Martinez v. Hansen et al

Filing 12

MEMORANDUM AND ORDER that upon initial review of the habeas corpus petition (Filing No. 1 ), the court preliminarily determines that Petitioner's claims, as they are set forth in this Memorandum and Order, are potentially cognizable in federa l court. By March 2, 2018, Respondent must file a motion for summary judgment or state court records in support of an answer. The clerk of the court is directed to set a pro se case management deadline in this case using the following text: March 2, 2018: deadline for Respondent to file state court records in support of answer or motion for summary judgment. The clerk of the court is directed to set a pro se case management deadline in this case using the following text: March 17, 2018: che ck for Respondent's answer and separate brief. No discovery shall be undertaken without leave of the court. See Rule 6 of the Rules Governing Section 2254 Cases in the United States District Courts. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
FRANCISCO J. MARTINEZ,

)
)
Petitioner,
)
)
v.
)
)
BRAD HANSEN, TSCI Warden, and )
SCOTT FRAKES, NDCS Director,
)
)
Respondents.
)
)

8:17CV406

MEMORANDUM
AND ORDER

This matter is before the court on preliminary review of Petitioner Martinez’s
Petition for Writ of Habeas Corpus (Filing No. 1) brought pursuant to 28 U.S.C.
§ 2254. The purpose of this review is to determine whether Petitioner’s claims, when
liberally construed, are potentially cognizable in federal court. Condensed and
summarized for clarity, Petitioner’s claims are:
CLAIM ONE: (1) The defendant’s sixth amendment rights were violated
at trial in that defendant’s trial counsel’s performance fell below the
standard of a lawyer with ordinary training and skill in the defense of a
criminal case, creating clear error and rendered an unfair trial, as more
specifically enumerated in Claim Two; (2) Trial counsel failed to call or
depose any witnesses on defendant’s behalf to corroborate the
relationship of the defendant and the alleged victim. Trial counsel could
have called: Sonia Martinez and Pedro Ramirez Cabrera.
CLAIM TWO: Appellate counsel provided deficient and prejudicial
representation in several respects. (1) He failed to raise that the district
court erred by not sustaining trial counsel’s motion for a directed verdict
due to the State failure to prove that the events occurred in Douglas

County, Nebraska, an essential element of the crimes charged; (2) He
failed to raise that the district court erred in allowing the State to replay
the 911 tape during closing arguments after it had already been played
once to the jury during the State’s case in chief; (3) He failed to raise that
the district court erred in failing to present a proper verdict form that
should have included the use of force or coercion as an aggravating
factor that must be proven to the jury pursuant to State v. Payan; (4) He
should have raised that the district court improperly instructed the jury.
Instruction No. 5 indicated that the presumption of innocence is evidence
if favor of the defendant and continues throughout the trial “until he shall
have been proved guilty beyond a reasonable doubt.” This statement
implies that the defendant’s guilt is an inevitability and the instruction
is not in conformity with NJI2d Crim. 1.2 or 9.2, which states that the
defendant is presumed innocent. Which means that “you must find him
not guilty unless and until you decide that the State has proved him
guilty beyond a reasonable doubt.”; (5) He should have raised that the
district court erred in allowing the State to present evidence which varied
from the information and presented a second, uncharged theory of guilt
to Count IV of the Information, to wit: Tampering with a witness; (6) He
should have raised ineffective assistance of trial counsel. Trial counsel
failed to request a motion in limine to preclude testimony or evidence
that defendant was married to an individual other than the victim as the
information was irrelevant and unfairly prejudicial pursuant to Neb. Rev.
Stat. § 27-401-403; (7) He should have raised ineffective assistance of
trial counsel. Trial counsel failed to research, prepare or present any
proposed jury instructions knowing that the Court’s final instructions
misstated the law, to wit: Instruction No. 5; (8) He should have raised
ineffective assistance of trial counsel. Trial counsel failed to move for a
mistrial when the State improperly sought to induce testimony of prior
bad acts evidence that was inadmissible pursuant to Neb. Rev. Stat. § 27404(2) and 609; (9) He should have raised ineffective assistance of trial
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counsel. Trial counsel failed to object to the State being able to replay
the 911 tape during closing arguments. State v. Jacob, 253 Neb. 950
(1998); (10) He should have raised ineffective assistance of trial counsel.
Trial counsel failed to object to evidence presented to the jury that was
different from the underlying facts alleged in the information, to wit:
Count IV: Tampering with a witness; (11) He provided deficient and
prejudicial performance when he failed to advise defendant that he was
required to bring his claims for relief to the highest state court in order
to preserve those claims for federal habeas review. In Nebraska this is
accomplished by filing a petition for further review.1
The court determines that these claims, when liberally construed, are potentially
cognizable in federal court. However, the court cautions Petitioner that no
determination has been made regarding the merits of these claims or any defenses to
them or whether there are procedural bars that will prevent Petitioner from obtaining
the relief sought.
IT IS THEREFORE ORDERED that:

1

To the extent that Petitioner claims that the amended post-conviction motion
was not verified by him (filing no. 1 at CM/ECF p. 4 (at allegation “(12)”), that
assertion raises no federal constitutional issue. Besides, the state court records
(“transcript” filed July 6, 2016) submitted to the Nebraska court of appeals shows
Petitioner made no objection to the pleading despite the fact that Petitioner’s two postconviction lawyers who drafted the document served a copy of the amended postconviction motion on him. Still further, the state district court and state court of
appeals did rely upon the lack of a verification. (Through an arrangement with the
Nebraska courts, this court has access to the state court records and takes judicial
notice of them when, as here, it is appropriate to do so.)
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1.
Upon initial review of the habeas corpus petition (Filing No. 1), the court
preliminarily determines that Petitioner’s claims, as they are set forth in this
Memorandum and Order, are potentially cognizable in federal court.
2.
By March 2, 2018, Respondent must file a motion for summary judgment
or state court records in support of an answer. The clerk of the court is directed to set
a pro se case management deadline in this case using the following text: March 2,
2018: deadline for Respondent to file state court records in support of answer or
motion for summary judgment.
3.
If Respondent elects to file a motion for summary judgment, the
following procedures must be followed by Respondent and Petitioner:
A.

The motion for summary judgment must be accompanied by a
separate brief, submitted at the time the motion is filed.

B.

The motion for summary judgment must be supported by any state
court records that are necessary to support the motion. Those
records must be contained in a separate filing entitled:
“Designation of State Court Records in Support of Motion for
Summary Judgment.”

C.

Copies of the motion for summary judgment, the designation,
including state court records, and Respondent’s brief must be
served on Petitioner except that Respondent is only required to
provide Petitioner with a copy of the specific pages of the record
that are cited in Respondent’s motion and brief. In the event that
the designation of state court records is deemed insufficient by
Petitioner or Petitioner needs additional records from the
designation, Petitioner may file a motion with the court requesting
additional documents. Such motion must set forth the documents
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requested and the reasons the documents are relevant to the
cognizable claims.
D.

No later than 30 days following the filing of the motion for
summary judgment, Petitioner must file and serve a brief in
opposition to the motion for summary judgment. Petitioner may
not submit other documents unless directed to do so by the court.

E.

No later than 30 days after Petitioner’s brief is filed, Respondent
must file and serve a reply brief. In the event that Respondent
elects not to file a reply brief, he should inform the court by filing
a notice stating that he will not file a reply brief and that the
motion is therefore fully submitted for decision.

F.

If the motion for summary judgment is denied, Respondent must
file an answer, a designation and a brief that complies with terms
of this order. (See the following paragraph.) The documents must
be filed no later than 30 days after the denial of the motion for
summary judgment. Respondent is warned that failure to file an
answer, a designation and a brief in a timely fashion may
result in the imposition of sanctions, including Petitioner’s
release.

4.
If Respondent elects to file an answer, the following procedures must be
followed by Respondent and Petitioner:
A.

By March 2, 2018, Respondent must file all state court records
that are relevant to the cognizable claims. See, e.g., Rule 5(c)-(d)
of the Rules Governing Section 2254 Cases in the United States
District Courts. Those records must be contained in a separate

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filing entitled: “Designation of State Court Records in Support of
Answer.”
B.

No later than 30 days after the relevant state court records are
filed, Respondent must file an answer. The answer must be
accompanied by a separate brief, submitted at the time the answer
is filed. Both the answer and the brief must address all matters
germane to the case including, but not limited to, the merits of
Petitioner’s allegations that have survived initial review, and
whether any claim is barred by a failure to exhaust state remedies,
a procedural bar, non-retroactivity, a statute of limitations, or
because the petition is an unauthorized second or successive
petition. See, e.g., Rules 5(b) and 9 of the Rules Governing
Section 2254 Cases in the United States District Courts.

C.

Copies of the answer, the designation, and Respondent’s brief
must be served on Petitioner at the time they are filed with the
court except that Respondent is only required to provide Petitioner
with a copy of the specific pages of the designated record that are
cited in Respondent’s answer and brief. In the event that the
designation of state court records is deemed insufficient by
Petitioner or Petitioner needs additional records from the
designation, Petitioner may file a motion with the court requesting
additional documents. Such motion must set forth the documents
requested and the reasons the documents are relevant to the
cognizable claims.

D.

No later than 30 days after Respondent’s brief is filed, Petitioner
must file and serve a brief in response. Petitioner must not submit
any other documents unless directed to do so by the court.

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E.

No later than 30 days after Petitioner’s brief is filed, Respondent
must file and serve a reply brief. In the event that Respondent
elects not to file a reply brief, he should inform the court by filing
a notice stating that he will not file a reply brief and that the merits
of the petition are therefore fully submitted for decision.

F.

The clerk of the court is directed to set a pro se case management
deadline in this case using the following text: March 17, 2018:
check for Respondent’s answer and separate brief.

5.
No discovery shall be undertaken without leave of the court. See Rule 6
of the Rules Governing Section 2254 Cases in the United States District Courts.
DATED this 16th day of January, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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