Torres v. Frakes

Filing 27

ORDER - Petitioner's Motion to Amend Petition for Writ of Habeas Corpus (Filing No. 26 ) is granted. Petitioner shall file the Amendment to Petition (Filing No. [26-1]) on or before January 19, 2018. Respondent shall file an answer or other res ponsive pleading within thirty days of the filing of the Amendment to Petition. Petitioner's Motion Requesting Additional Relevant State Court Documents to be Filed (Filing No. 21 ) is granted. Respondent shall file the requested additional documents on or before February 28, 2018. Ordered by Magistrate Judge Michael D. Nelson. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MARCO E. TORRES, JR.,
Petitioner,

4:17CV3078

vs.
ORDER
SCOTT FRAKES, Director, Nebraska
Department of Correctional Services,
Respondent.
This matter is before the Court on Petitioner, Marco Torres, Jr.’s, Motion Requesting
Additional Relevant State Court Documents to be Filed (Filing No. 21) and the Motion to
Amend Petition for Writ of Habeas Corpus (Filing No. 26). No response in opposition to the
motions was filed by Respondent.
Petitioner requests leave to amend Claim 4 of his petition that challenges the
constitutionality of his death sentences under the Fifth, Sixth, Eighth, and Fourteenth
Amendments of the United States Constitution. Petitioner’s proposed amendment “clarifies and
expands the arguments contained in subpart Claim 4I related to the legislative repeal and reimposition of the death penalty.” Petitioner believes the amendment will “more accurately
reflect” the claims raised in his recently filed state court motion for post-conviction relief.
(Filing No. 26). After review of Petitioner’s motion and proposed amendment, and for good
cause shown, Petitioner is granted leave to file the proposed Amendment to the Petition (Filing
No. 26-1).
Petitioner has also filed a motion requesting that the Respondent file the following
additional court documents:


Bill of Exceptions Exhibit Folder 9 (exhibits 175-198)
o Includes law enforcement records documenting the investigation offered as
exhibits to the state court in support of Petitioner’s ineffective assistance of
counsel and Brady claims, which are raised in this federal habeas petition in
Claims 6 and Claim 8.
o Includes sign-in sheets from the Salvation Army offered to the state court
relevant to Petitioner’s Claim 6B, raising ineffective assistance of trial counsel
for failing to investigate and present evidence contradicting the State’s timeline
of events and supporting his claim of innocence.
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o Other exhibits Petitioner asserts are relevant to Claim 1, raising ineffective
assistance of trial counsel at the sentencing phase for failing to investigate and
present mitigating evidence, and to Claim 6, raising ineffective assistance of trial
counsel during guilt phase.


Bill of Exceptions Exhibit Folder 10 (exhibits 199-201)
o Includes depositions offered in the state court proceedings that Petitioner asserts
are relevant to his claims of ineffective assistance of trial counsel during guilt
and sentencing phases and his Brady claim.



Bill of Exceptions Exhibit Folder 11 (exhibits 202-205)
o Includes depositions and trial counsel’s billing records offered in state court
proceedings relevant to Petitioner’s ineffectiveness of trial counsel at the guilt
and sentencing phases and Brady claims.



The juror questionnaires for the serving jurors (including alternates).
o Petitioner asserts the juror questionnaires are relevant to his claim that the jury
convicted based upon improper factors and that trial counsel ineffectively failed
to protect his right to a fair and impartial jury.
o Petitioner also believes it may be a relevant factor in the court’s determination of
whether a claim is exhausted.

(Filing No. 21). Petitioner represents that these records are part of the state court record on file
with the Hall County District Court Clerk, and believes they are indispensable to this court’s
review of the reasonableness of the state court decisions. Upon review of Petitioner’s motion,
the Court finds he has adequately identified additional state court records and explained why
they are relevant to his claims. Accordingly,

IT IS ORDERED:
1. Petitioner’s Motion to Amend Petition for Writ of Habeas Corpus (Filing No. 26) is
granted. Petitioner shall file the Amendment to Petition (Filing No. 26-1) on or before
January 19, 2018.
2. Respondent shall file an answer or other responsive pleading within thirty days of the
filing of the Amendment to Petition.
3. Petitioner’s Motion Requesting Additional Relevant State Court Documents to be
Filed (Filing No. 21) is granted. Respondent shall file the requested additional
documents on or before February 28, 2018.

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Dated this 10th day of January, 2018.

BY THE COURT:

s/ Michael D. Nelson
United States Magistrate Judge

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