency was to intervene between the defendant
and Ms. Reh who you knew were in an argument about this
[other guy] Juan?
A. Right.
Q. Is that correct?
A. Right.
Q. And you feared, I guess, for Ms. Reh’s safety
because of the argument that she was having with the
defendant?
A. She had told me that he tried to strangle her
before, and I seen him a couple of times get up real close in
her face.
Q. So I guess the answer to my question is, yes, you
were afraid for her safety - A. Yes. Yes.
Q. Because of what you thought might happen to Ms.
Reh?
A. Yes.
And just after this exchange, Ildefonso’s trial counsel again referred to
Reh being afraid of Ildefonso.
It is unclear why Ildefonso’s trial counsel asked about DevoreAlexander’s motivation for picking up Reh on the night of the murder.
21

Later in his cross-examination, Ildefonso’s trial counsel attacked
Devore-Alexander’s credibility by implying that she was not afraid for
Reh’s safety because after the shooting she dropped Reh and Ildefonso
off at the same location. From our review of the record, however, it is
difficult to say that Ildefonso’s trial counsel made a reasonable strategic
decision in pursuing this line of questioning - - it offered no benefit to
Ildefonso and could have portrayed Ildefonso as a “bad guy” to the jury.
Even so, Ildefonso must still prove that he was prejudiced by this
deficient performance. In addressing the prejudice component of the
Strickland test, we focus on whether a trial counsel’s deficient
performance rendered the result of the trial unreliable or the proceeding
fundamentally unfair. [] To show prejudice, Ildefonso must demonstrate
a reasonable probability that but for his counsel’s deficient performance,
the result of the proceeding would have been different. [] A reasonable
probability is a probability sufficient to undermine confidence in the
outcome. []
This exchange between Ildefonso’s trial counsel and DevoreAlexander does not undermine our confidence in the outcome of the trial.
Devore-Alexander’s motivation for picking up Reh was irrelevant to the
crimes charged. And Ildefonso’s trial counsel’s questions, and
Devore-Alexander’s answers, did not change the rest of
Devore-Alexander’s testimony. She testified that she let Ildefonso out of
the car and that she later heard a gunshot. When she looked up, she saw
Ildefonso holding a gun, arm extended toward Hume, whose body was
lying on the ground. Under these circumstances, and considering the
wealth of other evidence supporting Ildefonso’s conviction, we conclude
that Ildefonso was not prejudiced by his counsel’s questions.
Ildefonso II (Filing No. 20-2 at CM/ECF pp. 23-25).
I must grant substantial deference to the Nebraska Supreme Court’s decision
on this issue. The Nebraska Supreme Court reviewed all of the evidence and
determined, based on Strickland, that Ildefonso was not prejudiced by the relevant
exchange between trial counsel and Devore-Alexander. Ildefonso did not argue,
much less establish, that the Nebraska Supreme Court’s decision on this issue was
22

based on an unreasonable determination of the facts in light of the evidence or that it
was contrary to, or involved an unreasonable application of, clearly established
federal law as determined by the United States Supreme Court.
More to the point here, Ildefonso was not prejudiced by his appellate counsel’s
failure to raise the argument on direct appeal. The Nebraska Supreme Court
considered and rejected the argument in the post-conviction action. There is nothing
in the record to suggest the result would have been different if the argument had been
raised on direct appeal instead. Accordingly, Ildefonso is not entitled to relief based
on ground 42 of the amended petition.
F.

Ground 43

Ildefonso argues appellate counsel was ineffective when he failed to argue on
direct appeal that trial counsel improperly “open[ed] the door” for the prosecution to
probe Ildefonso’s past drug use. Specifically, Ildefonso argues that, when trial
counsel asked Christina Devore-Alexander about her history of drug use, she
discussed using drugs with Ildefonso. This allowed the State to follow up with
additional questions about Devore-Alexander’s drug use with Ildefonso. (Filing No.
13 at CM/ECF pp. 70-71.)
The Nebraska Supreme Court considered whether trial counsel’s performance
was deficient. The court wrote:
Ildefonso’s trial counsel’s decision to ask Devore-Alexander about her
history of drug use was a reasonable strategic decision because it called
into question her ability to recall information. Her answers revealed that
she was getting high every day in the months before the murder, though
she then said she did not use drugs on the day of, or the days before, the
murder. She also testified to a lack of memory on many questions.
Logically, it seems that frequent drug use could cause a person to not
remember specific details. Considering these circumstances, it was a
23

reasonable strategic decision to inquire into her history of drug use to
attack her credibility. This was not deficient performance, and the files
and records show that Ildefonso is not entitled to relief on this issue.
Ildefonso II (Filing No. 20-2 at CM/ECF pp. 26-27).
As stated previously in this order, I must grant substantial deference to the
Nebraska Supreme Court’s findings of fact and conclusions of law. The Nebraska
Supreme Court reviewed all of the evidence and determined Ildefonso’s trial
counsel’s decision to question Devore-Alexander about her previous drug use was a
reasonable strategic decision. Ildefonso did not argue, much less establish, that the
Nebraska Supreme Court’s decision on this issue was based on an unreasonable
determination of the facts in light of the evidence or that it was contrary to, or
involved an unreasonable application of, clearly established federal law as determined
by the United States Supreme Court.
More to the point here, Ildefonso was not prejudiced by his appellate counsel’s
failure to raise the argument on direct appeal. The Nebraska Supreme Court
considered and rejected the argument in the post-conviction action. There is nothing
to suggest the result would have been different if the argument had been raised on
direct appeal instead. Accordingly, Ildefonso is not entitled to relief based on ground
43 of the amended petition.
G.

Ground 48

Ildefonso argues appellate counsel was ineffective when he failed to argue on
direct appeal that trial counsel’s performance was deficient when he advised Ildefonso
not to present a defense or testify on his own behalf. Ildefonso claims that, had trial
counsel presented a defense, Ildefonso would have been acquitted. (Filing No. 13 at
CM/ECF pp. 77-79.) Ildefonso did not explain what evidence trial counsel should

24

have presented or what testimony Ildefonso would have given had he been called to
testify.
A federal court cannot grant relief to a habeas petitioner who presents only
conclusory claims for relief. That is, “[i]n order to warrant relief[,] . . . a habeas
corpus petitioner must allege sufficient facts to establish a constitutional claim. Mere
conclusory allegations will not suffice.” Wiggins v. Lockhart, 825 F.2d 1237, 1238
(8th Cir. 1987). Because Ildefonso offered no facts or argument in support of ground
48, he is not entitled to relief.
H.

Grounds 51 and 52

Ildefonso argues appellate counsel was ineffective when he failed to argue on
direct appeal that trial counsel should have objected to the prosecutor’s closing
argument. Ildefonso claims the prosecutor incorrectly stated Ildefonso always carried
a 9-mm handgun, and also implied to the jury that Ildefonso had a responsibility to
defend himself. (Filing No. 13 at CM/ECF pp. 83-85.)
The Nebraska Supreme Court considered and rejected this argument in its order
affirming the state district court’s denial of post-conviction relief. The court wrote:
The record and files affirmatively show that Ildefonso is not
entitled to relief on these claims. The record shows that the prosecutor
did not state that Ildefonso always carried a 9- mm handgun. Instead, the
prosecutor stated only that the 9-mm handgun was found in a backpack,
exhibit 32, which the defendant “carrie[d] with him pretty much
wherever he [went] . . .” And testimony at trial supported that statement.
The record also shows that the prosecutor did not imply that it was
Ildefonso’s burden to prove his innocence. Rather, the prosecutor used
the rebuttal argument for its purpose: to rebut the inferences and claims
that Ildefonso’s trial counsel made during closing argument.
Ildefonso II (Filing No. 20-2 at CM/ECF pp. 29-30).
25

Ildefonso did not rebut the Nebraska’s Supreme Court’s findings of fact on this
issue, nor did he make any effort to do so. Separately, I have reviewed the relevant
portions of the prosecutor’s closing arguments. (See Filing No. 21-6 at CM/ECF pp.
31, 85.) I agree the record affirmatively shows that Ildefonso is not entitled to relief
on this claim.
I.

Stand-Alone Actual-Innocence Claim (Ground 76)

Ildefonso argues he is actually innocent of the murder of Carr Hume. The crux
of Ildefonso’s argument is that Amy Taylor framed him. (Filing No. 13 at CM/ECF
pp. 126-127.)
The Supreme Court has not held that a stand-alone claim of actual innocence
is cognizable in federal habeas corpus cases, but there is at least some suggestion that
such claims are cognizable. See Nooner v. Hobbs, 689 F.3d 921, 922 n. 7 (8th Cir.
2012) (“The Supreme Court has suggested that a stand-alone claim of actual
innocence may be cognizable.”) (citing House v. Bell, 547 U.S. 518, 554 (2006);
Herrera v. Collins, 506 U.S. 390, 417 (1998)). The Supreme Court has not articulated
a standard of proof that might apply to such a claim, but some justices have stated that
any such standard would be more stringent than that required to prove actual
innocence for gateway purposes. See, e.g., Herrera, 506 U.S. at 426 (O’Connor, J.,
concurring) (explaining that an “extraordinarily high” standard of review would apply
to any such claim because the conviction under attack presumably would have
resulted from an underlying state trial free of any prejudicial constitutional error).
The standard for gateway purposes requires a habeas petitioner to support his
allegations with “new, reliable evidence” that was not presented at trial and must
show that it was more likely than not that, in light of the new evidence, no juror,
acting reasonably, would have voted to find the petitioner guilty beyond a reasonable
doubt. See McQuiggin, 133 S. Ct. 1924, 1928 (2013); Schlup v. Delo, 513 U.S. 298
(1995).
26

Here, Ildefonso’s claim of actual innocence is meritless even if measured
against the standard required to prove actual innocence for gateway purposes. He
presented no new, reliable evidence. Moreover, the prosecution presented a wealth
of evidence against him, including the eye-witness testimony of two
individuals—Christina Devore-Alexander and Kristine Reh—who were with him at
the time of the murder. Accordingly, Ildefonso is not entitled to relief based on
ground 76 of the amended petition.
IV. PENDING MOTIONS
Ildefonso asked the court to “expand the record” to include a copy of the
original post-conviction motion he filed in the state district court. (Filing No. 58.)
Ildefonso attached the original post-conviction motion to his request to expand the
record.
Ildefonso’s original motion is irrelevant to his habeas corpus claims. The state
district court considered only Ildefonso’s amended post-conviction motion when it
denied Ildefonso post-conviction relief. (See Filing No. 20-13 at CM/ECF p. 31.)
Moreover, the claims Ildefonso procedurally defaulted are defaulted because
Ildefonso failed to raise them in his direct appeal, not because he failed to raise them
in his post-conviction action. In any event, I have reviewed the original postconviction motion and nothing in the document alters my findings in this case.
Therefore, I will deny Ildefonso’s request to “expand the record” to include his
original post-conviction motion.
Ildefonso also seeks leave to conduct discovery in this case so that he can
discover various unknown items that will support his claim of innocence. (Filing
Nos. 59 and 60.) The records and filings in this case plainly demonstrate that
Ildefonso is not entitled to habeas corpus relief. Therefore, I find discovery is
unnecessary and I will deny Ildefonso’s request to conduct discovery. For these same
reasons, I will deny Ildefonso’s requests for the appointment of counsel.
27

V. CERTIFICATE OF APPEALABILITY
A petitioner cannot appeal an adverse ruling on his petition for writ of habeas
corpus under § 2254 unless he is granted a certificate of appealability. 28 U.S.C.
§ 2253(c)(1); 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b)(1). The standards for
granting certificates of appealability (1) where the district court reaches the merits or
(2) where the district court rules on procedural grounds are set forth in Slack v.
McDaniel, 529 U.S. 473, 484-485 (2000). I have applied the appropriate standard and
determined Ildefonso is not entitled to a certificate of appealability.
IT IS THEREFORE ORDERED that:
1.
This case is dismissed with prejudice and the court will not issue a
certificate of appealability.
2.
Ildefonso’s discovery motions, request to “expand the record,” and
requests for the appointment of counsel (Filing Nos. 58, 59, and 60) are denied.
3.

I will enter judgment by a separate document.

DATED this 21st day of March, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

28