Alarcon-Chavez v. The State of Nebraska et al

Filing 22

MEMORANDUM AND ORDER - that Petitioner's Petition for Writ of Habeas Corpus (Filing No. 1 ) is denied and dismissed with prejudice. No certificate of appealability has been or will be issued. The court will enter a separate judgment in accordance with this Memorandum and Order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LEODAN ALARCON-CHAVEZ,
Petitioner,

8:17CV345

vs.
THE STATE OF NEBRASKA, and
SCOTT FRAKES, Director of the
Nebraska Department of Corrections;

MEMORANDUM
AND ORDER

Respondents.
This matter is before the court on Petitioner Leodan Alarcon-Chavez’s
(“Petitioner” or “Alarcon-Chavez”) Petition for Writ of Habeas Corpus. (Filing No.
1.) For the reasons that follow, Petitioner’s habeas petition is denied and dismissed
with prejudice.
I. CLAIMS
Summarized and condensed, and as set forth in the court’s initial review order
(Filing No. 8), Petitioner asserted the following claims that were potentially
cognizable in this court:
Claim One:

Petitioner was denied his right to due process under the
5th, 6th, and 14th Amendments because the trial court
erred in rejecting Petitioner’s proposed jury instruction
and failing to find the entire step instruction was an
incorrect statement of law.

Claim Two:

Petitioner was denied his right to be free from
unreasonable searches and seizures under the 4th and 14th
Amendments because the trial court erred in overruling
Petitioner’s amended motion to suppress based on an

unauthorized seizure of Petitioner’s vehicle without a
warrant.
Claim Three:

Petitioner was denied his right to a fair trial under the 5th,
6th, and 14th Amendments because of the prosecutor’s
inflammatory remarks made during his closing and
rebuttal arguments.

Claim Four:

Petitioner was denied his rights to due process and to
effective assistance of counsel under the 5th, 6th, and 14th
Amendments because trial counsel failed to (1) verify,
ensure, and/or preserve the making of an official record of
the voir dire proceeding, (2) raise a challenge under
Batson v. Kentucky, 476 U.S. 79 (1986), when the State
struck a Hispanic juror from the venire; (3) communicate
plea offers; (4) speak with witnesses provided by
Petitioner; (5) advise Petitioner of his right to
independently test DNA, (6) advise Petitioner of his right
to depose the State’s expert witnesses, and (7) object
during trial to the State’s questioning of key witnesses and
offers of exhibits.

Claim Five:

Petitioner was denied his rights to due process and to a fair
trial under the 5th, 6th, and 14th Amendments because he
could not understand one of the trial court Spanish
interpreters.

(Filing No. 8 at CM/ECF pp. 1-2.)
II. BACKGROUND
A. Conviction and Sentence
The court states the facts as they were recited by the Nebraska Supreme Court
in State v. Alarcon-Chavez, 821 N.W.2d 359, 361-65 (Neb. 2012) (affirming
Alarcon-Chavez’s convictions on direct appeal). (Filing No. 10-13.) See Bucklew v.

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Luebbers, 436 F.3d 1010, 1013 (8th Cir. 2006) (utilizing state court’s recitation of
facts on review of federal habeas petition).
1. Events Prior to Stabbing
Alarcon-Chavez and Maria Villarreal (“Villarreal”) began dating and moved
into an apartment together in January 2009. Alarcon-Chavez was the sole
leaseholder for their apartment, which was located in Norfolk, Nebraska. Their
relationship ended after Alarcon-Chavez informed Villarreal that he was seeing
another woman. After the breakup, Villarreal stayed in the apartment and AlarconChavez moved in with a friend. While he was living with his friend, Villarreal called
to threaten him on several occasions. Once, she told him that her boyfriend would
“adjust accounts” with him.
On two occasions when he knew Villarreal would not be present, AlarconChavez went back to the apartment he had shared with Villarreal. One time, he
noticed another man’s clothes.
In late February 2010, Villarreal began dating Aniel Campo Pino (“Pino”),
and he moved into the apartment with Villarreal and her 3-year-old son.
On March 9, 2010, Alarcon-Chavez saw Villarreal and Pino at a store.
Alarcon-Chavez returned to his friend’s house around 7 p.m. and began consuming
alcohol. Around 11 p.m., he drove across town to Wal-Mart to purchase more beer.
While at Wal-Mart, Alarcon-Chavez saw a set of Sunbeam knives, and he testified
he decided to purchase them for cooking purposes. He purchased the knives and beer
just after 11:30 p.m. He returned to his friend’s house and took the beer inside, but
left the knife set in the vehicle.
Alarcon-Chavez knew Villarreal went to work early in the morning. So,
around 5 a.m. on March 10, 2010, he drove to the apartment where Villarreal was
living. He testified that he intended to tell Villarreal and Pino to get out of his
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apartment. He explained he did not want to live with his friend anymore because he
had been sleeping on the floor and using clothes for a pillow.
2. Stabbing
Alarcon-Chavez arrived at the apartment around 5:10 or 5:20 a.m. He initially
got out of the vehicle, but then, after remembering Villarreal’s threat that Pino would
“adjust accounts” with him, reentered it. Alarcon-Chavez then remembered the knife
set, so he opened the package with his teeth and concealed one of the knives on his
body.
Alarcon-Chavez entered the apartment and found Villarreal in the kitchen
making her lunch. She had a knife in her hand. Villarreal came toward AlarconChavez and grabbed his body and somehow dropped the knife. She was holding
Alarcon-Chavez and yelling for the police and for Pino, and Alarcon-Chavez was
struggling to escape her grip. Fearing that Pino would attack him, he drew the knife
he had concealed on his body. Alarcon-Chavez and Villarreal continued to struggle,
and as he tried to get loose, he stabbed Villarreal in the abdomen. Alarcon-Chavez
did not remember stabbing her anywhere else. After the stabbing, Villarreal sat on
the floor and leaned back onto the carpet. Alarcon-Chavez then heard someone
coming and locked the door.
Pino had gone outside before Alarcon-Chavez arrived. He went back to the
apartment after he heard Villarreal scream. When he arrived, the door was locked.
Villarreal was screaming that he should not come in because a man was stabbing
her. Pino told Alarcon-Chavez to come out of the apartment so he could help
Villarreal, but Alarcon-Chavez did not respond. Pino left for a few minutes to give
Alarcon-Chavez an opportunity to leave, but Alarcon-Chavez was still inside when
Pino returned. Pino heard Villarreal saying, “Leo, don’t kill me, Leo, don't kill me.”
Alarcon-Chavez then told Villarreal he was going to kill her and said, “I told you
not to leave me because if you did this was going to happen to you.” Pino told a
neighbor to call the police and then retrieved a friend.
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Police officers were dispatched to the apartment. One officer knocked at 6:06
a.m. and tried unsuccessfully to open the door. An officer standing outside of the
apartment activated a tape recorder. Villarreal can be heard on the recording pleading
for help. She told Alarcon-Chavez to go away and not to kill her. She said that she
had been stabbed five times and that Alarcon-Chavez was still in the apartment with
her. The recording also revealed numerous expressions of pain from Villarreal,
several of which occurred just before the officers entered the apartment. AlarconChavez testified that Villarreal was not asking him not to kill her, but, rather, was
begging him not to kill himself.
When another officer arrived, he knocked and announced his presence and
tried to open the door. Either Pino or his friend told the officers they needed to get
inside. The officers entered the apartment by kicking the door several times. When
the officers opened the door, they observed Alarcon-Chavez standing over
Villarreal’s body with a knife in each hand. Alarcon-Chavez was shot with an
electric stun gun and handcuffed. He was covered in blood. As Alarcon-Chavez was
being taken out of the apartment, Pino’s friend asked him “why [he] didn’t do this
to [Pino and his friend],” and he responded that “he didn’t want to do any harm to
[them], the problem wasn’t with [them].”
Although she was obviously in pain, Villarreal was alert, coherent, and talking
when the officers first entered the apartment. Within a few minutes, her color turned
to an ash gray and she stopped speaking. There was a large amount of blood around
her. She died as a result of multiple stab wounds. Her most traumatic wound
traversed the upper right side of her abdomen. The cut went through the right lobe
of her liver and pierced her inferior vena cava. The wound caused a massive intraabdominal hemorrhage. She also had stab wounds on the right side of her back, on
her right tricep, and under her left armpit. She had several deep cuts on her hands
which were described at trial by one of the officers as classic defense wounds. The
officer explained, “[I]f somebody is attacking you with a knife, your natural reaction
is to protect your body [by] bring[ing] your hands up.”
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3. Investigation
Several items from the crime scene underwent DNA testing. Villarreal was
included as a match for blood found on two knives discovered at the scene, and
testing revealed an infinitely low possibility that the blood belonged to anyone else.
Villarreal was also a match for blood found on a blue shirt Alarcon-Chavez was
wearing at the time of his arrest. Blood found on the shirt also revealed a single male
profile. While this blood was never compared with the blood of Alarcon-Chavez,
one officer opined that the blood came from Alarcon-Chavez being shot with the
electric stun gun, which would have penetrated his skin. There were no defensive
wounds on Alarcon-Chavez’s hands.
Officers learned that a vehicle parked outside the apartment belonged to
Alarcon-Chavez. By looking through the window, an officer saw a package for three
Sunbeam knives protruding from a Wal-Mart bag; one of the knives was missing.
An officer believed that a knife found inside the apartment was the missing knife.
After discussing with the prosecutor what was observed in the vehicle, officers
decided to tow the vehicle without first obtaining a warrant. Department policy
permitted the officers to seize the vehicle and later obtain a search warrant. The
vehicle was transported and secured in the Norfolk Police Division’s sally port, and
a search warrant was obtained.
The following items were recovered from the vehicle: a knife; a package of
three knives in a Wal-Mart bag with the middle knife missing; an unbent piece of
plastic, which appeared to be cut from the package of knives; a barbell; a baseball
bat; a warning citation for speeding; a purchase contract showing the vehicle was
purchased on March 7, 2010; and another Wal-Mart bag with a holder for jumper
cables. The State charged Alarcon-Chavez with murder in the first degree, use of a
deadly weapon to commit a felony, and tampering with a witness. The latter charge
was based upon an incident between Alarcon-Chavez and Villarreal for which

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Alarcon-Chavez was charged with terroristic threats and use of a weapon to commit
a felony.
4. Motion to Suppress
Alarcon-Chavez moved to suppress all physical evidence seized by the
officers during the search of his vehicle, and following a hearing, the court made the
following factual findings:
Officers were called to an apartment where [Villarreal] was found with
multiple stab wounds. [Alarcon-Chavez] was present in the apartment
in the possession of a knife and was arrested. Law enforcement officers
were directed to an automobile in the apartment parking lot. A threeknife set was in plain view in the vehicle in which one knife was
missing. The knife recovered at the apartment appeared to be part of
that set. The vehicle was then impounded and transported into police
custody. A search warrant was obtained the next day and the car was
searched.
Based upon this evidence, the district court concluded that the officers had
probable cause to seize the vehicle. The court reasoned that because the officers had
probable cause to conduct a warrantless search of the vehicle, they were also
authorized to seize the vehicle and to search it after obtaining a warrant.
Accordingly, the court denied the motion to suppress.
5. Trial and Jury Instructions
A jury trial was held from June 13 to 16, 2011. At the jury instruction
conference, the court proposed giving NJI2d Crim. 3.1, the standard step instruction
defining the elements of first degree murder, second degree murder, and
manslaughter, in that order. Alarcon-Chavez objected to the proposed instruction.
Alarcon-Chavez’s proposed instruction did not challenge the elements of the
crimes. Rather, it contested the order in which the jury was to consider them. The

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court overruled Alarcon-Chavez’s objection, reasoning that the jury was required to
read all instructions in connection with one another and that the instructions
adequately informed the jury there were three levels of homicide.
6. Closing Arguments
During closing argument, the State discussed Alarcon-Chavez’s credibility
and truthfulness. The prosecutor questioned Alarcon-Chavez’s claim that he opened
the package of knives with his teeth, arguing the evidence showed it was cut open.
The prosecutor asserted that the knife purchase was not a spontaneous decision, as
claimed by Alarcon-Chavez, and that Alarcon-Chavez did not go back to the
apartment for the purpose of telling Villarreal and Pino to leave. The prosecutor
called Alarcon-Chavez’s claim that Villarreal was begging for him not to kill himself
“absolutely preposterous and insulting.” The prosecutor also likened the case to the
O.J. Simpson case. In concluding, the prosecutor said, “[T]he defense told you to
focus on credibility. But they call [Alarcon-Chavez] anyway.”
When Alarcon-Chavez’s defense attorney began his closing argument, he told
the jury he would not go through all the evidence or “sit and read [the jury]
instructions.” One of the prosecutor’s first statements in rebuttal was that it was
smart for the defense not to discuss the evidence or the jury instructions very much
because both essentially said to “go back and find [Alarcon-Chavez] guilty.” The
prosecutor asked the jury to be “fair to dead people” and again challenged AlarconChavez’s credibility, commenting, “You saw him lying.”
Finally, the prosecutor told a story about General Anthony McAuliffe’s being
informed that he was surrounded and that he should surrender. McAuliffe responded,
“‘Nuts,’” and when General George Patton learned of the response, he said, “[A]
man that eloquent has to be saved.” Turning back to the case, the prosecutor asked,
“[W]hat do you say to this crazy theory[?]” and stated, “What you’re going to have
to do is go back there and fill out guilty. That is the most eloquent answer you can

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give, and that is the short answer, the same answer [General] McAuliffe would have
given.” Alarcon-Chavez did not object to any of the prosecutor’s closing remarks.
7. Verdict and Sentencing
Alarcon-Chavez was found guilty on all counts. He was sentenced to life
imprisonment, with credit for 534 days of time served, for murder in the first degree;
to an indeterminate term of not less than 19 nor more than 20 years’ imprisonment
for use of a deadly weapon to commit a felony; and to an indeterminate term of not
less than 1 nor more than 2 years’ imprisonment for tampering with a witness. The
sentences were to run consecutively. Alarcon-Chavez timely appealed.
B. Direct Appeal
Alarcon-Chavez appealed his convictions to the Nebraska Court of Appeals
on September 20, 2011. (Filing No. 10-5 at CM/ECF pp. 1-2, 10.) The appeal was
directed to the Nebraska Supreme Court. (Id. at CM/ECF p. 13.) Alarcon-Chavez
was represented both at trial and on direct appeal by lawyers from the same office.
In his brief, Alarcon-Chavez assigned that the state district court erred in (1) finding
that it was lawful for the officers to seize his vehicle without a warrant and denying
his motion to suppress and (2) refusing to give his proposed jury instruction that
Villarreal’s death was intentional but provoked by a sudden quarrel and instead
giving an instruction on manslaughter that did not require the State to prove that the
killing was not the result of a sudden quarrel. Alarcon-Chavez also asserted that the
prosecutor’s closing remarks deprived him of his right to a fair trial and that reversal
was warranted under the plain error standard. (Filing No. 10-2 at CM/ECF p. 2, 1011; Filing No. 10-4 at CM/ECF p. 2.)
The Nebraska Supreme Court rejected Alarcon-Chavez’s claims of trial court
error and prosecutorial misconduct. (Filing No. 10-13.) With respect to AlarconChavez’s challenge to the trial court’s decision to deny his motion to suppress, the
court held that the police officers had probable cause to have immediately searched
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Alarcon-Chavez’s vehicle without a warrant and thus were not precluded from
seizing the vehicle and then searching it at a later time after obtaining a warrant,
because: the vehicle was operational and therefore readily movable; the officers
knew Villarreal had been severely injured with a knife; a Sunbeam knife was found
in the apartment; and a set of Sunbeam knives with one knife missing was clearly
visible from outside of Alarcon-Chavez’s vehicle. (Id. at CM/ECF p. 11.) Regarding
Alarcon-Chavez’s challenge to the manslaughter jury instruction, the court
concluded that where the jury found that premeditation, intent, and malice existed
beyond a reasonable doubt, Alarcon-Chavez was not prejudiced and his substantial
rights were not affected by any error in the instructions. (Id. at CM/ECF p. 12.) Last,
with respect to Alarcon-Chavez’s prosecutorial misconduct claims, the court
concluded that the prosecutor’s closing remarks did not rise to the level of
prosecutorial misconduct that would warrant reversal under the plain error standard
of review, even assuming they were improper, because: the comments were based
on the evidence and were few and isolated in a long closing argument and rebuttal;
the evidence that the murder was premeditated and deliberate was plenary; and any
resulting prejudice to Alarcon-Chavez was not of such a nature that to leave it
uncorrected would have resulted in damage to the integrity, reputation, and fairness
of the judicial process. (Id. at CM/ECF pp. 13-14.) As the court found no merit to
Alarcon-Chavez’s assigned errors, the court affirmed his convictions. (Id. at
CM/ECF p. 14.)
C. Postconviction Action
Alarcon-Chavez filed a verified motion for postconviction relief on February
27, 2013. (Filing No. 10-14 at CM/ECF pp. 2-3.) The state district court appointed
new counsel to represent Alarcon-Chavez in the postconviction matter. AlarconChavez was granted leave to amend his postconviction motion several times (id. at
CM/ECF pp. 4-27), and, through counsel, he filed a fourth amended motion for
postconviction relief on September 9, 2015. (Id. at CM/ECF pp. 28-38.) AlarconChavez alleged numerous claims: (1) that the state district court erred in failing to
require a recording of the voir dire proceeding and that his trial counsel was
10

ineffective for not verifying, ensuring and/or preserving the making of an official
record of the voir dire proceeding; (2) that trial counsel was ineffective for failing to
raise a Batson challenge to the State’s peremptory strike of a Hispanic juror; (3) that
trial counsel was ineffective for not timely communicating plea offers; (4) that trial
counsel was ineffective for failing to have an independent testing of the State’s DNA
and fingerprint evidence presented at trial; (5) that trial counsel was ineffective for
failing to depose any of the State’s expert witnesses; (6) that trial counsel was
ineffective for failing to notify him whether defense witnesses had been contacted
before trial and for failing to call defense witnesses at trial; (7) that trial counsel was
ineffective for failing to obtain an independent medical examination of Villarreal;
(8) that trial counsel was ineffective for failing to object to the prosecutor’s unfairly
prejudicial comments and offers of exhibits and for failing to strike certain answers;
(9) that trial counsel was ineffective for failing to sufficiently and accurately advise
him of his right to testify or not to testify and the possibility of outcomes in light of
the accusations and evidence presented against him; (10) that trial counsel was
ineffective for failing to properly prepare him for cross-examination; (11) that trial
counsel was ineffective for failing to object to jury instructions on manslaughter;
(12) that the state district court erred in denying trial counsel’s motion to sever the
tampering with a witness charge; (13) that the State’s striking of a Hispanic juror
and the prosecutor’s unfairly prejudicial comments constituted prosecutorial
misconduct; and (14) that his constitutional rights were violated because he was
unable to understand one of the court interpreters during trial and trial counsel was
ineffective for failing to so advise the court. (Id.)
An evidentiary hearing was held on the issues set forth in Alarcon-Chavez’s
fourth amended motion for postconviction relief. (Filing No. 10-20 at CM/ECF pp.
28-197.) In a written order entered April 6, 2016, the state district court denied
postconviction relief on all grounds. (Filing No. 10-14 at CM/ECF pp. 39-56.)
Alarcon-Chavez appealed to the Nebraska Supreme Court, arguing that the state
district court erred in denying his postconviction motion because his trial counsel
was constitutionally ineffective for failing to (1) “verify, ensure and or preserve” a
record was made of voir dire, (2) raise a challenge under Batson when the State
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struck a Hispanic juror from the venire, (3) communicate plea offers, (4) speak with
witnesses before trial, (5) advise Alarcon-Chavez of his right to independently test
DNA, (6) advise Alarcon-Chavez of his right to depose the State’s expert witnesses,
and (7) object during trial to the State’s questioning of key witnesses and offers of
exhibits. (Filing No. 10-17 at CM/ECF pp. 7-8; Filing No. 10-19.) Additionally,
Alarcon-Chavez argued that the state district court erred in not finding his
constitutional rights were violated because he was unable to understand one of the
court interpreters during trial. (Filing No. 10-17 at CM/ECF p. 8; Filing No. 10-19.)
In a published opinion, the Nebraska Supreme Court concluded that all of
Alarcon-Chavez’s claims were without merit and, thus, they were properly denied.
State v. Alarcon-Chavez, 295 Neb. 1014, 893 N.W.2d 710 (2017). (Filing No. 1022.) The mandate issued on March 17, 2017. (Filing No. 10-16 at CM/ECF p. 2.)
D. Habeas Petition
Alarcon-Chavez timely filed his Petition in this court on September 20, 2017.
(Filing No. 1.) In response to the Petition, Respondent filed an Answer, a Brief, and
the relevant state court records. (Filing Nos. 10, 11, 12 & 13.) Alarcon-Chavez filed
a brief in response to Respondent’s Answer (Filing No. 18), and Respondent filed a
reply brief (Filing No. 19). This matter is fully submitted for disposition.
III. STANDARDS OF REVIEW
A. 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). As
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explained by the Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S. Ct.
1495, 146 L. Ed. 2d 389 (2000), 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. Id. at 405-06, 120 S. Ct. 1495. 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, 131 S. Ct. 770,
178 L. Ed. 2d 624 (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. Indeed, “[i]t bears repeating that even a strong case for relief does
not mean the state court’s contrary conclusion was unreasonable.” 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 [Antiterrorism and Effective Death Penalty Act] standard to [the
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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:
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
the 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.
B. Procedural Bar
To be eligible for federal habeas corpus relief, a state prisoner must first
“exhaust his state law remedies and fairly present the facts and substance of his
habeas claim to the state court.” Carney v. Fabian, 487 F.3d 1094, 1096 (8th Cir.
2007) (quoting Middleton v. Roper, 455 F.3d 838, 855 (8th Cir. 2006)). “[S]tate
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, 119 S. Ct. 1728, 144 L. Ed. 2d
1 (1999). In Nebraska, “one complete round” ordinarily means that each habeas
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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. See Akins v.
Kenney, 410 F.3d 451, 454 (8th Cir. 2005).
“Resolving whether a petitioner has fairly presented his claim to the state
courts, thus permitting federal review of the matter, is an intrinsically federal issue
that must be determined by the federal courts.” Wyldes v. Hundley, 69 F.3d 247, 251
(8th Cir. 1995). “In order to ‘fairly present’ a claim, ‘a petitioner is required to refer
to a specific federal constitutional right, a particular constitutional provision, a
federal constitutional case, or a state case raising a pertinent federal constitutional
issue.’” Nash v. Russell, 807 F.3d 892, 898 (8th Cir. 2015), cert. denied, 136 S. Ct.
1825 (2016) (quoting Barrett v. Acevedo, 169 F.3d 1155, 1161-62 (8th Cir. 1999)
(en banc)). “This requirement is not met by ‘[p]resenting a claim that is merely
similar to the federal habeas claim.’” Id. (quoting Barrett, 169 F.3d at 1162); McCall
v. Benson, 114 F.3d 754, 757 (8th Cir. 1997) (noting “‘[i]f state courts are to be
given the opportunity to correct alleged violations of prisoners’ federal rights, they
must surely be alerted to the fact that the prisoners are asserting claims under the
United States Constitution’” (quoting Duncan v. Henry, 513 U.S. 364, 365-66, 115
S. Ct. 887, 887, 130 L. Ed. 2d 865 (1995)).
“Ordinarily, a federal court reviewing a state conviction in a 28 U.S.C. § 2254
proceeding may consider only those claims which the petitioner has presented to the
state court in accordance with state procedural rules.” Arnold v. Dormire, 675 F.3d
1082, 1086-87 (8th Cir. 2012) (internal citations and quotations marks omitted).
“The Nebraska Postconviction Act, Neb. Rev. Stat. § 29-3001 et seq. is available to
a defendant to show that his or her conviction was obtained in violation of his or her
constitutional rights,” however, “the need for finality in the criminal process requires
that a defendant bring all claims for relief at the first opportunity.” State v. Sims, 277
Neb. 192, 198, 761 N.W.2d 527, 533 (2009). Under Nebraska law, “on
postconviction relief, a defendant cannot secure review of issues which were or
could have been litigated on direct appeal.” State v. Bazer, 276 Neb. 7, 17, 751
N.W.2d 619, 627 (2008).
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Federal courts generally will not review claims that a state court has refused
to consider because of the petitioner’s failure to satisfy a state procedural
requirement. Hunt v. Houston, 563 F.3d 695, 703 (8th Cir. 2009); see Johnson v.
Lee, ___ U.S. ____, ____, 136 S. Ct. 1802, 1804, 195 L. Ed. 2d 92 (2016) (per
curiam). This rule applies only if the state decision is based on independent grounds
and is adequate to support the judgment. Hunt, 563 F.3d at 703. State rules count as
“adequate” if they are “firmly established and regularly followed.” Johnson, ___
U.S. at ____, 136 S. Ct. at 1804 (quoting Walker v. Martin, 562 U.S. 307, 316, 131
S. Ct. 1120, 179 L. Ed. 2d 62 (2011) (internal quotation marks omitted). A rule that
requires criminal defendants to raise available claims on direct appeal and bars, as
procedurally defaulted, a claim raised for the first time on state collateral review if
the defendant could have raised it earlier on direct appeal is adequate because it is
“longstanding, oft-cited, and shared by habeas courts across the Nation.” Id. at ___,
136 S. Ct. at 1803 (noting that all states apply the rule).
“The doctrine barring procedurally defaulted claims from being heard is not
without exceptions—[a] prisoner may obtain federal review of a defaulted claim by
showing cause for the default and prejudice from a violation of federal law.” Trevino
v. Thaler, 569 U.S. 413, 421, 133 S. Ct. 1911, 185 L. Ed. 2d 1044 (2013) (quoting
Martinez v. Ryan, 566 U.S. 1, 10, 132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012)). Also,
a credible showing of actual innocence may allow a prisoner to pursue his
constitutional claims on the merits notwithstanding the existence of a procedural bar
to relief. McQuiggin v. Perkins, 569 U.S. 383, 392, 133 S. Ct. 1924, 185 L. Ed. 2d
1019 (2013).
To invoke the actual innocence exception, a petitioner “must show that in light
of all the evidence, ‘it is more likely than not that no reasonable juror would have
found petitioner guilty beyond a reasonable doubt.’” Jennings v. United States, 696
F.3d 759, 764-65 (8th Cir. 2012) (quoting Schlup v. Delo, 513 U.S. 298, 327, 115 S.
Ct. 851, 130 L. Ed. 2d 808 (1995)). “‘[A]ctual innocence’ means factual innocence,

16

not mere legal insufficiency.” Id. (quoting Bousley v. United States, 523 U.S. 614,
623, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998)).
IV. DISCUSSION
A. Claim One
Alarcon-Chavez claims he was denied his right to due process under the 5th,
6th, and 14th Amendments because the trial court erred in rejecting his proposed
jury instruction that the State must prove beyond a reasonable doubt that the
intentional killing was not the result of a sudden quarrel and in failing to find the
entire step instruction was an incorrect statement of law. The jury was given the
standard step instruction defining the elements of first degree murder, second degree
murder, and manslaughter, in that order.
In Alarcon-Chavez’s direct appeal brief, he argued that, under State v. Smith,
282 Neb. 720, 806 N.W.2d 383 (2011), his murder conviction must be reversed
because the jury instruction on manslaughter did not require the State to prove that
the killing was not the result of a sudden quarrel, which violated the due process
clauses of the United States and Nebraska Constitutions. (Filing No. 10-2 at
CM/ECF pp. 38-42.)
In addressing this claim, the Nebraska Supreme Court reasoned and
determined as follows:
In Smith, we found a jury instruction erroneous because it required the
jury to convict on second degree murder if it found the killing was
intentional and because the instruction did not permit the jury to
consider the alternative possibility that the killing was intentional but
provoked by a sudden quarrel. The jury instruction here is substantially
similar to the one given in Smith.

17

Despite Alarcon-Chavez’[s] contentions, this is not a structural error
requiring automatic reversal. In Smith, we classified the error as trial
error and noted:
Before an error in the giving of jury instructions can be
considered as a ground for reversal of a conviction, it must
be considered prejudicial to the rights of the defendant.
The appellant has the burden to show that the questioned
instruction was prejudicial or otherwise adversely affected
a substantial right of the appellant. [Smith, 282 Neb. at
734-35, 806 N.W.2d at 394.]
We concluded in Smith that the defendant failed to meet his burden
because the evidence was insufficient for a jury to reasonably conclude
that provocation existed so as to justify an instruction on sudden quarrel
manslaughter.
We reach the same conclusion here, although for a slightly different
reason. The jury was instructed that it could return one of several
verdicts: guilty of first degree murder, guilty of second degree murder,
guilty of manslaughter, or not guilty. From these, the jury convicted
Alarcon-Chavez of first degree murder.
We have held that a defendant convicted of first degree murder under a
step instruction cannot be prejudiced by any error in the instructions on
second degree murder or manslaughter because under the step
instruction, the jury would not have reached those levels of homicide.
[See State v. Canbaz, 270 Neb. 559, 705 N.W.2d 221 (2005). See, also,
State v. Benzel, 269 Neb. 1, 689 N.W.2d 852 (2004).] And other courts
have also concluded that when a jury is instructed on first and second
degree murder and the defendant is found guilty of first degree murder,
any error in the instruction for manslaughter or any improper failure to
instruct the jury on manslaughter does not require reversal. [See, State
v. Soto, 162 N.H. 708, 34 A.3d 738 (2011); State v. Yoh, 180 Vt. 317,
910 A.2d 853 (2006); State v. Williams, 977 S.W.2d 101 (Tenn. 1998);
People v. Mullins, 188 Colo. 23, 532 P.2d 733 (1975); McNeal v. State,
67 So. 3d 407 (Fla. App. 2011), review denied 77 So. 3d 1254 (Fla.
2011); State v. Barnes, 740 S.W.2d 340 (Mo. App. 1987).]

18

Here, the jury considered how Villarreal’s death occurred and
concluded Alarcon-Chavez killed her purposely and with deliberate and
premeditated malice. In so concluding, the jury necessarily considered
and rejected that the killing was the result of provocation and was
therefore without malice. The jury found the evidence met the elements
of first degree murder. Under these circumstances where the jury found
that premeditation, intent, and malice existed beyond a reasonable
doubt, Alarcon-Chavez was not prejudiced and his substantial rights
were not affected by the manslaughter instruction.
Alarcon-Chavez, 284 Neb. at 334-35, 821 N.W.2d at 368-69. (Filing No. 10-13 at
CM/ECF pp. 11-12.)
The formulation of jury instructions primarily concerns the application and
interpretation of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct.
475, 116 L. Ed. 2d 385 (1991) (stating that a federal habeas court is not to
“reexamine state-court determinations on state-law questions”). A finding that a jury
instruction is permissible under state law, however, does not determine whether due
process has been violated under federal law. See id. at 68, 112 S. Ct. 475; Seiler v.
Thalacker, 101 F.3d 536, 539 (8th Cir. 1996).
Due process requires a prosecutor to prove beyond a reasonable doubt every
fact necessary to constitute the crime charged. In re Winship, 397 U.S. 358, 365, 90
S. Ct. 1068, 25 L. Ed. 2d. 368 (1970); State v. Hinrichsen, 292 Neb. 611, 625, 877
N.W.2d 211, 222 (2016) (noting that the due process requirements of Nebraska’s
Constitution are similar to those of the federal Constitution). “The State is foreclosed
from shifting the burden of proof to the defendant only ‘when an affirmative defense
does negate an element of the crime.’” Smith v. United States, 568 U.S. 106, 110,
133 S. Ct. 714, 184 L. Ed. 2d 570 (2013) (quoting Martin v. Ohio, 480 U.S. 228,
237, 107 S. Ct. 1098, 94 L. Ed. 2d 267 (1987) (Powell, J., dissenting)). “Where
instead it ‘excuse[s] conduct that would otherwise be punishable,’ but ‘does not
controvert any of the elements of the offense itself,’ the Government has no

19

constitutional duty to overcome the defense beyond a reasonable doubt.” Id. (quoting
Dixon v. United States, 548 U.S. 1, 6, 126 S. Ct. 2437, 165 L. Ed. 2d 299 (2006)).
“[I]n a challenge to a state criminal conviction brought under 28 U.S.C. §
2254—if the settled procedural prerequisites for such a claim have otherwise been
satisfied—the applicant is entitled to habeas corpus relief if it is found that upon the
record evidence adduced at the trial no rational trier of fact could have found proof
of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324, 99 S.
Ct. 2781, 61 L. Ed. 2d 560 (1979); see Nash, 807 F.3d at 897 (quoting Jackson, 443
U.S. at 324, 99 S. Ct. at 2791-92). In conducting the sufficiency-of-evidence inquiry,
the reviewing court must “give[ ] full play to the responsibility of the trier of fact
fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319,
99 S. Ct. at 2789. Further, the court must evaluate the record evidence “with explicit
reference to the substantive elements of the criminal offense as defined by state law.”
Id. at 324 n.16, 99 S. Ct. at 2792 n.16.
“[F]irst degree murder in Nebraska occurs when a person kills another
purposely and with deliberate and premeditated malice.” Hinrichsen, 292 Neb. at
627, 877 N.W.2d at 223. Due process is met as long as the State has to prove beyond
a reasonable doubt all of those enumerated elements: a killing, done purposely, with
deliberate and premeditated malice. Id.; see Patterson v. New York, 432 U.S. 197,
206, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977). The United States Supreme Court has
not adopted “as a constitutional imperative . . . that a State must disprove beyond a
reasonable doubt every fact constituting any and all affirmative defenses related to
the culpability of an accused.” Patterson, 432 U.S. at 210, 97 S. Ct. at 2327.
Under Nebraska law, the existence of a sudden quarrel “is the converse of the
enumerated elements of first degree murder.” Hinrichsen, 292 Neb. at 634, 877
N.W.2d at 227. Because “lack of sudden quarrel is not a statutory element of first
degree murder in Nebraska . . . an explicit jury instruction advising that the State
must prove lack of sudden quarrel provocation beyond a reasonable doubt is not
20

required in order to comport with the dictates of due process.” Id. at 632-33, 877
N.W.2d at 226. “Instead, the question is whether the jury instructions given, viewed
as a whole, adequately informed the jury that the State had the burden to prove lack
of sudden provocation beyond a reasonable doubt in order to convict [the defendant]
of first degree murder.” Id. at 633, 877 N.W.2d at 226. In making a finding beyond
a reasonable doubt that a defendant acted with deliberate and premeditated malice,
the jury necessarily simultaneously finds beyond a reasonable doubt that there was
no sudden quarrel provocation, i.e., that the defendant did not act without due
deliberation and reflection. Id. at 633, 877 N.W.2d at 227 (noting “[i]t is logically
impossible to both deliberate and not deliberate at the same time”); see also AlarconChavez, 284 Neb. at 334-35, 821 N.W.2d at 368-69 (in concluding that the defendant
killed the victim purposely and with deliberate and premeditated malice, the jury
necessarily considered and rejected that the killing was the result of provocation and
was therefore without malice). As the Nebraska Supreme Court held in AlarconChavez’s direct appeal, where a jury finds beyond a reasonable doubt that
premeditation, intent, and malice exist, the defendant is not prejudiced by an error
in a step instruction. Alarcon-Chavez, 284 Neb. at 334-35, 821 N.W.2d at 368-69.
Habeas petitioners “are not entitled to habeas relief based on trial error unless
they can establish that the error resulted in ‘actual prejudice.’” Brecht v.
Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993). The
state bears the burden of persuasion on the question of prejudice. Fry v. Pliler, 551
U.S. 112, 121 n.3, 127 S. Ct. 2321, 168 L. Ed. 2d 16 (2007). To assess the prejudicial
impact of trial-type federal constitutional error in a state-court criminal trial, federal
courts determine whether the trial error “had substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht, 507 U.S. at 638, 113 S. Ct. at
1722; see Fry, 551 U.S. at 121, 127 S. Ct. at 2328.
The commission of a constitutional error at trial alone does not entitle a
defendant to automatic reversal; “[i]nstead ‘most constitutional errors can be
harmless.’” Washington v. Recuenco, 548 U.S. 212, 218, 126 S. Ct. 2546, 165 L. Ed.
2d 466 (2006) (quoting Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 144
21

L. Ed. 2d 35 (1999)). Only in a narrow category of cases—those involving
“structural defects” that deprive defendants of basic protections and render a
criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or
innocence—will an error always invalidate a conviction, even without a showing of
prejudice. See United States v. Gonzalez-Lopez, 548 U.S. 140, 148 n.4, 126 S. Ct.
2557, 165 L. Ed. 2d 409 (2006) (explaining trial error/structural defect dichotomy
and finding structural error in denial of counsel of choice); Recuenco, 548 U.S. at
218, 126 S. Ct. at 2551 (“Only in rare cases has [the Supreme Court] held that an
error is structural, and thus requires automatic reversal”).1 Structural defects “‘defy
analysis by “harmless-error” standards’ because they ‘affec[t] the framework within
which the trial proceeds,’ and are not ‘simply an error in the trial process itself.’”
Gonzalez-Lopez, 548 U.S. at 148-49 & n.4, 126 S. Ct. at 2564 & n.4 (quoting Arizona
v. Fulminante, 499 U.S. 279, 309-10, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)).
Alarcon-Chavez argues that the erroneous jury instructions amounted to
structural error and that he was denied due process because, had the jury been
properly instructed, the jury could have found him guilty of manslaughter. (Filing
1

Structural error has been found in the following circumstances: a defective
reasonable-doubt instruction, Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct.
2078, 124 L. Ed. 2d 182 (1993); conflicted counsel, Mickens v. Taylor, 535 U.S.
162, 166, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002); appointment of an interested
prosecutor, Young v. United States ex rel. Vuitton et Fils, S.A., 481 U.S. 787, 909,
107 S. Ct. 2124, 95 L. Ed. 2d 740 (1987) (plurality opinion); racial discrimination
in selection of a grand jury, Vasquez v. Hillery, 474 U.S. 254, 264, 106 S. Ct. 617,
88 L. Ed. 2d 598 (1986); denial of a public trial, Waller v. Georgia, 467 U.S. 39, 49,
104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984); failure of counsel to subject the
government’s case to meaningful adversarial testing, United States v. Cronic, 466
U.S. 648, 659, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984); denial of representation at
trial, McKaskle v. Wiggins, 465 U.S. 168, 174-76, 104 S. Ct. 944, 79 L. Ed. 2d 122
(1984); counsel operating under an actual conflict of interest, Cuyler v. Sullivan, 446
U.S. 335, 344, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980); denial of counsel, Gideon
v. Wainwright, 372 U.S. 335, 344, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); and a trial
by a biased judge, Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927).

22

No. 1 at CM/ECF p. 27.) Unfortunately for Alarcon-Chavez, that contention is
unavailing under Nebraska law. Subsequent to Smith, the Nebraska Supreme Court
rejected the argument that “because a jury in a second degree murder case must be
specifically instructed that the State has to prove lack of sudden quarrel provocation
in order to prove the murder, a jury in a first degree murder case must also be
specifically instructed that the State has to prove lack of sudden quarrel provocation
in order to prove the murder.” Hinrichsen, 292 Neb. at 625, 877 N.W.2d at 221. It
found that “when the jury found premeditated and deliberate malice beyond a
reasonable doubt, it simultaneously found no sudden quarrel provocation beyond a
reasonable doubt” and concluded that the defendant therein had received due
process. Id. at 613; 877 N.W.2d at 221.
Alarcon-Chavez’s claim might have some merit if there were any evidentiary
basis for finding that the salient issue was the distinction between second-degree and
manslaughter, as it was in Smith.2 See Robinson v. Sabatka-Rine, No. 8:13CV197,
2016 WL 5254825, at *13 (D. Neb. Sept. 22, 2016) (citing Hinrichsen, 292 Neb. at
621-22, 877 N.W.2d at 220). Here, the jury’s finding of deliberate and premeditated
murder, a finding that is supported by the evidence, means the jury “necessarily
considered and rejected that the killing was the result of provocation and was
therefore without malice.” Id. (quoting Hinrichsen, 292 Neb. at 636, 877 N.W.2d at
228). Like the defendant in Hinrichsen, Alarcon-Chavez was afforded due process
in that
the jury was not in any way prevented from considering the crucial
issue. When it decided beyond a reasonable doubt that [Alarcon2

The Nebraska Supreme Court later clarified its holding in Smith, stating:

where there is evidence that (1) a killing occurred intentionally without
premeditation and (2) the defendant was acting under the provocation
of a sudden quarrel, a jury must be given the option of convicting of
either second degree murder or voluntary manslaughter depending
upon its resolution of the fact issue regarding provocation.
State v. Smith, 284 Neb. 636, 656, 822 N.W.2d 401, 417 (2012) (Smith II).
23

Chavez] killed with deliberate and premeditated malice, it necessarily
also decided beyond a reasonable doubt that the converse was true—
i.e., his actions were not the result of a sudden quarrel, done “rashly,
without due deliberation and reflection.” Instead of preventing the jury
from considering the crucial issue, the jury instructions here directly
presented that issue to the jury for its consideration. And the
instructions at all times placed the burden of proof on the State.
See Hinrichsen, 292 Neb. at 636, 877 N.W.2d at 228 (noting also that the first degree
murder step instruction is very different from the second degree murder step
instruction that the Smith court found to be erroneous—the key distinction being that
in Smith, the jury was prevented from considering the crucial issue—whether the
killing, although intentional, was the result of a sudden quarrel); see also SabatkaRine, 2016 WL 5254825, at *13. The burden of proving whether Alarcon-Chavez
acted with deliberate and premeditated malice, and thus did not act under a sudden
provocation, rested on the State. See Sabatka-Rine, 2016 WL 5254825, at *13. There
was no shifting of the burden to Alarcon-Chavez. See id.
Any error in the step instructions vis-a-vis second degree murder and
manslaughter would be harmless. See id. at *14. As the Nebraska Supreme Court
noted, an erroneous step instruction “is not a structural error requiring automatic
reversal.” Alarcon-Chavez, 284 Neb. at 334, 821 N.W.2d at 368; see also SabatkaRine, 2016 WL 5254825, at *14. “A defendant convicted of first degree murder
under a step instruction cannot be prejudiced by any error in the instructions on
second degree murder or manslaughter because under the step instruction, the jury
would not have reached those levels of homicide.” Sabatka-Rine, 2016 WL
5254825, at *14 (citing Alarcon-Chavez, 284 Neb. at 335, 821 N.W.2d at 368).
The court finds the Nebraska Supreme Court’s decision in this case is not
contrary to, nor did it involve an unreasonable application of, clearly established
federal law. The finding of purposefulness and premeditation are supported by the
evidence, and the Nebraska Supreme Court’s decision likewise cannot be said to be

24

“based on an unreasonable determination of the facts in light of the evidence
presented.” Therefore, Alarcon-Chavez is entitled to no relief on Claim One.
B. Claim Two
Alarcon-Chavez claims he was denied his right to be free from unreasonable
searches and seizures under the 4th and 14th Amendments because the trial court
erred in overruling his amended motion to suppress based on an unauthorized seizure
of his vehicle without a warrant. The Supreme Court has held that Fourth
Amendment claims are not cognizable in a federal habeas action unless the petitioner
did not receive a full and fair opportunity to litigate the Fourth Amendment claim in
the state courts. Stone v. Powell, 428 U.S. 465, 494, 96 S. Ct. 3037, 49 L. Ed. 2d
1067 (1976); see also Willett v. Lockhart, 37 F.3d 1265, 1273 (8th Cir. 1994).
Because the record shows that the Nebraska courts provided Alarcon-Chavez with a
full and fair hearing on the matter, and there is absolutely no evidence to establish
or reason to believe that there was an unconscionable breakdown in the state-court
mechanism for considering Alarcon-Chavez’s Fourth Amendment claim, Claim
Two is not cognizable.
C. Claim Three
Alarcon-Chavez claims he was denied his right to a fair trial under the 5th,
6th, and 14th Amendments because of the prosecutor’s inflammatory remarks made
during his closing and rebuttal arguments.
The test for prosecutorial misconduct has two parts: “(1) the prosecutor’s
remarks or conduct must in fact have been improper, and (2) such remarks or conduct
must have prejudicially affected the defendant’s substantial rights so as to deprive
the defendant of a fair trial.” United States v. Hernandez, 779 F.2d 456, 458 (8th Cir.
1985); Stringer v. Hedgepeth, 280 F.3d 826, 830 (8th Cir. 2002) (habeas petitioner
has burden of establishing that the outcome of his trial probably would have been
different but for the prosecutor’s misconduct).
25

The Nebraska Supreme Court determined that most of the prosecutor’s
comments were not improper, because they were based on the evidence and were
few and isolated in a long closing argument and rebuttal. Alarcon-Chavez, 284 Neb.
at 337-39, 821 N.W.2d at 370-71. (Filing No. 10-13 at CM/ECF pp. 12-14.) In
addition, the Nebraska Supreme Court made an express finding that “any resulting
prejudice to Alarcon-Chavez was not of such a nature that to leave it uncorrected
would result in damage to the integrity, reputation, and fairness of the judicial
process.” Alarcon-Chavez, 284 Neb. at 339, 821 N.W.2d at 371. (Filing No. 10-13
at CM/ECF p. 14.)
The court agrees with the Nebraska Supreme Court’s conclusions that many
of the prosecutor’s comments merely addressed inferences the prosecutor was asking
the jury to draw from the evidence, and that any improper comments did not affect
the outcome of the trial as the comments were fleeting and the evidence of guilt was
overwhelming. More importantly, Alarcon-Chavez has failed to show that the
Nebraska Supreme Court’s conclusion 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), or “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). As such, Claim Three is denied.
E. Claim Four
Next, Alarcon-Chavez asserts that he was denied his rights to due process and
to effective assistance of counsel under the 5th, 6th, and 14th Amendments because
trial counsel failed to (1) verify, ensure, and/or preserve the making of an official
record of the voir dire proceeding, (2) raise a challenge under Batson, when the State
struck a Hispanic juror from the venire; (3) communicate plea offers; (4) speak with
witnesses provided by Alarcon-Chavez; (5) advise Alarcon-Chavez of his right to
independently test DNA, (6) advise Alarcon-Chavez of his right to depose the State’s

26

expert witnesses, and (7) object during trial to the State’s questioning of key
witnesses and offers of exhibits.
1. The Especially Deferential Strickland Standard
When a petitioner asserts an ineffective assistance of counsel claim, the twopronged standard of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), must be applied. The standard is very hard for offenders to satisfy.
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, 104 S. Ct. at 2064. 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, 104 S. Ct. 2064-65. 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, 104 S. Ct.
at 2066. 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, 104 S. Ct. at 2068. 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, 104 S. Ct. at 2066.
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, 129 S. Ct. 1411, 173 L. Ed.
2d 251 (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

27

“substantially higher threshold” for a federal habeas petitioner to overcome. Id. at
123, 129 S. Ct. 1411. As stated in Knowles:
The question is not whether a federal court believes the state court’s
determination under the Strickland standard was 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. (internal quotation marks and citations omitted).
In habeas corpus proceedings, federal courts “are bound by the state court’s
factual finding that counsel made a strategic choice” regarding trial decisions. Smith
v. Jones, 923 F.2d 588, 590 (8th Cir. 1991) (citing 28 U.S.C. § 2254(d); Brown v.
Lockhart, 781 F.2d 654, 658 (8th Cir. 1986)). The factual findings of the Nebraska
Supreme Court are binding in this court unless the petitioner can establish that these
findings were erroneous or not supported by the record. See 28 U.S.C. 2254(d);
Sumner v. Mata, 449 U.S. 539, 550, 101 S. Ct. 764, 66 L. Ed. 2d 722 (1981); Graham
v. Solem, 728 F.2d 1533, 1540-41 (8th Cir. 1984); cert. denied, 469 U.S. 842 (1984).
2. Discussion
As a general matter, the court observes that, before the Nebraska Supreme
Court addressed the below ineffective assistance of counsel claims, it properly set
forth the Strickland standards. Alarcon-Chavez, 295 Neb. at 1021-22, 893 N.W.2d
at 713-14. (Filing No. 10-22 at CM/ECF pp. 7-8.)

28

a. Failure to Record Voir Dire
Alarcon-Chavez claims that trial counsel was ineffective for failing to ensure
that voir dire was recorded because it deprived him of the ability to make a Batson
claim. In addressing this claim, the Nebraska Supreme Court reasoned and
determined as follows:
At the evidentiary hearing, one of Alarcon-Chavez’[s] attorneys
testified that he explained the voir dire process to Alarcon-Chavez,
including what would happen when the jury came in, the number of
strikes per side, when a strike for cause could be made, and when
peremptory strikes could be used. This defense attorney did not
remember if there was any conversation about whether to record voir
dire, or whether Alarcon-Chavez specifically waived the recording of
voir dire.
In its order denying postconviction relief, the district court noted there
was no evidence that any party, or the court, requested voir dire be
recorded. It then quoted from State v. Jones, [246 Neb. 673, 675, 522
N.W.2d 414, 415 (1994)][,] a case in which we held our court rules
require the transcription of voir dire only “when requested by counsel,
any party, or the court.” In Jones, we reasoned that because recording
voir dire is not made mandatory by the court rules, “the failure to
require recordation cannot be said, ipso facto, to constitute negligence
or inadequacy of counsel.” [Id. at 675, 522 N.W.2d at 415-16.]
Neb. Ct. R. § 2-105(A)(2) (rev. 2010) states:
Upon the request of the court or of any party, either
through counsel or pro se, the court reporting personnel
shall make or have made a verbatim record of anything
and everything said or done by anyone in the course of trial
or any other proceeding, including, but not limited to . . .
the voir dire examination. . . .
Neither Jones nor § 2-105(A)(2) provide that a verbatim record of voir
dire is mandatory. On this record, we agree with the district court that
Alarcon-Chavez failed to prove his trial counsels’ performance was
29

deficient, and he failed to prove any prejudice from the fact that voir
dire was not recorded. The trial court correctly denied relief on this
claim.
Alarcon-Chavez, 295 Neb. at 1023, 893 N.W.2d at 715. (Filing No. 10-22 at
CM/ECF p. 8.)
To show trial counsel’s performance was deficient under Strickland on this
claim, Alarcon-Chavez would have to show that recording voir dire is mandatory
under state law. As the Nebraska Supreme Court stated, Nebraska court rules do not
mandate a verbatim recording of voir dire, Neb. Ct. R. § 2-105(A)(2), and Nebraska
state courts have concluded that “the failure to require recordation cannot be said,
ipso facto, to constitute negligence or inadequacy of counsel,” Jones, 246 Neb. at
675, 522 N.W.2d at 415-16. Alarcon-Chavez, 295 Neb. at 1023, 893 N.W.2d at 715.
(Filing No. 10-22 at CM/ECF p. 8.) Neither the Constitution nor federal law requires
that voir dire in state court proceedings be transcribed or recorded. Assuming that
trial counsel performed deficiently by failing to have the voir dire portion of trial
transcribed, there was no prejudice to Alarcon-Chavez as a result. As discussed
below, trial counsel testified at the postconviction hearing that, had the State not
used one of its peremptory strikes on the subject juror, he would have done so,
because one of the juror’s comments suggested he was someone who wanted to be
on the jury in order to return a conviction. Because trial counsel chose not to raise a
Batson challenge as a matter of trial strategy, the lack of a record of the voir dire is
inconsequential. Alarcon-Chavez has failed to demonstrate that the Nebraska
Supreme Court’s rejection of this claim was contrary to, or an unreasonable
application of, federal law, and therefore, Alarcon-Chavez is not entitled to habeas
corpus relief under 28 U.S.C. § 2254(d).
b. Failure to Raise Batson Challenge
Alarcon-Chavez asserts that trial counsel was ineffective for failing to raise a
Batson challenge after the State used a peremptory strike to remove a Hispanic juror

30

from the panel. In striking the juror, the State voluntarily made a record of its reason
for the strike even though no Batson challenge had been raised by Alarcon-Chavez.
The Nebraska Supreme Court held the following on this issue:
During the evidentiary hearing, one of Alarcon-Chavez’[s] trial
attorneys testified he did not raise a Batson challenge because he, too,
wanted the juror removed from the panel. Trial counsel explained that
the juror was a criminal justice major who commented that it would be
“an honor” to serve as a juror. Trial counsel thought the juror’s
comment suggested he was someone who wanted to be on the jury in
order to return a conviction. Trial counsel testified that if the State had
not used one of its peremptory strikes on that juror, he would have done
so.
When reviewing a claim of ineffective assistance of counsel, an
appellate court will not second-guess reasonable strategic decisions by
counsel. [State v. Branch, 290 Neb. 523, 860 N.W.2d 712 (2015).]
Defense counsel’s strategic decision not to raise a Batson challenge was
reasonable and does not support a finding of ineffectiveness.
Alarcon-Chavez, 295 Neb. at 1024, 893 N.W.2d at 715. (Filing No. 10-22 at
CM/ECF p. 9.)
Applying the deferential standards required by both Strickland and by §
2254(d), the court finds nothing to indicate that the Nebraska Supreme Court’s ruling
was “contrary to, or involved an unreasonable application of, clearly established
Federal law.” Clearly, trial counsel’s decision not to raise a Batson challenge was a
matter of trial strategy; the record demonstrates that trial counsel would have used a
peremptory strike to remove the juror had the State not done so based on trial
counsel’s assessment that the juror would not have been a favorable juror to the
defense. Thus, Alarcon-Chavez is entitled to no relief on this claim.

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c. Failure to Communicate Plea Offers
Alarcon-Chavez next asserts that trial counsel was ineffective for failing to
timely communicate plea offers.
In addressing this claim, the Nebraska Supreme Court set forth the relevant
law:
The United States Supreme Court has established that the right to
effective assistance of counsel extends to the negotiation of a plea
bargain. [See Missouri v. Frye, 566 U.S. 134,132 S. Ct. 1399, 182 L.
Ed. 2d 379 (2012).] And claims of ineffective assistance of counsel in
the plea bargain context are governed by the two-part test set forth in
Strickland v. Washington. [See id.]
Alarcon-Chavez, 295 Neb. at 1024, 893 N.W.2d at 716. (Filing No. 10-22 at
CM/ECF p. 9.)
Turning to the facts of the case, the Nebraska Supreme Court then explained:
According to Alarcon-Chavez, the State offered a plea deal which his
attorneys did not convey to him until the night before trial. AlarconChavez testified that he accepted the offer once conveyed, but when his
attorneys communicated his acceptance to the State the next morning,
the plea offer had been withdrawn.
At the evidentiary hearing, one of Alarcon-Chavez’[s] trial attorneys
testified he met with Alarcon-Chavez the night before trial and told him
that they were looking at a very difficult case to win based on selfdefense and that Alarcon-Chavez likely would be convicted. Trial
counsel testified he told Alarcon-Chavez it might be advantageous to
try and get a last-minute plea agreement for something that did not carry
a mandatory life sentence. Trial counsel asked Alarcon-Chavez
whether he would be willing to plead to second degree murder, use of
a weapon, witness tampering, and making terroristic threats. According
to trial counsel, Alarcon-Chavez agreed and authorized him to contact
32

the State. Trial counsel contacted the prosecutor directly after this
conversation with Alarcon-Chavez and communicated the plea offer.
The prosecutor refused the plea offer and would not make a counter
offer. Trial counsel relayed this information to Alarcon-Chavez the next
morning. Trial counsel’s version of events was confirmed by another
of Alarcon-Chavez’[s] trial attorneys, who testified in addition that she
had approached the prosecution on several occasions during the
pendency of the case requesting a plea offer, but each time, the
prosecutor had refused.
In its order, the court made factual findings consistent with the
testimony of Alarcon-Chavez’[s] trial attorneys, and the court
concluded Alarcon-Chavez failed to prove his attorneys were
ineffective for failing to timely communicate plea offers. In an
evidentiary hearing for postconviction relief, the postconviction trial
judge, as the trier of fact, resolves conflicts in evidence and questions
of fact, including witness credibility and the weight to be given a
witness’ testimony. [State v. Branch, 290 Neb. 523, 860 N.W.2d 712
(2015).] We find no clear error in the district court’s factual findings,
and we agree that Alarcon-Chavez failed to prove his trial attorneys
were ineffective for failing to communicate plea offers.
Alarcon-Chavez, 295 Neb. at 1024-26, 893 N.W.2d at 715-16. (Filing No. 10-22 at
CM/ECF pp. 9-10.)
The state district court’s findings of fact, as adopted by the Nebraska Supreme
Court, and the Nebraska Supreme Court’s conclusions of law, are entitled to
deference. Those findings establish that the State made no plea offers to AlarconChavez, and thus, there were no plea offers to communicate to him. Trial counsel
cannot be ineffective for failing to communicate plea offers that do not exist. More
importantly, Alarcon-Chavez has not shown that the Nebraska Supreme 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), or that the court reached “a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the State

33

court proceeding,” 28 U.S.C. § 2254(d)(2). This claim has no merit, and a grant of a
writ of habeas corpus is not warranted on this issue.
d. Failure to Contact Witnesses
Alarcon-Chavez also claims that trial counsel was ineffective for failing to
contact or call at trial witnesses identified by Alarcon-Chavez.
The background underlying this claim is set forth in the Nebraska Supreme
Court’s opinion:
At his first meeting with defense counsel, Alarcon-Chavez provided
counsel the names of four witnesses he wanted to testify on his behalf.
Alarcon-Chavez claims all four witnesses would have testified about
the victim’s threatening and blackmailing him and would have
supported his claim of self-defense. . . .
At the evidentiary hearing, Alarcon-Chavez’[s] attorneys testified that
only one of the potential witnesses could be located. With respect to
that witness, defense counsel concluded that based on the witness’
reports to police, he would not have been a helpful witness.
Additionally, after meeting with that witness, Alarcon-Chavez’[s]
counsel concluded he was unhelpful and bordering on hostile.
Counsel further testified, with respect to all four witnesses identified by
Alarcon-Chavez:
All of this information from these witnesses, if it came out,
and I believed it would have—would not have helped
[Alarcon-Chavez’s] case. It would have shown that there
was a prior relationship that involved threats and violence
against each other, and that’s the last thing I wanted the
jury to hear was prior incidents of violent behavior toward
this victim.
In its order, the district court made findings consistent with the
testimony of Alarcon-Chavez’[s] trial attorneys and concluded
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Alarcon-Chavez had failed to meet his burden of proof on this claim of
ineffective assistance of counsel.
Alarcon-Chavez, 295 Neb. at 1026, 893 N.W.2d at 716-17. (Filing No. 10-22 at
CM/ECF p. 10.)
The Nebraska Supreme Court found no clear error in the trial court’s findings
and agreed with the trial court’s conclusion. Alarcon-Chavez, 295 Neb. at 1026, 893
N.W.2d at 717. (Filing No. 10-22 at CM/ECF p. 10.) The court reasoned:
The decision to call, or not to call, a particular witness, made by counsel
as a matter of trial strategy, even if that choice proves unproductive,
will not, without more, sustain a finding of ineffectiveness of counsel.
[State v. Thomas, 278 Neb. 248, 769 N.W.2d 357 (2009).] A defense
attorney has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.
[State v. Ellefson, 231 Neb. 120, 435 N.W.2d 653 (1989).] A reasonable
strategic decision to present particular evidence, or not to present
particular evidence, will not, without more, sustain a finding of
ineffective assistance of counsel. We do not second-guess strategic
decisions made by trial counsel, so long as those decisions are
reasonable. [State v. Canbaz, 270 Neb. 559, 705 N.W.2d 221 (2005).]
Here, trial counsels’ decision not to pursue or call the four witnesses
was reasonable, and counsel did not perform deficiently.
Alarcon-Chavez, 295 Neb. at 1026-27, 893 N.W.2d at 717. (Filing No. 10-22 at
CM/ECF pp. 10-11.)
Alarcon-Chavez has failed to argue or demonstrate that the factual findings of
the state court were either erroneous or lacked fair support in the record. The
Nebraska Supreme Court found that Alarcon-Chavez’s trial counsel made a strategic
decision not to call the individuals provided by Alarcon-Chavez as witnesses based
on counsel’s assessment that their testimony would not have helped AlarconChavez’s case, and, in fact, would have hurt his case. In the absence of evidence
suggesting this factual finding is erroneous or lacks support in the record, the court

35

is bound by the factual finding that counsel’s decision not to call these witnesses was
strategic. See Smith, 923 F.2d at 590.
Trial counsel’s strategic choice is entitled to great deference. See id. at 590.
As mentioned earlier, to prevail on a claim of ineffective assistance of counsel,
Alarcon-Chavez must show his counsel’s actions were unreasonable and he suffered
prejudice as a result of counsel’s deficiencies. Strickland, 466 U.S. at 691-92.
Having considered the matter, the court concludes that trial counsel’s decision not
to call as trial witnesses the individuals Alarcon-Chavez provided, after determining
their testimony would have shown that the prior relationship between AlarconChavez and Villarreal involved threats and violence against each other, was
strategic. Furthermore, the court notes that Alarcon-Chavez fails to indicate how he
was prejudiced by trial counsel’s decision. Given the fact that the intended testimony
would have shown that the prior relationship between Alarcon-Chavez and Villarreal
involved threats and violence against each other—coupled with the other evidence
presented at the trial—makes it unlikely that the outcome of Alarcon-Chavez’s trial
would have changed. Alarcon-Chavez is not entitled to habeas relief on this claim.
e. Failure to Advise Petitioner of his Right to Independently Test DNA
Alarcon-Chavez argues that trial counsel was ineffective for failing to
independently test DNA evidence and for failing to advise him of his right to have
DNA testing performed.
The Nebraska Supreme Court recounted the factual background and the state
district court’s resolution of this claim:
When asked what DNA evidence Alarcon-Chavez wanted his lawyers
to find, Alarcon-Chavez responded:
Well, I don’t know how to explain it. Before [the
prosecution] said that I was the only one in the apartment,
true, and I testified that I was the one that stabbed her. So
36

what I think is [my lawyers] should have informed me
about the [sic] not doing the DNA test.
At the evidentiary hearing, one of Alarcon-Chavez’[s] trial attorneys
testified that he did not think DNA testing would have been helpful to
the defense. Police officers found Alarcon-Chavez standing over the
victim and holding two knives, and Alarcon-Chavez did not deny
stabbing the victim. The issue at trial was not the identity of the
perpetrator, but whether Alarcon-Chavez had acted in self-defense.
The district court found there was no merit to the claim that counsel
were ineffective for failing to pursue independent testing of the DNA
evidence, reasoning:
[Alarcon-Chavez’s] former attorney testified that DNA
analysis of the knife used would not have furthered [his]
case. [Alarcon-Chavez] wanted to raise the affirmative
defense of self-defense; therefore, no issue of identity
existed. The evidence also revealed when the officers
entered the apartment there were only two people present,
the victim and [Alarcon-Chavez].
Alarcon-Chavez, 295 Neb. at 1027-28, 893 N.W.2d at 717-18. (Filing No. 10-22 at
CM/ECF p. 11.)
Considering this claim on appeal, the Nebraska Supreme Court stated:
We find no error in the district court’s findings on this issue. Defense
counsels’ decision not to conduct independent DNA testing was
reasonable under the circumstances, and counsel did not perform
deficiently for failing to independently test DNA evidence. Nor has
Alarcon-Chavez shown any prejudice from counsels’ failure to advise
him of the right to have DNA testing done.
Alarcon-Chavez, 295 Neb. at 1028, 893 N.W.2d at 718. (Filing No. 10-22 at
CM/ECF p. 11.)

37

Applying the deferential standards required by both Strickland and by §
2254(d), the court finds nothing to indicate that the Nebraska Supreme Court’s ruling
was “contrary to, or involved an unreasonable application of, clearly established
Federal law.” Obtaining DNA testing would have been unproductive to the selfdefense claim. Indeed, there was no reason to believe that DNA testing would have
exonerated Alarcon-Chavez. After all, Alarcon-Chavez did not deny that he stabbed
the victim; instead, he maintained that he did so in self-defense. Trial counsel’s
strategic choice is entitled to great deference. See Smith, 923 F.2d at 590.
Furthermore, the court cannot find that there is a reasonable probability that, but for
counsel’s failure to obtain DNA testing, the result of the trial would have been
different, or that the lack of DNA testing in any way undermined confidence in the
outcome of Alarcon-Chavez’s trial. Thus, Alarcon-Chavez has failed to demonstrate
that his counsel’s alleged errors in refusing to obtain DNA testing and in failing to
inform Alarcon-Chavez of his right to independent DNA testing caused AlarconChavez actual prejudice. Accordingly, Alarcon-Chavez’s request for habeas corpus
relief with respect to this claim is without merit.
f. Failure to Advise Petitioner of his Right to Depose the State’s Expert
Witnesses
Alarcon-Chavez asserts that trial counsel was ineffective for failing to depose
the State’s expert witnesses.
The following background, set forth by the Nebraska Supreme Court, is
relevant to this claim:
Neither [Alarcon-Chavez’s] postconviction motion nor his briefing to
[the Nebraska Supreme Court] identifies which expert witnesses his
attorneys should have deposed, or what such depositions might have
revealed.
One of Alarcon-Chavez’[s] trial attorneys testified that after reviewing
all the police reports, medical reports, hospital records, autopsy records,

38

and the depositions of the police officers involved, he did not see a need
to depose anyone else. The district court concluded Alarcon-Chavez
failed to prove any prejudice as a result of his attorneys’ not deposing
the State’s experts and found this claim of ineffective assistance to be
without merit. It noted evidence showing that Alarcon-Chavez’[s] trial
attorneys hired an independent physician to review the State’s
pathologist’s report and opinion, and the independent physician agreed
with the State’s expert’s opinion regarding the cause and manner of
death.
Alarcon-Chavez, 295 Neb. at 1028, 893 N.W.2d at 718. (Filing No. 10-22 at
CM/ECF p. 12.)
In rejecting this claim on appeal, the Nebraska Supreme Court agreed with the
state district court’s determination that Alarcon-Chavez failed to establish prejudice
as a result of trial counsel’s failure to depose the State’s experts. Alarcon-Chavez,
295 Neb. at 1028-29, 893 N.W.2d at 718. (Filing No. 10-22 at CM/ECF p. 12.)
Alarcon-Chavez has not identified which experts trial counsel should have deposed
or what their depositions would have revealed. He has thus failed to establish that,
but for trial counsel’s conduct, the result of the proceeding would have been
different. Giving the Nebraska courts the deference they are due, Alarcon-Chavez is
not entitled to relief on this claim.
g. Failure to Object During Trial
Alarcon-Chavez claims that trial counsel was ineffective for failing “to object
to the State’s questioning of key witnesses and offers of exhibits during the Trial.”
(Filing No. 1 at CM/ECF p. 61.) Neither Alarcon-Chavez nor Respondent discussed
this claim in their respective briefs submitted in this case. (See generally Filing No.
13 & Filing No. 18.)
As the Nebraska Supreme Court outlined, Alarcon-Chavez identified the
following instances where trial counsel failed to object:

39

During testimony of . . . Pino on direct examination by the Madison
County Attorney, he testified to what Manuel Montalvo was saying to
[Alarcon-Chavez], which was clearly hearsay. There was no objection
made by the counsel for [Alarcon-Chavez]. . . . In addition, counsel for
[Alarcon-Chavez] did not object to “Exhibit 9” . . . which was a picture
of the victim lying on the floor. . . . At another time, . . . Pino was
questioned about and testified to what the victim told him about her
wound and when she received the same, and there was no objection by
counsel for [Alarcon-Chavez]. . . . In another incident during his
testimony, there were multiple questions about what the victim said to
. . . Pino while she was laying [sic] on the floor after the police arrived,
and there were no objections to any of those questions. . . . He testified
to what he saw when he entered the apartment and discussed there being
a child present in the apartment without objection. . . . Pino testified he
saw [Alarcon-Chavez] holding the knives, but was lead [sic] into the
question by the County Attorney asking “and did you see the knives?”
Alarcon-Chavez, 295 Neb. at 1029, 893 N.W.2d at 718-19. (Filing No. 10-22 at
CM/ECF pp. 12-13; see also Filing No. 10-17 at CM/ECF pp. 26-27 (appellate
brief).)
Considering this claim, the Nebraska Supreme Court stated:
The district court concluded Alarcon-Chavez failed to show how any
of the questions or exhibits were objectionable or how he was
prejudiced by the admission of the evidence. The court also found that
although Alarcon-Chavez argued the cumulative effect of these failures
amounted to ineffective assistance, “[n]o proof was made as to what
cumulative effect these alleged failures may have had upon the jury.”
The court found no merit to this claim of ineffective assistance.
We agree with the district court’s determination that Alarcon-Chavez
failed to show prejudice from counsel’s alleged deficient performance.
We therefore conclude this assignment of error is meritless.

40

See Alarcon-Chavez, 295 Neb. at 1029-30, 893 N.W.2d at 719. (Filing No. 10-22 at
CM/ECF p. 13.)
The Nebraska Supreme Court’s determination is plainly entitled to deference.
See, e.g., Hoon v. Iowa, 313 F.3d 1058, 1061-62 (8th Cir. 2002) (reversing federal
district judge’s contrary ruling because under the AEDPA, a federal habeas court
must give substantial deference to the state court’s analysis of the evidence; holding
that state court’s decision that defense counsel’s deficient performance in failing to
object to admission of co-defendant’s confession did not prejudice petitioner in light
of other evidence of petitioner’s guilt, and was not an objectively unreasonable
application of the Strickland federal ineffective assistance of counsel standard, as
required to support habeas relief under AEDPA). The Nebraska Supreme Court’s
decision is not an objectively unreasonable application of federal law and this court
will not (and cannot) second-guess the Nebraska Supreme Court’s opinion. As with
the other ineffective assistance claims, even if the court conducted a de novo review
of this claim, the result would be the same. This claim must therefore be dismissed.
F. Claim Five
Last, Alarcon-Chavez claims that he was denied his rights to due process and
to a fair trial under the 5th, 6th, and 14th Amendments because he could not
understand one of the trial court Spanish interpreters.
The state district court rejected the claim on the merits, and the Nebraska
Supreme Court affirmed the decision but on different grounds—namely that the
claim was procedurally barred. Alarcon-Chavez, 295 Neb. at 1032, 893 N.W.2d at
720. (Filing No. 10-22 at CM/ECF pp. 13-14.) The Nebraska Supreme Court
explained:
A motion for postconviction relief cannot be used to secure review of
issues which were known to the defendant and could have been litigated

41

on direct appeal. [State v. Parnell, 294 Neb. 551, 883 N.W.2d 652
(2016).]
Alarcon-Chavez was aware of any difficulty understanding the
interpreter at the time of his direct appeal and could have raised this
issue on direct appeal, but did not. Nor, in this postconviction action,
has Alarcon-Chavez asserted this claim as one of ineffective assistance
of counsel. His claim that he had trouble understanding one of the
interpreters is procedurally barred, and this assignment of error is
meritless.
Alarcon-Chavez, 295 Neb. at 1032, 893 N.W.2d at 720. (Filing No. 10-22 at
CM/ECF p. 14.)
The Nebraska Supreme Court found that this issue should have been raised on
direct appeal and because it was not raised, it was barred from consideration under
Nebraska law. Because the Nebraska Supreme Court rejected Alarcon-Chavez’s
claim on independent and adequate state procedural grounds, this court is barred
from addressing the post-conviction claim. See Shaddy v. Clarke, 890 F.2d 1016,
1018 (8th Cir. 1989). The post-conviction claims are therefore exhausted by
procedural default and the court cannot reach the merits of these claims unless
Alarcon-Chavez demonstrates cause and prejudice excusing the default. See id.
Alarcon-Chavez has not shown adequate cause or prejudice to excuse the procedural
default. Alarcon-Chavez makes only a conclusory allegation that cause is established
by the failure of his counsel on direct appeal to raise and preserve this issue. (Filing
No. 18 at CM/ECF p. 16.) While ineffective assistance of counsel may constitute
“cause” in some circumstances, “[n]ot just any deficiency in counsel’s performance
will do.” Edwards v. Carpenter, 529 U.S. 446, 451, 120 S. Ct. 1587, 146 L. Ed. 2d
518 (2000). Rather, “the assistance must have been so ineffective as to violate the
United States Constitution. In other words, ineffective assistance of counsel
adequate to establish cause for the procedural default of some other constitutional
claim is itself an independent constitutional claim” which must be presented to the
state courts. Id., 120 S. Ct. at 1591 (citation omitted); see also Tokar v. Bowersox,
198 F.3d 1039, 1051 n.13 (8th Cir. 1999)). Alarcon-Chavez did not raise the claim
42

that direct appeal counsel was ineffective for failing to raise the interpreter claim in
the Nebraska state courts. See Osborne v. Purkett, 411 F.3d 911, 919 (8th Cir. 2005)
(a claim of ineffective assistance of direct appeal counsel must be raised in a
postconviction motion and on postconviction appeal). Moreover, there is no reason
to believe Alarcon-Chavez is actually (meaning factually) innocent or that some
miscarriage of justice took place. The court has carefully examined the record. The
evidence was sufficient to convict Alarcon-Chavez beyond a reasonable doubt. As
such, Claim Five is dismissed.
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
certificates (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,
484-85, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000).
In this case, Petitioner has failed to make a substantial showing of the denial
of a constitutional right. The court is not persuaded that the claims raised in
Petitioner’s petition are debatable among reasonable jurists, that a court could
resolve the claims differently, or that the claims deserve further proceedings.
Accordingly, the court will not issue a certificate of appealability in this case.
IT IS THERFORE ORDERED that Petitioner’s Petition for Writ of Habeas
Corpus (Filing No. 1) is denied and dismissed with prejudice. No certificate of
appealability has been or will be issued. The court will enter a separate judgment in
accordance with this Memorandum and Order.

43

Dated this 1st day of October, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

44