State v. Magallanes
| Decision Date | 14 February 2017 |
| Docket Number | No. A-15-1086.,A-15-1086. |
| Parties | STATE OF NEBRASKA, APPELLEE, v. ALBERTO C. MAGALLANES, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Douglas County: GARY B. RANDALL, Judge. Affirmed.
Alberto C. Magallanes, pro se.
Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.
Alberto C. Magallanes appeals from the order of the district court for Douglas County, which denied his amended motion for postconviction relief without an evidentiary hearing. The court also denied Magallanes' request for appointment of counsel. Finding no error in the denial of Magallanes' amended postconviction motion nor any abuse of discretion in the denial of his request for appointment of counsel, we affirm.
In November 2009, a deputy with the Douglas County sheriff's office stopped a vehicle driven by Magallanes on Interstate 80, after observing the vehicle momentarily cross the fog line onto the shoulder of the highway at two separate locations, which the deputy believed was a violation of Neb. Rev. Stat. § 60-6,142 (Reissue 2010) (prohibiting driving on the shoulder of a highway). See State v. Magallanes, 284 Neb. 871, 824 N.W.2d 696 (2012), cert. denied ___ U.S. ___, 133 S. Ct. 2359, 185 L. Ed. 2d 1082 (2013). The deputy explained why he pulled Magallanes over and asked if Magallanes was "'okay to drive.'" 284 Neb. at 873. Magallanes consented to a search of his vehicle, which revealed several packages of methamphetamine and cocaine in the gasoline tank. Id.
On December 22, 2009, the State filed an information in the district court, charging Magallanes with four counts related to the traffic stop. The State subsequently dismissed those charges without prejudice, and an indictment was filed in the U.S. District Court for the District of Nebraska (federal court). In September 2010, the federal court dismissed the federal indictment against Magallanes. See U.S. v. Magallanes, 730 F. Supp. 2d 969 (D. Neb. 2010) (). The State then refiled charges against Magallanes in state district court, charging Magallanes with possession with intent to deliver methamphetamine, possession with intent to deliver cocaine, and two counts of failing to affix a drug tax stamp.
After the charges were refiled in state district court, Magallanes filed three separate motions to suppress, all of which were denied by the district court. Because Magallanes asserts claims relating to the hearing on his first motion to suppress in his current postconviction motion, we have described that hearing in greater detail.
At the November 17, 2010 hearing on Magallanes' first motion to suppress, the district court received into evidence a DVD with audio and video from the traffic stop and a transcription of May 2010 proceedings in federal court containing testimony from the deputy who made the traffic stop. In the May 2010 federal court proceedings, the deputy initially testified that his only reason for stopping Magallanes was the traffic violation, but upon cross-examination, he testified that he stopped Magallanes for the traffic violation and for possibly being an impaired driver. Upon the deputy's initial contact with Magallanes, he was able to immediately rule out the possibility of alcohol impairment. At the November 2010 state court suppression hearing, upon the State's request, the court took judicial notice of the state "statutory rules of the road or ordinances." The parties stipulated that Magallanes was the same defendant referred to in the federal court transcription and that if the deputy was called, he would so identify Magallanes.
Magallanes then offered copies of his brief in opposition to the Unites States' objection to findings by the federal magistrate judge, the findings and recommendations of the federal magistrate judge, and the federal district court memorandum and order granting his motion to suppress filed in those proceedings. Magallanes' attorney stated that these exhibits were offered "in support of our argument, not for substantive purposes." When asked if the State had any objections to these exhibits, the prosecutor stated, The court responded that it could not take judicial notice of the records of the federal court, but stated further, Magallanes' attorney agreed with this assertion. The court then received Magallanes' exhibits and proceeded to hear argument from the parties.
On January 7, 2011, the district court entered an order denying Magallanes' first motion to suppress. The court rejected the federal court's analysis and application of § 60-6,142 and found that regardless of the length of time Magallanes traveled on the shoulder of the highway, because his vehicle crossed over the lane line onto the shoulder, he committed a traffic violation, providing probable cause for the deputy to conduct the traffic stop. The court also found that the deputy had reasonable suspicion to conduct a traffic stop.
On July 29, 2011, a bench trial was held before the district court. The State offered as exhibits the same DVD of the traffic stop and the federal court hearing transcription, as well as transcriptions of the state court hearings on all three of Magallanes' motions to suppress. Magallanes renewed his objections to the evidence "for the reasons contained in [his] motion[s] to suppress," namely, that there was no probable cause for the traffic stop, the search exceeded the scope of his consent, and his consent was not voluntary. The court overruled Magallanes' objections and received the exhibits, after which the State rested. Magallanes again renewed his objections for the reasons found in his motions to suppress and offered the same three exhibits he offered at the hearing on his first motion to suppress. Magallanes offered his exhibits "not as substantive evidence but as persuasion." Under "those parameters," the State had no objection, and the court received Magallanes' exhibits. Magallanes then rested his case. The court found Magallanes guilty of possession with intent to deliver over 140 grams of methamphetamine, possession with intent to deliver over 140 grams of cocaine, and two counts of failure to affix a drug tax stamp.
A sentencing hearing was held before the district court on November 23, 2011. The court sentenced Magallanes to 20 to 40 year' imprisonment for each possession conviction and 1 to 2 years' imprisonment for each conviction for failure to affix a tax stamp, with all terms running concurrently.
On direct appeal, Magallanes was represented by the same counsel as at trial. Magallanes asserted that the district court erred in (1) denying his motion to suppress because the deputy did not have probable cause to stop Magallanes' vehicle, resulting in an illegal seizure and (2) overruling Magallanes' motion to suppress because the evidence obtained during the illegal stop and seizure should have been suppressed as fruit of the poisonous tree. See State v. Magallanes, 284 Neb. 871, 824 N.W.2d 696 (2012), cert. denied ___ U.S. ___, 133 S. Ct. 2359, 185 L. Ed. 2d 1082 (2013). The Nebraska Supreme Court rejected Magallanes' claims on direct appeal, finding first, "By applying the plain and ordinary meaning of the words in the statute, any crossing of the fog line onto the shoulder constitutes driving on the shoulder and is a violation of § 60-6,142." 284 Neb. at 877. The Supreme Court also found that the deputy had probable cause to conduct a traffic stop of Magallanes' vehicle and that Magallanes' consent was sufficient to allow the search of his vehicle. 284 Neb. at 878. Finally, as a matter of plain error, the Supreme Court found that the evidence was insufficient to support Magallanes' two convictions for failure to affix a tax stamp.Accordingly, the Court affirmed the judgments and convictions for possession with intent to deliver a controlled substance. However, the Court reversed the judgments of conviction and sentences for failure to affix a tax stamp and remanded with direction to dismiss those two counts.
In December 2013, Magallanes mailed a verified motion for postconviction relief, which was inadvertently not filed by the clerk until February 6, 2014. Magallanes also mailed a "Motion for Leave to Amend Motion for Postconviction Relief with Extension of Time of (90) days" and a motion for appointment of counsel, which were not file-stamped until February 12, 2014. Magallanes' pleadings were actually received by the court on or about December 17, 2013. See State v. Magallanes, No. A-14-336, 2015 WL 1510677 (Neb. App. Mar. 31, 2015) () (State v. Magallanes II). In his motion for leave to amend, Magallanes requested leave to amend his postconviction motion if it was determined to be necessary upon further review of the record or by counsel in the event his request for appointment of counsel was granted. He asserted that due to the 1-year statute of limitations under Neb. Rev. Stat. § 28-3001 (Reissue 2008) for postconviction actions, it was necessary to file his motion "without having time to argue said claims" and due to limited time...
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