Martinez v. Wilhelm

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JUAN GONZALEZ MARTINEZ, Petitioner, v. MICHELLE WILHELM, Respondent.

No. 8:20CV372

United States District Court, D. Nebraska

March 29, 2023

MEMORANDUM AND ORDER

Joseph F. Bataillon, Senior United States District Judge

This matter is before the Court on Petitioner Juan Gonzalez Martinez's (“Gonzalez Martinez” or “Petitioner”) Motion for Stay to Exhaust State Claims filed on May 6, 2022. Filing No. 41. This matter was reassigned to the undersigned on December 15, 2022, after the retirement of the Honorable Richard G. Kopf. For the reasons discussed below, Petitioner's motion is granted.

I. BACKGROUND

On May 24, 2018, the State of Nebraska filed an information against Gonzalez Martinez for three counts of first degree sexual assault upon his daughter, M.F., who was born in 1995. Filing No. 35-2 at 4; Filing No. 35-5 at 3-7. A jury trial was held at which a verdict of acquittal was directed on counts 2 and 3, and the jury found Gonzalez Martinez guilty of count 1 on June 17, 2019. Filing No. 35-2 at 4-5; Filing No. 35-5 at 130. On July 23, 2019, the District Court of Lancaster County, Nebraska sentenced Gonzalez Martinez to 30 to 40 years' imprisonment. Filing No. 35-5 at 142-144.

Gonzalez Martinez filed a direct appeal on August 5, 2019, and was represented by the same counsel on appeal as had represented him at trial. Filing No. 30 at 2; Filing No. 35-1 at 2. On appeal, Gonzalez Martinez argued that the state district court erred when (1) it admitted translations of Gonzalez Martinez's out-of-court statements under a language conduit theory, (2) it failed to admit the statements of M.F. and M.F.'s teacher as residual hearsay, (3) it admitted evidence of sexual contact that occurred outside of the time period and geographical jurisdiction of the charges, and (4) it admitted the videotaped law enforcement interview in violation of Gonzalez Martinez's Miranda rights. Filing No 35-2 at 7; Filing No. 35-3 at 8-9. Gonzalez Martinez also argued that (5) the evidence was insufficient to sustain a conviction for first degree sexual assault and (6) the state district court abused its discretion by imposing an excessive sentence. Filing No. 35-2 at 7; Filing No. 35-3 at 9. In a published opinion filed on July 17, 2020, the Nebraska Supreme Court affirmed Gonzalez Martinez's conviction and sentence, and the mandate issued on August 3, 2020. Filing No. 35-1 at 4; Filing No. 35-2; see also State v Martinez, 946 N.W.2d 445 (Neb. 2020).

Gonzalez Martinez received a copy of the Nebraska Supreme Court's opinion via a letter from his counsel dated July 20, 2020. Filing No. 43-1. The letter was written in Spanish and English and informed Gonzalez Martinez that he had lost his appeal, that any petition for further review would likely be futile, and that he would have to hire a private attorney or proceed on his own in any petition for further review because counsel's representation had ended. Id. Counsel concluded the letter by suggesting to Gonzalez Martinez that he “may want to investigate post-conviction relief if [he] want[ed] to pursue further review in this case.” Id. Counsel did not advise Gonzalez Martinez of the nature of a state postconviction proceeding or the deadline for filing one. Gonzalez Martinez did not thereafter file any postconviction motion or other request for collateral relief in the state courts. Filing No. 30 at 4.

Gonzalez Martinez filed a habeas petition pursuant to 28 U.S.C. § 2254 in this Court on September 18, 2020. Filing No. 1. On October 10, 2020, Gonzalez Martinez sent a letter to the Court, which was written in Spanish and translated by the Court interpreter into English. Filing No. 8. Gonzalez Martinez wrote that he did not know what was going on with his case, that he did not know who his lawyer was, and that he basically did not know anything. Id. Other letters of a similar nature followed, in which Gonzalez Martinez asked for permission to visit his children, expressed concern that he would be sent out of the country, recited short prayers, relayed a Facebook post from his daughter, and again said that he did not know what to do or who his lawyer was. Filing Nos. 9, 10, 12, & 13.

The Court conducted a preliminary review of the petition on February 1, 2021, and determined the petition was insufficient as Gonzalez Martinez had left the majority of the Form AO 241 petition blank, identifying only the judgment he challenged but none of the grounds on which he sought federal habeas relief. Filing No. 11. The Court gave Gonzalez Martinez leave to file an amended petition that clearly set forth all his grounds for relief. In recognition of his limited ability to speak or write English, the Court encouraged Gonzalez Martinez to seek assistance in his institution from an individual that speaks both Spanish and English in completing an amended petition and to inform the Court if was unable to obtain such assistance. Filing No. 11 at 2. Gonzalez Martinez filed an amended petition on February 9, 2021, that was essentially identical to his original petition in that it was mostly blank and did not identify the grounds for relief. Filing No. 14. Gonzalez Martinez also filed correspondence that the Court construed as a motion for the appointment of counsel, Filing No. 15, and, on May 28, 2021, the Court appointed the Federal Public Defender to represent Gonzalez Martinez and directed counsel to enter an appearance and, if appropriate, file an amended habeas petition. Filing No. 18.

In the brief in support of the Motion for Stay, counsel for Gonzalez Martinez indicates that communication with Gonzalez Martinez was difficult from the outset due to counsel's difficulties in communicating with the Lincoln County Jail in North Platte, Nebraska where Gonzalez Martinez was housed and the facility's refusal to facilitate phone calls between counsel and Gonzalez Martinez. Filing No. 42 at 4-5. Due to these delays, and without any opposition from Respondent, counsel for Gonzalez Martinez requested and received extensions of time to file an amended petition. See Filing Nos. 21, 24, 26, 28, & Text Orders 23, 25, 27, & 29. On December 14, 2021, Gonzalez Martinez, through counsel, filed his Amended Petition for Writ of Habeas Corpus (“Amended Petition”). Filing No. 30.

On December 15, 2021, the Court entered a Memorandum and Order in which it set out the claims alleged in the Amended Petition as follows:

Claim One: Petitioner's Due Process rights were violated by the trial court's submission of evidence of sexual contact that occurred outside of the charged conduct and jurisdiction of the charges.

Claim Two: The trial court erred by overruling Petitioner's motion to suppress and in admitting translations of Petitioner's out of court Spanish statements under a language conduit theory in violation of Petitioner's Due Process rights and the Fifth Amendment of the Constitution.

Claim Three: The trial court's exclusion of reliable evidence consisting of statements made by M.F. to her teacher violated petitioner's rights to due process, a fair trial and to present a defense in violation of his Fourteenth and Sixth Amendment.

Claim Four: Admission of Petitioner's out of court statements as well as Petitioner's video-recorded statements was in violation of the constitutional safeguards of Miranda v. Arizona and the Fifth, Sixth and Fourteenth Amendments to the Constitution.

Claim Five: Petitioner's due process rights under the Fourteenth Amendment and his Sixth Amendment right to a fair and impartial trial were violated by the trial court's submission of the charges against Petitioner to the jury when no rational fact finder could have found the elements of those charges to be proven beyond a reasonable doubt.

Claim Six: Cumulative errors at Petitioner's trial proceeding resulted in an unconstitutionally imposed guilty verdict, depriving Petitioner of a fair and reliable guilt determination in violation of his rights to due process, fair trial, unbiased jury, effective assistance of counsel, to present a defense, to confront and cross-examine, to a reliable determination of guilt, and to meaningful appellate review as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.

Claim Seven: The Petitioner received an excessive sentence in violation of the Eighth Amendment of the Constitution.

Claim Eight: Trial Counsel was ineffective for failing to make adequate objections during trial and at the appellate level in violation of Petitioner's Sixth and Fourteenth Amendment Rights.

Claim Nine: Trial Counsel was ineffective for failing to raise on direct appeal that trial counsel was ineffective.

Filing No. 31. The Court also progressed this matter and directed Respondent to file a motion for summary judgment or an answer in response to the Amended Petition and outlined the parties' briefing deadlines. Id.

Respondent filed a Designation of State Court Records in Support of Answer, Filing No. 35, on January 31, 2022, followed by an answer, Filing No. 36, and brief, Filing No. 37, on February 23, 2022. In relevant part, Respondent contends that all of Gonzalez Martinez's habeas claims, except for Claim Five and a portion of Claim Four, are procedurally defaulted. Filing No. 37 at 10.

Instead of filing a brief in response to Respondent's answer and brief, Gonzalez Martinez, through counsel, filed a Motion for Stay to Exhaust State Claims, Filing No. 41, a brief, Filing No. 42, and an index in support of the motion, Filing No. 43. Gonzalez Martinez asserts that he has presented a “mixed” petition with some exhausted and some unexhausted claims and is entitled to a stay of these proceedings under Rhines v. Weber, 544 U.S. 269 (2005). Gonzalez Martinez requests that the Court stay these habeas...