Balvin v. Britten, 091613 NEDC, 8:12CV377

Docket Nº8:12CV377
Opinion JudgeJOSEPH F. BATAILLON, District Judge.
Party NameSONNY D. BALVIN, Petitioner, v. FRED BRITTEN, Respondent.
Case DateSeptember 16, 2013
CourtUnited States District Courts, 8th Circuit, United States District Courts. 8th Circuit. United States District Court (Nebraska)

SONNY D. BALVIN, Petitioner,

v.

FRED BRITTEN, Respondent.

No. 8:12CV377

United States District Court, D. Nebraska.

September 16, 2013

MEMORANDUM AND ORDER

JOSEPH F. BATAILLON, District Judge.

This matter is before the court on Petitioner Sonny D. Balvin's ("Balvin") Petition for Writ of Habeas Corpus ("Petition"). (Filing No. 1.) Respondent filed an Answer (filing no. 12), Brief on the merits of the Petition (filing no. 13), Reply Brief (filing no. 20), and relevant State Court Records (filing no. 11). Balvin has filed a Brief in response to Respondent's Answer and Brief. (Filing No. 17.) This matter is therefore deemed fully submitted.

Liberally construed, Petitioner asserts he was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because his trial counsel advised him to abandon his alibi defense and enter a plea of no contest. (Filing No. 1 at CM/ECF pp. 5-6.)

BACKGROUND

The Nebraska Court of Appeals provided the following background in denying Petitioner's state motion for post conviction relief:1

On September 25, 2009, the State filed an information in the district court, charging Balvin with one count of first degree sexual assault, a Class II felony. On November 30, 2009, Balvin pled no contest to attempted second degree sexual assault, a Class IIIA felony, in exchange for the State's agreement to reduce the charge of the original information, dismiss another pending case, and not to file several other charges. The State filed an amended information in connection with the plea agreement.

At the plea hearing, Balvin was arraigned on the amended information, and he stated that he understood the charge and the possible penalty that could include a civil commitment following release and lifetime community supervision.

The district court informed Balvin of his various rights, and Balvin stated that he understood that he was giving up his presumption of innocence, his right to a trial, his right to confront his accusers, his right to present witnesses in his own defense, his right to remain silent, his right to question the legality of any search and seizure of evidence or to question the legality of any statements, admissions, or confessions he might have made in connection with the case by pleading no contest. Balvin also stated that he understood he would be found guilty of a felony offense if the court accepted his plea and that he understood the various disabilities associated with a felony conviction as explained by the court.

The district court advised Balvin that he was entitled to have a jury determine whether he would be subject to lifetime supervision, and Balvin stated that he understood his right and he was freely and voluntarily waiving his right to a jury determination of the issue and leaving the issue for the court to decide. Balvin informed the court that he understood the court's explanation of his rights and did not have any questions about those rights, and that he was waiving those rights and giving them up freely and voluntarily. Balvin again indicated his understanding of the possible penalties if convicted of the amended charge, including that he could be subject to the registration requirements of the Nebraska Sex Offender Registration Act (the SORA) and the possibility that his sentence could run consecutively to the sentence he was already serving in another case. Balvin again informed the court that he understood what he was charged with in the amended information and that he did not have any questions about the charge itself.

The prosecutor provided a detailed and extensive factual basis encompassing approximately 6 pages of the bill of exceptions from the plea hearing. The factual basis showed that Balvin left a bar in Lincoln, Nebraska, with the female victim after Balvin had purchased drinks for her. Balvin accompanied the victim with the explanation that he would walk her to her vehicle. While walking through a residential area, Balvin took the victim into a detached garage, choked her, and subjected her to penile-vaginal and penile-anal penetration. The offense occurred sometime after midnight on October 6, 2007. Neither Balvin nor his attorney had any comments to make on the factual basis provided by the State.

Balvin informed the district court that he had discussed the plea proceedings with his attorney and that his attorney had explained the charge in the amended information together with the rights that the court had been discussing with Balvin. The court then asked Balvin:

THE COURT: Did [your attorney] discuss with you all of the possible defenses to this charge that you might have if you were to have a trial?

[BALVIN]: Yes.

THE COURT: Are there any defenses that you feel you may have or any facts about the case you feel might be helpful to your defense that you have not discussed with [your attorney]?

[BALVIN]: No.

THE COURT: In other words, have you told him everything about the case that you feel he needs to know to be able to represent you properly?

[BALVIN]: Yes.

THE COURT: Are you satisfied with the job he has done as your attorney?

[BALVIN]: Yes.

THE COURT: Do you feel he is a competent lawyer, that he knows what he's doing?

[BALVIN]: Yes.

THE COURT: Is there anything you have asked him to do in regard to representing you in this matter that he has failed to do?

[BALVIN]: No.

Balvin also informed the court that he had had enough time to discuss the case with his attorney.

Balvin and his attorney both informed the district court that the prosecutor's recitation of the details of the plea agreement corresponded to their own understanding of the agreement. Balvin agreed that the plea agreement was "an agreeable way to dispose of these matters" as far as he was concerned. Balvin informed the court that no one had made any threats, direct or indirect, used any force, or held out promises of any kind to get him to plead to the charge of the amended information. He also informed the court that he understood that the determination of the sentence, within the statutory limits, was entirely up to the court, that he still wished to plead no contest to the amended information, and that he was freely and voluntarily entering the plea and waiving his rights.

Balvin had nothing else he wished to say or any questions for the court or his attorney. After determining that Balvin's attorney believed that Balvin fully understood his rights and the consequences of waiving those rights, the district court accepted Balvin's plea and found Balvin guilty of the offense charged in the amended information.

On January 14, 2010, the district court sentenced Balvin to a term of imprisonment of 4 to 5 years, consecutive to any other sentence then being served by Balvin. For purposes of lifetime community supervision, the State offered exhibit 1, a compact disc containing several of the police reports found in the presentence investigation report, and exhibit 2, Balvin's prior certified conviction for first degree sexual assault in another case. Balvin's attorney objected to exhibit 2 based on his position that the court could not use that exhibit to find that the current offense was an aggravated offense for purposes of community supervision. The court overruled Balvin's objection and received both exhibits.

In sentencing Balvin, the district court observed that this was Balvin's fourth felony conviction and noted the seriousness and the use of force involved in the present offense. The court noted that Balvin was "very fortunate" that his attorney had obtained an agreement, allowing Balvin to plead to a Class IIIA felony. In addition to sentencing Balvin to imprisonment for 4 to 5 years, the court ordered Balvin to submit to a human immune deficiency virus antibody or antigen test to be conducted under the jurisdiction of the Department of Correctional Services and that the results be made available to the victim, the court, and the Department of Health and Human Services. The court determined that Balvin's crime was an aggravated offense "both because of [his] previous conviction and because... the underlying facts of the case here make this an aggravated offense." As a result, Balvin was required to register under the SORA for the remainder of his life and was also subject to lifetime community supervision. The court made the findings as to the aggravated circumstances beyond a reasonable doubt. This court summarily affirmed Balvin's conviction and sentence on direct appeal, and the Nebraska Supreme Court denied Balvin's petition for further review. See State v. Balvin, 18 Neb.App. iii (case No. A-10-124, July 27, 2010).

On April 18, 2011, Balvin filed a pro se motion for postconviction relief, alleging that he had received ineffective assistance of counsel in various ways. In its response to Balvin's motion, the State asked the district court to deny an evidentiary hearing. The court entered an order on September 21 granting the State's motion to deny an evidentiary hearing, and...

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