Balvin v. Frakes

Filing 22

MEMORANDUM AND ORDER that judgment will be entered for the Respondent and against the Petitioner, providing that the Petitioner shall take nothing, and his habeas corpus petition (Filing no. 1 ) is denied and dismissed with prejudice. No certificate of appealability will be issued. A separate judgment will be entered. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SONNY D. BALVIN,
Petitioner,
v.
SCOTT FRAKES,
Respondent.

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8:15CV56

MEMORANDUM
AND ORDER

Sony D. Balvin (Balvin) has filed a petition for writ of habeas corpus under the
provisions of 28 U.S.C. § 2254 challenging his conviction for first-degree sexual
assault. The Respondent (essentially the State of Nebraska) has filed an answer and
a full and complete record of the state court proceedings. There is no need for an
evidentiary hearing. The matter has been fully briefed.
I now deny the petition with prejudice. Albeit in summary fashion, the reasons
for my denial follow next.
Balvin’s Claims
Balvin has two claims with various parts:
Claim One: Petitioner was denied the effective assistance of counsel in
violation of the Sixth and Fourteenth Amendments because trial counsel
(a) failed to impeach Petitioner’s accuser at trial; and (b) failed to raise
a hearsay objection when the prosecution offered evidence of “recorded
telephone conversations” between Petitioner and two other parties.

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Claim Two: Petitioner was denied the effective assistance of counsel in
violation of the Sixth and Fourteenth Amendments because appellate
counsel failed to argue that (a) trial counsel was ineffective for failing
to impeach Petitioner’s accuser; (b) trial counsel was ineffective for
failing to raise a hearsay objection when the prosecution offered
evidence of “recorded telephone conversations” between Petitioner and
two other parties; (c) the trial court erred in admitting evidence of letters
from Petitioner to his former girlfriend; and (d) the trial court erred in
admitting testimony by Petitioner’s fiancé concerning her sexual
relationship with Petitioner.
(Filing no. 6.)
Brief Background
In 2009, Balvin was convicted by a jury of first-degree sexual assault. As a
result of his conviction, he was sentenced to 24 to 36 years of imprisonment. In
addition, the trial court found that the offense was aggravated, which justified the
imposition of lifetime community supervision after Balvin’s release from prison.
On direct appeal, Balvin had new counsel, different from trial counsel. The
conviction and prison sentence were affirmed by the Nebraska Court of Appeals, but
the matter was remanded to the district court in order for a jury to make a finding
concerning whether Balvin’s offense was aggravated and, thus, made him subject to
the imposition of lifetime community supervision. State v. Balvin, 18 Neb. App. 690,
791 N.W.2d 352 (2010) (Balvin I) (a petition for further review to the Nebraska
Supreme Court was denied).
On remand, the district court amended the previously imposed sentence by
removing the imposition of lifetime community supervision. Balvin remained
sentenced to 24 to 36 years of imprisonment. Balvin appealed from the amended
sentencing order. The Nebraska Court of Appeals affirmed the sentence. State v.

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Balvin, No. A–11–244, 2011 WL 6251088 (Neb. App. Dec. 13, 2011) (a petition for
further review to the Nebraska Supreme Court was denied) (Balvin II ).
Balvin then filed a state postconviction action, which was denied and dismissed
by the district court. His appeal was unsuccessful as well. State v. Balvin, No. A-13529, 2014 WL 3421148, at *1 (Neb. Ct. App. July 15, 2014) (a petition for further
review was denied by the Supreme Court on November 19, 2014).
Balvin filed his petition in this court on February 17, 2015. The Respondent
has answered. The Respondent has also filed the state court records. (Filing no. 9.)
The matter has been briefed and is now submitted.
Legal Overview
The law on federal habeas corpus is well-established. Therefore, I provide only
an overview of the most pertinent aspects of that law as applied to this case. I proceed
to that task next.
Exhaustion and Procedural Default
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)

the applicant has exhausted the remedies available
in the courts of the State; or

(B)

(i)

there is an absence of available State
corrective process; or

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(ii)

circumstances exist that render such process
ineffective to protect the rights of the
applicant.

28 U.S.C. § 2254(b)(1).
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. In Nebraska, “one complete round” ordinarily
means that each § 2254 claim must have been presented in an appeal to the Nebraska
Court of Appeals, and then in a petition for further review to the Nebraska Supreme
Court if the Court of Appeals rules against the petitioner. See Akins v. Kenney, 410
F.3d 451, 454-55 (8th Cir. 2005). “In order to fairly present a federal claim to the
state courts, the petitioner must have referred to a specific federal constitutional right,
a particular constitutional provision, a federal constitutional case, or a state case
raising a pertinent federal constitutional issue in a claim before the state courts.”
Carney v. Fabian, 487 F.3d 1094, 1096 (8th Cir. 2007) (internal citation and
quotation marks omitted).
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
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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)).
Nebraska Law Relevant to Procedural Default
In Nebraska, when it comes to the issue of raising ineffective assistance of trial
counsel on direct appeal, “[w]e have said that in order to raise the issue of ineffective
assistance of trial counsel where appellate counsel is different from trial counsel, a
defendant must raise on direct appeal any issue of ineffective assistance of trial
counsel which is known to the defendant or is apparent from the record, or the issue
will be procedurally barred on postconviction review.” State v. York, 731 N.W.2d
597, 602 (2007).
Under Nebraska law, you don’t get two bites of the postconviction apple; that
is, “[a]n appellate court will not entertain a successive motion for postconviction
relief unless the motion affirmatively shows on its face that the basis relied upon for
relief was not available at the time the movant filed the prior motion.” State v. Ortiz,
670 N.W.2d 788, 792 (Neb. 2003). Additionally, “[a] motion for postconviction
relief cannot be used to secure review of issues which were or could have been
litigated on direct appeal.” Hall v. State, 646 N.W.2d 572, 579 (Neb. 2002).
Deference 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
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determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). 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.”).

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The Eighth Circuit clarified what it means for a claim to be adjudicated on the
merits, finding that:
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). The court also determined that a federal court
reviewing a habeas claim under AEDPA must “look through” the state court opinions
and “apply AEDPA review to the ‘last reasoned decision’ of the state courts.” Id. at
497. A district court should do “so regardless of whether the affirmance was
reasoned as to some issues or was a summary denial of all claims.” Id.
Ineffective Assistance of Counsel
The two-pronged standard of Strickland v. Washington, 466 U.S. 668 (1984)
governs the merits of an ineffective assistance of counsel claim. Strickland requires
that a 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. 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.
Judicial scrutiny of counsel’s performance must be highly deferential, and a
court must indulge a strong presumption that counsel’s conduct falls within the wide
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range of reasonable professional assistance. Knowles v. Mirzyance, 556 U.S. 111,
121-123 (2009). In the habeas context, there is doubly deferential standard of review
because Strickland is a general standard, and habeas review by the very nature of the
remedy requires deference to the separate sovereign’s decision. Id.
Analysis of Balvin’s Claims
As noted earlier, Balvin brings two claims. However, each claim has multiple
parts. I will proceed to briefly examine each claim.
Claim 1(a) and Claim 2(a)–Trial counsel failed to impeach Balvin’s
accuser at trial, and appellate counsel erred by failing to assert that issue.
As Balvin has phrased this portion of his claims, they are procedurally
defaulted in that they were not fairly presented to the Nebraska courts, and there is
no available state remedy to pursue them.
Besides, what Balvin’s is really complaining about is not his counsel’s
performance, but the refusal of the state trial judge to allow trial counsel to impeach
Balvin’s victim with a prior police report. That issue was thoroughly discussed by the
Nebraska Court of Appeals in Balvin I, 791 N.W.2d at 362-364 (Defendant charged
with first-degree sexual assault was not entitled under Confrontation Clause to
admission of extrinsic evidence to prove that complainant had made a prior false
report of sexual assault 11 years earlier when she was 10 years old; complainant
stated that she could not recall making such a report, and the circumstances of the
prior report were significantly different from the incident between the defendant and
the complainant). Balvin cannot now clothe his real argument in the garment of
ineffective assistance of counsel. Even if he could, the deferential standard of review
dooms this claim.

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Still further, in Balvin III, the Nebraska Court of Appeals made it clear that
appellate counsel’s performance was not deficient for failing to attack trial counsel
on direct appeal for failing to call a police officer to testify about the report that trial
counsel could not get into evidence regarding the victim’s report made when she was
10 years of age. Balvin III, 2014 WL 3421148, at *5 (“Accordingly, Balvin’s trial
counsel’s performance was not deficient when he failed to offer the testimony of the
police officer. Such offer would not have been successful pursuant to the language
of rule 608(2). Because any offer of the testimony of the police officer would not
have been successful, Balvin’s appellate counsel was not deficient in failing to raise
this issue in his direct appeal.”) Once again, even if I reviewed this claim on the
merits, the deferential standard requires dismissal.
Claim 1(b)and Claim 2(b)–Trial counsel failed to raise a hearsay objection
when the prosecution offered evidence of “recorded telephone
conversations” between Balvin and two other parties, and appellate counsel
was ineffective for failing to raise the issue.
This claim is frivolous. Balvin’s trial counsel did object to the recordings.
Balvin III, 2014 WL 3421148, at *5 (“Before any of the recordings were played for
the jury, Balvin’s counsel objected generally to the admission of the recordings,
arguing, ‘I believe the CD in question does contain hearsay and does contain
statements other than that of . . . Balvin.’ The district court overruled the objection.’”)
As an aside, the recordings were clearly admissible, as Balvin was one of the
speakers, and the other speakers’ statements could be received in evidence to place
Balvin’s statements in context, among other reasons.
Claim 2(c)–The trial court erred in admitting evidence of letters from Balvin
to his former girlfriend, and appellate counsel was ineffective for failing to
raise that issue.
This issue was decided against Balvin in Balvin III, 2014 WL 3421148, at *7-8
(holding, among other things, that Balvin’s own letters were not hearsay, that they
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were relevant as they were tantamount to admissions of guilt, and that appellate
counsel was not ineffective as a result). Giving due deference to the thoroughly
reasoned opinion of the Nebraska Court of Appeals, there is obviously no meritorious
federal claim.
Claim 2(d)–The trial court erred in admitting testimony by Balvin’s fiancé
concerning her sexual relationship with Balvin, and appellate counsel was
ineffective for failing to raise that issue.
This issued was decided against Balvin in Balvin III, 2014 WL 3421148, at *89 (“Because Blaker’s testimony about her and Balvin’s physical relationship was
relevant to prove the State’s theory about motive and because Balvin cannot show
prejudice as a result of the testimony, his appellate counsel was not ineffective in
failing to raise the admissibility of such testimony on direct appeal.”) Again, the
Nebraska Court of Appeals thoroughly examined Balvin’s claim and found it
wanting. Giving that decision the deference it is due, this claim must be denied.
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); Fed. R. App. P. 22(b)(1). A certificate of appealability cannot be
granted unless the petitioner “has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, “[t]he
petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529
U.S. 473, 484 (2000).
In this case, Balvin has failed to make a substantial showing of the denial of
a constitutional right. I am not persuaded that the issues raised in Balvin’s petition
are debatable among reasonable jurists, that a court could resolve the issues
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differently, or that the issues deserve further proceedings. Accordingly, I will not
issue a certificate of appealability in this case.
IT IS ORDERED that judgment will be entered for the Respondent and against
the Petitioner, providing that the Petitioner shall take nothing, and his habeas corpus
petition (Filing no. 1) is denied and dismissed with prejudice. No certificate of
appealability will be issued. A separate judgment will be entered.
DATED this 13th day of January, 2016.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S.
District Court for the District of Nebraska does not endorse, recommend, approve, or
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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.
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