                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                    STATE V. MAGALLANES


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                STATE OF NEBRASKA, APPELLEE,
                                               V.

                            ALBERTO C. MAGALLANES, APPELLANT.


                           Filed February 14, 2017.   No. A-15-1086.


       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.


       MOORE, Chief Judge, and INBODY and PIRTLE, Judges.
       MOORE, Chief Judge.
                                        I. INTRODUCTION
        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.
                                        II. BACKGROUND
                        1. CHARGES AND FEDERAL COURT PROCEEDINGS
       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



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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) (concluding that
Magallanes’ vehicle was not driving on the shoulder in violation of state statute and officer did not
have objectively reasonable belief Magallanes violated law). 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.
                  2. SUPPRESSION HEARINGS AND CONVICTION IN STATE COURT
         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, “I don’t believe that they’d be proper for
evidence in this matter. But insofar as the Court would review it for argument, I believe it is
proper.” The court responded that it could not take judicial notice of the records of the federal
court, but stated further, “[T]hey’re not offered as authority. They’re merely offered for the fact



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that these were the pleadings that were filed in that [federal court] proceeding.” 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.
                                        3. DIRECT APPEAL
         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.



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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.
                                4. FIRST POSTCONVICTION APPEAL
        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) (not designated
for permanent publication) (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 allowed “for an inmate to prepare his litigations.”
        On December 17, 2013, the court entered an order, granting Magallanes leave to proceed
in forma pauperis, denying his motion for appointment of counsel, and granting the State 45 days
in which to respond to Magallanes’ postconviction motion. The court specifically made no ruling
on Magallanes’ motion for leave to amend. On March 28, 2014, the district court denied
Magallanes’ postconviction motion, but it did not mention Magallanes’ motion for leave to amend.
        Magallanes appealed, and this court reversed and remanded with directions to grant the
motion for leave to amend. We also reversed the order which denied Magallanes’ request for
appointment of counsel based upon his original postconviction motion. See State v. Magallanes
II, supra.
                         5. ADDITIONAL POSTCONVICTION PROCEEDINGS
        On May 13, 2015, the district court entered an order on mandate, granting Magallanes 45
days to file an amended postconviction motion. The court withheld ruling on Magallanes’ motion
to appoint counsel until the court had reviewed his amended motion for postconviction relief.
        On June 4, 2015, Magallanes filed his amended motion for postconviction relief. In his
amended motion, he alleged that the trial court had erred by (1) not taking judicial notice of the
adjudicated facts found in the federal magistrate judge’s findings and recommendations and the
federal district court memorandum and order granting his motion to suppress that were filed in the
federal court proceedings, (2) rehearing and reweighing the evidence with respect to the allegations
against him, rather than acting as an intermediate court of appeals and deferring to the federal
court’s ruling on his suppression motion in the federal case, and (3) denying his motion for mistrial
(addressed during his sentencing hearing) without reaching the merits of the motion or allowing
him to introduce evidence in support of the motion. Magallanes also alleged that his trial counsel
was ineffective during the first suppression hearing in state court for not asking the district court
to take judicial notice of the federal court’s prior adjudication of his suppression motion and for




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not objecting when the district court indicated that it would not be taking judicial notice of the
federal court’s decision. Finally, Magallanes alleged that his appellate counsel was ineffective on
direct appeal for not assigning error with respect to the court’s reweighing of the evidence
regarding his suppression motion in state court rather than deferring to the federal court’s
adjudication of his suppression motion in federal court.
        On October 30, 2015, Magallanes filed a motion for leave to amend supplemental claims.
His additional allegations in that motion were that his convictions and sentences are void because
the statute that led to the traffic stop in this case, § 60-6,142, is unconstitutionally overbroad and
unconstitutionally vague. Magallanes also alleged that his convictions and sentences are void
because the alternative basis for the traffic stop, to check whether a driver whose vehicle
inadvertently and momentarily crossed the fog line onto the shoulder of the highway was impaired,
was also invalid and unconstitutional.
        In an order entered on November 5, 2015, the district court denied all eight of Magallanes’
postconviction claims without an evidentiary hearing and also denied his motion for appointment
of counsel. The court found that Magallanes’ claims of trial court error were all procedurally barred
because they either were or could have been litigated on direct appeal. The court found
Magallanes’ claim of ineffective assistance of trial counsel to be without merit because the trial
court did not have the authority to take judicial notice of the prior federal court proceedings, and
even if it had such authority, the federal court’s decision would not have had any precedential
value to the trial court’s ultimate decision on suppression. The court also rejected Magallanes’
claim of ineffective assistance of appellate counsel, finding that the trial court was not acting as an
appellate court or “reweighing the evidence” from the federal court when it addressed Magallanes’
motion to suppress in state court. Finally, the court determined that Magallanes’ constitutional
challenges to § 60-6,142 and the validity of the traffic stop of his vehicle were procedurally barred
because they could have been brought on direct appeal.
        Magallanes subsequently perfected the present appeal to this court.
                                  III. ASSIGNMENTS OF ERROR
       Magallanes asserts, restated, that the district court erred in (1) denying his amended motion
for postconviction relief without an evidentiary hearing and (2) denying his request for
appointment of counsel.
                                   IV. STANDARD OF REVIEW
        A defendant requesting postconviction relief must establish the basis for such relief, and
the findings of the district court will not be disturbed unless they are clearly erroneous. State v.
Starks, 294 Neb. 361, 883 N.W.2d 310 (2016). In appeals from postconviction proceedings, an
appellate court reviews de novo a determination that the defendant failed to allege sufficient facts
to demonstrate a violation of his or her constitutional rights or that the record and files affirmatively
show that the defendant is entitled to no relief. State v. Dubray, 294 Neb. 937, 885 N.W.2d 540
(2016). Whether a claim raised in a postconviction proceeding is procedurally barred is a question
of law, which an appellate court reviews de novo. Id.




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        Appellate review of a claim of ineffective assistance of counsel is a mixed question of law
and fact. State v. Edwards, 294 Neb. 1, 880 N.W.2d 642 (2016). When reviewing a claim of
ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court
for clear error. With regard to the questions of counsel’s performance or prejudice to the defendant
as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984), an appellate court reviews such legal determinations independently
of the lower court’s decision. State v. Edwards, supra.
                                           V. ANALYSIS
                               1. DENIAL OF POSTCONVICTION RELIEF
       Magallanes asserts that the district court erred in denying his amended motion for
postconviction relief without an evidentiary hearing.
                                         (a) Applicable Law
        A court must grant an evidentiary hearing to resolve the claims in a postconviction motion
when the motion contains factual allegations which, if proved, constitute an infringement of the
defendant’s rights under the Nebraska or federal Constitution. State v. Starks, supra. If a
postconviction motion alleges only conclusions of fact or law, or if the records and files in the case
affirmatively show that the defendant is entitled to no relief, the court is not required to grant an
evidentiary hearing. Id. It is fundamental that a motion for postconviction relief cannot be used to
secure review of issues which were known to the defendant and could have been litigated on direct
appeal. State v. DeJong, 292 Neb. 305, 872 N.W.2d 275 (2015).
        To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his or her
counsel’s performance was deficient and that this deficient performance actually prejudiced the
defendant. State v. Hessler, 295 Neb. 70, 886 N.W.2d 280 (2016). To show deficient performance,
a defendant must show that counsel’s performance did not equal that of a lawyer with ordinary
training and skill in criminal law in the area. State v. Harris, 294 Neb. 766, 884 N.W.2d 710
(2016). To show prejudice, the defendant must demonstrate reasonable probability that but for
counsel’s deficient performance, the result of the proceeding would have been different. Id.
                            (b) Judicial Notice of Federal Court Orders
         Magallanes claims that the trial court erred by not taking judicial notice at the first
suppression hearing of two federal court orders from the proceedings against him in federal court.
In ruling on Magallanes’ amended postconviction motion, the district court determined that this
claim was procedurally barred because it could have been brought on direct appeal. We agree. Any
attempts to raise issues at the postconviction stage that were or could have been raised on direct
appeal are procedurally barred. State v. Dubray, 294 Neb. 937, 885 N.W.2d 540 (2016). This claim
was properly denied without an evidentiary hearing.
         Magallanes also claims, however, that his trial counsel was ineffective for not asking the
trial court to take judicial notice of these federal court orders during the first suppression hearing
in state court and for not objecting when the state district court said that it would not take judicial



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notice of the federal court’s decision. Because Magallanes was represented by the same counsel at
trial and on direct appeal, his first opportunity to bring this claim was in his postconviction action.
Although a motion for postconviction relief cannot be used to secure review of issues which were
or could have been litigated on direct appeal, when a defendant was represented both at trial and
on direct appeal by the same lawyer, the defendant’s first opportunity to assert ineffective
assistance of counsel is in a motion for postconviction relief. State v. Armendariz, 289 Neb. 896,
857 N.W.2d 775 (2015).
        Magallanes’ argument with respect to his ineffective assistance of trial counsel claim has
more to do with his assertion that the district court should have been bound by the federal court’s
interpretation of § 60-6,142 than it does with his assertion that the district court should have taken
judicial notice of the federal court orders. In the federal proceedings, the federal court found it
unreasonable for the deputy to believe that crossing briefly onto the shoulder of the highway
constituted driving on the shoulder in violation of § 60-6,142 and thus no probable cause existed
to pull over Magallanes’ vehicle. See U.S. v. Magallanes, 730 F. Supp. 2d 969 (D. Neb. 2010). At
the first suppression hearing in state court, Magallanes’ trial counsel introduced copies of the
findings and recommendations of the federal magistrate judge and the federal court memorandum
and order, granting his federal court motion to suppress. The district court received the federal
court orders for “argument purposes,” but concluded that the federal court’s analysis and
application of § 60-6,142 was not binding on Nebraska state courts. In ruling on Magallanes’ first
suppression motion, the district court found that regardless of the length of time or distance
Magallanes traveled on the shoulder of the highway, because his vehicle crossed over the lane line
onto the shoulder, he committed a violation of § 60-6,142, providing probable cause for the deputy
to conduct the traffic stop. On direct appeal, the Nebraska Supreme Court agreed and held that
momentarily crossing the fog line onto the shoulder of the highway constituted driving on the
shoulder and was a violation of § 60-6,142. 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).
        We agree that the federal court’s interpretation of § 60-6,142 was not binding precedent
with respect to the state district court’s ruling on Magallanes’ first motion to suppress. The
meaning of § 60-6,142 was a matter of state law and Nebraska’s state courts are not bound by the
decisions of federal courts on such matters. See Foucha v. Louisiana, 504 U.S. 71, 96, 112 S. Ct.
1780, 1794, 118 L. Ed. 2d 437 (1992) (“the definition of both crimes and defenses is a matter of
state law”); Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S. Ct. 1881, 1886, 44 L. Ed. 2d 508 (1975)
(“state courts are the ultimate expositors of state law”); State v. Gales, 269 Neb. 443, 694 N.W.2d
124 (2005) (Nebraska Supreme Court is final arbiter of Nebraska law); Neal v. Sch. Dist. of York,
205 Neb. 558, 288 N.W.2d 725 (1980) (state appellate court not bound by federal court’s
interpretation of state question).
        In his claim for ineffective assistance of trial counsel, Magallanes failed to set forth
allegations which, if proved, would establish that he is entitled to relief. Because the federal court’s
interpretation of § 60-6,142, a state law, was not binding precedent on the state district court,
Magallanes cannot show a reasonable probability that the result of the proceeding would have been
different if at the first suppression hearing, his trial counsel had requested that judicial notice be




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taken of the federal court’s decision. This claim was properly denied without an evidentiary
hearing.
                                        (c) Trial Court’s Role
         Magallanes claims that the trial court erred by rehearing and reweighing the evidence with
respect to the allegations against him, rather than acting as an intermediate court of appeals and
deferring to the federal court’s ruling on his suppression motion in the federal case. As with the
previous claim of trial court error, this claim could have been raised on direct appeal and is
procedurally barred. See State v. Dubray, 294 Neb. 937, 885 N.W.2d 540 (2016). This claim was
properly denied without an evidentiary hearing.
         Magallanes also claims, however, that his appellate counsel, who was the same as his trial
counsel, was ineffective for not assigning error on appeal with respect to the state district court’s
reweighing of the evidence regarding his suppression motion rather than deferring to the federal
court’s adjudication of his suppression motion. Magallanes appears to argue that with respect to
the hearing and ruling on his first suppression motion in state court, the state district court was not
a trial court, but rather, an intermediate appellate court, conducting a review of the federal court’s
decision of his federal court suppression motion. Magallanes’ arguments in support of this claim
stem from a misunderstanding of the relationship between the proceedings in federal and state
court in this case.
         It is true that in an appeal of a criminal case from the county court, the district court acts
as an intermediate court of appeals, and its review is limited to an examination of the record for
error or abuse of discretion. State v. Pester, 294 Neb. 995, 885 N.W.2d 713 (2016). It is also true,
that in reviewing a criminal conviction, an appellate court does not resolve conflicts in the
evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the
finder of fact. See State v. Betancourt-Garcia, 295 Neb. 170, 887 N.W.2d 296 (2016). However,
that was not the role of the district court in this case with respect to ruling on Magallanes’ first
state court motion to suppress. The district court was acting as a trial court. It received evidence in
the form of the exhibits offered by the State and by Magallanes and properly considered and
weighed that evidence in ruling on Magallanes’ first motion to suppress. The district court received
copies of the federal court orders for purposes of argument, but as discussed above, those orders
were not binding authority upon the district court.
         Magallanes cannot show that he was prejudiced by his appellate counsel’s alleged deficient
performance. There is not a reasonable probability that the result of Magallanes’ direct appeal
would have been different if his counsel had raised this claim on direct appeal. He has failed to set
forth allegations which, if proved, would establish that he is entitled to relief. This claim was
properly denied without an evidentiary hearing.
                                       (d) Remaining Claims
        Magallanes’ four remaining postconviction claims (one claim of trial court error with
respect to his motion for mistrial, two claims challenging the constitutionality of § 60-6,142, and
one claim challenging the constitutionality of the alternate basis for the traffic stop-checking for
impairment) are all procedurally barred because they were or could have been litigated on direct




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appeal. See State v. Dubray, 294 Neb. 937, 885 N.W.2d 540 (2016). These claims were properly
denied without an evidentiary hearing.
                     2. DENIAL OF REQUEST FOR APPOINTMENT OF COUNSEL
        Magallanes asserts that the district court erred in denying his request for appointment of
counsel. Under the Nebraska Postconviction Act, whether to appoint counsel to represent the
defendant is within the discretion of the trial court. State v. Rice, 295 Neb. 241, 888 N.W.2d 159
(2016). When the assigned errors in a postconviction petition before the district court contain no
justiciable issues of law or fact, it is not an abuse of discretion to fail to appoint counsel for an
indigent defendant. Id. As discussed above, Magallanes’ amended postconviction motion
contained no justiciable issues. Accordingly, the district court did not abuse its discretion by
denying his request for appointment of counsel. This assignment of error is without merit.
                                        VI. CONCLUSION
        The district court did not err in denying Magallanes’ amended motion for postconviction
relief without an evidentiary hearing, nor did it abuse its discretion in denying his request for
appointment of counsel.
                                                                                      AFFIRMED.




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