Fuentes v. Frakes

Decision Date24 November 2020
Docket Number4:19CV3060
PartiesTIMOTHY FUENTES, Petitioner, v. SCOTT R. FRAKES, Respondent.
CourtUnited States District Courts. 8th Circuit. United States District Court of Nebraska
MEMORANDUM AND ORDER

This matter is before the court on Petitioner Timothy Fuentes' ("Petitioner" or "Fuentes") Petition for Writ of Habeas Corpus. (Filing 1.) For the reasons that follow, Petitioner's habeas petition is denied and dismissed with prejudice.

I. CLAIMS

Summarized and condensed,1 and as set forth in the court's prior progression order (filing 5), Petitioner asserted the following claims that were potentially cognizable in this court:

Claim One: Petitioner was denied the effective assistance of counsel because counsel (1) failed to file pretrial motions; (2) failed to properly conduct jury selection; (3) failed to properly represent Petitioner at trial; (4) failed to properly argue for a new trial; and (5) failed to file a motion for recusal of the trial judge. (Filing 1 at CM/ECF pp. 5-6, 12.)
Claim Two: Petitioner was denied the constitutional right to a fair trial because there was insufficient evidence to support his conviction. (Id.

at CM/ECF pp. 6-7.)

Claim Three: Petitioner was denied the right to prepare a meaningful defense, due process of law, and the effective assistance of counsel because counsel (1) failed to investigate, depose, and call witnesses who would have provided first-hand knowledge of what happened (id. at CM/ECF pp. 7-8); (2) failed to investigate other suspects (id. at CM/ECF p. 12); (3) failed to conduct reasonable pretrial discovery and investigation to gather defense evidence to refute the State's theory of sexual assault on a child in the third degree (id. at CM/ECF pp. 5-6, 8); and (4) failed to impeach the victim's testimony and offer evidence to refute the photographic lineup in which the victim's mother pressured the victim to identify Petitioner (id. at CM/ECF pp. 8, 12).

Claim Four: Petitioner was denied due process and the effective assistance of counsel because counsel failed to raise several claims on appeal including improper inconsistencies in the victim's statement and lack of evidence when the trial court called a mistrial. (Id. at CM/ECF p. 9.)

II. BACKGROUND
A. Conviction and Sentence

The court states the facts as they were recited by the Nebraska Court of Appeals on direct appeal in State v. Fuentes, No. A-13-0340 (Neb. Ct. App. Feb. 26,2014) (filing 9-3). See Bucklew v. Luebbers, 436 F.3d 1010, 1013 (8th Cir. 2006) (utilizing state court's recitation of facts on review of federal habeas petition).

On the afternoon of August 21, 2012, nine-year-old Analicia B. ran into her parent's basement apartment "scared," "crying," and "upset," and she told her mother, DelMaria B., and her stepfather, Gabriel T., that while she had been sitting on the back bumper of her parents' car in front of the apartment building, a man in a red shirt had touched her private part. DelMaria and Gabriel ran outside and confronted the man in the red shirt, who was identified as Fuentes. Although Fuentes denied touching the victim, several days later Analicia identified his photograph in a photographic lineup. Thereafter, Fuentes was charged with third degree sexual assault of a child, second offense, in violation of Neb. Rev. Stat. § 28-320.01(5) (Reissue 2008). A jury trial was held in January 2013, wherein the jury was charged with determining if Fuentes was guilty of the offense of third degree sexual assault of a child. This trial ended in a deadlocked jury. A mistrial was declared, and a second trial commenced on March 11, 2013.

At the second trial, the evidence established that in August 2012, Analicia was nine years old, having been born in June 2003, and Fuentes was 51 years old, having been born in October 1960. In August 2012, Analicia resided in a house split into two living units: a basement apartment and an upstairs apartment. Analicia resided in the basement apartment with DelMaria, Gabriel, her eight-year-old brother, Gabriel, Jr., and her five-year-old sister, Marissa. The upstairs apartment was occupied by an older couple, Bernice and Willard New, their adult daughter, and their two grandchildren, Jade and Angel.

The first witness to testify at trial was Analicia. According to Analicia, on August 21, 2012, Gabriel was in front of the parties' house supervising Analicia, who was sitting on the back bumper of DelMaria and Gabriel's car watching Marissa, who was riding a bicycle. Analicia testified that she remembered a man, later identified as Fuentes, greeting Gabriel, and then both Gabriel and Fuentes walked into the house, with Gabriel going to the downstairs apartment and Fuentesgoing to the upstairs apartment. After Gabriel went inside the apartment, another girl, who worked at Dermer's liquor store located next door to the apartments, was outside watching Analicia and her sister. After about five minutes, the man exited the house, and Analicia testified that he "slid his finger" of his right hand up, then sideways, on her genital area over her clothes. As he was leaving, the man said "bye-bye, mija," which Analicia testified is another word for "little girl." After Fuentes touched her, Analicia told her sister to come with her, and they immediately ran inside to the basement apartment, and Analicia told DelMaria and Gabriel what had happened.

At trial, Analicia testified that the man who touched her had brown and gray hair and was wearing glasses, blue jeans, a red t-shirt, and a baseball cap with cursive letters that she could not read at that time. She identified Fuentes in court as the man who touched her and stated that she was scared when Fuentes touched her. At the time of the trial, Analicia no longer lived with her parents or siblings, having moved to Cheyenne, Wyoming, to live with her grandmother about a month before the trial began.

Gabriel testified that he was outside watching all three of his children when Fuentes came around the corner of Dermer's liquor store, greeted him briefly, then walked into the upstairs apartment. Gabriel then went inside to the downstairs apartment for about five minutes to talk to DelMaria. As Gabriel was about to leave the basement apartment, Analicia came inside crying, she appeared scared and upset, and she said that the man in the red shirt had touched her. Gabriel testified that he went outside to confront Fuentes; however, when he got outside, he saw Fuentes walking away and found him on the east side of Dermer's Liquor Store, along with "quite a few" other people, several of whom were males. According to Gabriel, Fuentes was the only person nearby wearing a red shirt. Gabriel confronted Fuentes and started yelling at him, but Fuentes responded that he "didn't do anything." Fuentes walked away and disappeared from Gabriel's view.

Gabriel testified that a month to a month and a half after the incident, the News moved out of the upstairs apartment, and three or four months after they moved out, Gabriel and his family moved out of the basement apartment and into the upstairs apartment. Gabriel further admitted that he had been wanting the upstairs apartment even before the News moved out.

DelMaria's testimony corroborated that when Analicia came to the downstairs apartment she was scared and crying. DelMaria also testified that Analicia's face was red and that she kept saying that "that man outside touched my private." When DelMaria raced outside, she saw Fuentes standing in front of Dermer's Liquor Store talking with the owner of the liquor store. DelMaria testified that she and Gabriel started yelling at Fuentes, accusing him of touching Analicia, but Fuentes repeatedly denied it, stating "I didn't do that, I wouldn't do that." DelMaria stated that it was just she, Gabriel, the owner of the liquor store, and Fuentes present when DelMaria stated that she was going to call the police. DelMaria did call the police, and although police responded within two to three minutes, by the time Scottsbluff Police Officer Matthew Broderick arrived, Fuentes was gone.

Broderick took statements about the incident from both Gabriel and DelMaria, who identified Fuentes as the perpetrator. He did not take a statement from Analicia because he was not trained to interview children regarding claims of sexual assault; rather, the procedure is for the officer to take initial statements from adults, and if a forensic interview of the juvenile is needed, a trained investigator performs that interview. However, several days after the incident, he did show a six-photo lineup to Analicia and she recognized Fuentes in the photographs. Broderick testified that although DelMaria was present when Analicia viewed the photographic lineup, DelMaria did not have any input into the procedure of showing the photographs to Analicia and DelMaria did not say anything during the process.

Fuentes also called witnesses in his defense, including Scottsbluff Police Officers Stephen Wescher and Joe Rohrer, Bernice New, Pauline Poor Bear, Angel Poor Bear, and himself.

Wescher testified that on August 24, 2012, Fuentes presented himself at the police station because he had heard that the police were looking for him and he wanted to know why. During the conversation, Wescher told Fuentes that the police were looking for someone who went by the name of "Tiny Tim," and Fuentes stated that he had never gone by that street name. Thereafter, Fuentes left the police station. According to Wescher, Fuentes was calm during the encounter and did not appear evasive. When asked where he had heard the name "Tiny Tim," Wescher responded that he had heard the name when officers were discussing situations and typing reports, but that he was not associating the name "Tiny Tim" to the investigation regarding the alleged sexual assault on Analicia and that the name "Tiny Tim" was not referenced in Broderick's report.

Bernice New testified that Gabriel and DelMaria's family had caused problems since the News moved into the upstairs...

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