IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

MATEO DEMATEOJUAN,

Petitioner, 

vs. 

ROB JEFFREYS,

Respondent.

8:23CV184

MEMORANDUM AND ORDER

This matter is before the Court on Respondent’s Motion for Summary Judgment. 

Filing No. 11. Respondent filed the relevant state court records, Filing No. 12, a 

statement of undisputed material facts, Filing No. 13, and a brief in support, Filing No. 

14. Petitioner Mateo Demateojuan (“Petitioner” or “Demateojuan”) did not file a brief in 

opposition to Respondent’s summary judgment motion by August 28, 2024, as the Court 

directed. See Filing No. 15. Thus, this matter is fully ripe for disposition. Respondent 

argues Demateojuan’s Petition for Writ of Habeas Corpus, Filing No. 1, must be 

dismissed because Demateojuan’s habeas claims are procedurally defaulted. The 

Court agrees and will dismiss the petition with prejudice.

I. FACTS

1. On May 27, 2022, Petitioner Mateo Demateojuan pleaded no contest in 

the District Court of Douglas County, Nebraska, to attempted first-degree sexual assault 

of a child. Filing No. 12-3 at 8; Filing No. 12-4 at 6–7, 15–16. 

2. On September 1, 2022, the state district court sentenced Demateojuan to 

44 to 46 years of imprisonment. Filing No. 12-3 at 11–12; Filing No. 12-4 at 34. 

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3. Demateojuan filed a direct appeal, challenging only that the state district 

court abused its discretion by imposing an excessive sentence. Filing No. 12-2 at 4; 

Filing No. 12-3 at 24–25. 

4. On January 11, 2023, the Nebraska Court of Appeals summarily affirmed 

Demateojuan’s conviction and sentence. Filing No. 12-1 at 3. 

5. Demateojuan did not petition the Nebraska Supreme Court for further 

review. Id. 

6. Demateojuan has not filed for postconviction relief in state court. See

Filing No. 1 at 3.

7. Demateojuan filed his habeas petition on May 10, 2023. Filing No. 1. 

II. ANALYSIS

Respondent submits that Demateojuan’s habeas petition must be dismissed 

because both of his habeas claims—that his sentence is excessive in violation of the 

Constitution and his counsel was ineffective in failing to prosecute his direct appeal, see

Filing No. 5—are procedurally defaulted. Upon review, the Court agrees.

A. Applicable Legal Standards

As set forth in 28 U.S.C. § 2254:

(b)(1) An application for a writ of habeas corpus on behalf of a person in 

custody pursuant to the judgment of a State court shall not be granted 

unless it appears that–

(A) the applicant has exhausted the remedies available in the courts of the 

State; or

(B)(i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the 

rights of the applicant.

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28 U.S.C. § 2254(b)(1).

The United States Supreme Court has explained the habeas exhaustion 

requirement as follows:

Because the exhaustion doctrine is designed to give the state courts a full 

and fair opportunity to resolve federal constitutional claims before those 

claims are presented to the federal courts . . . state prisoners must give 

the state courts one full opportunity to resolve any constitutional issues by 

invoking one complete round of the State’s established appellate review 

process.

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In Nebraska, “one complete round” 

ordinarily means that each § 2254 claim must have been presented to the trial court, 

and then in an appeal to either the Nebraska Supreme Court directly or to the Nebraska 

Court of Appeals, and then in a petition for further review to the Nebraska Supreme 

Court if the Court of Appeals rules against the petitioner. See Akins v. Kenney, 410 F.3d 

451, 454-55 (8th Cir. 2005). 

A state prisoner must therefore “fairly present” the substance of each federal 

constitutional claim to the state courts before seeking federal habeas corpus relief. 

O’Sullivan, 526 U.S. at 844. “In order to fairly present a federal claim to the state 

courts, the petitioner must have referred to a specific federal constitutional right, a 

particular constitutional provision, a federal constitutional case, or a state case raising a 

pertinent federal constitutional issue in a claim before the state courts.” Carney v. 

Fabian, 487 F.3d 1094, 1096 (8th Cir. 2007) (cleaned up). A habeas claim has not been 

fairly presented, and is thus procedurally defaulted, if a petitioner, in arguing his claim to 

the state courts, “relied solely on state law grounds—namely, that the trial court 

misapplied . . . state statutes and case law on point.” Id.

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Where “no state court remedy is available for the unexhausted claim—that is, if 

resort to the state courts would be futile—then the exhaustion requirement in § 2254(b)

is satisfied, but the failure to exhaust ‘provides an independent and adequate state-law 

ground for the conviction and sentence, and thus prevents federal habeas corpus 

review of the defaulted claim, unless the petitioner can demonstrate cause and 

prejudice for the default.’” Armstrong v. Iowa, 418 F.3d 924, 926 (8th Cir. 2005) (quoting 

Gray v. Netherland, 518 U.S. 152, 162 (1996)). Stated another way, if a claim has not 

been presented to the Nebraska appellate courts, including in a petition for further 

review to the Nebraska Supreme Court, and the claim is now barred from presentation, 

the claim is procedurally defaulted, not unexhausted. Akins, 410 F.3d at 456 n.1. 

“The Nebraska Postconviction Act, Neb. Rev. Stat. § 29-3001 et seq. (Reissue 

[2016 & Supp. 2023]), is available to a defendant to show that his or her conviction was 

obtained in violation of his or her constitutional rights,” however “the need for finality in 

the criminal process requires that a defendant bring all claims for relief at the first 

opportunity.” State v. Sims, 761 N.W.2d 527, 533 (Neb. 2009). “It is well established 

that a petition for postconviction relief may not be used to obtain review of issues that 

were or could have been reviewed on direct appeal. 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, 885 N.W.2d 540, 552 (Neb. 2016). Furthermore, 

in 2011, the Nebraska Legislature created a one–year time limit for filing a verified 

motion for postconviction relief. See Neb. Rev. Stat. § 29–3001(4); State v. Smith, 834 

N.W.2d 799, 801 (Neb. 2013).

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B. Demateojuan’s Habeas Claims

Applying the foregoing principles here, it is apparent that Demateojuan’s habeas 

claims are procedurally defaulted. With respect to his first claim, Demateojuan raised 

an excessive sentence claim on direct appeal, but his claim on appeal was based solely 

on Nebraska law. Filing No. 12-2. In his appellate brief, Demateojuan cited only to 

Nebraska state cases, which did not address any federal constitutional provision 

relevant to Demateojuan’s habeas claim. Id. at 6–10. Thus, Demateojuan failed to 

fairly present his federal habeas claim to the state courts. Moreover, even if the Court 

assumed Demateojuan presented his habeas excessive sentence claim on direct 

appeal, Demateojuan failed to invoke one complete round of Nebraska’s appellate 

review process as he did not file a petition for further review in the Nebraska Supreme 

Court. See Filing No. 1 at 2; Filing No. 12-1 at 3. Demateojuan is procedurally barred 

from raising his habeas claim in a motion for postconviction relief as the claim could 

have been raised on direct appeal. Therefore, Demateojuan’s excessive sentence 

habeas claim is procedurally defaulted.

In his second claim, as liberally construed by this Court, Demateojuan claims that 

his counsel was ineffective in failing to prosecute his direct appeal. See Filing No. 5 at 

1. Specifically, as Respondent notes, Filing No. 14 at 4, Demateojuan appears to claim 

that his counsel was ineffective in failing to file a petition for further review to the 

Nebraska Supreme Court. See Filing No. 1 at 2, 5. Demateojuan was represented by 

the same counsel on direct appeal as represented him in the trial court. Id. at 13. 

“When, as here, a defendant was represented both at trial and on direct appeal by the 

same counsel, the defendant's first opportunity to assert ineffective assistance of 

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counsel is in a motion for postconviction relief.” State v. Henderson, 920 N.W.2d 246, 

255 (Neb. 2018). However, Demateojuan has not presented this claim in a state 

postconviction motion, and he is now time-barred from presenting this claim in a 

postconviction motion as more than one year has passed since his direct appeal 

mandate issued. See State v. Koch, 933 N.W.2d 585, 589 (Neb. 2019) (one-year 

limitations period for filing motion for postconviction relief begins to run on date 

appellate court issues its mandate affirming defendant's conviction on direct appeal). 

Thus, his second claim is procedurally defaulted.

C. No Cause and Prejudice or Miscarriage of Justice 

Demateojuan also has not demonstrated cause and prejudice to excuse the 

procedural default of his claims, nor has he demonstrated that the Court’s failure to 

consider his defaulted claims will result in a fundamental miscarriage of justice. 

Coleman v. Thompson, 501 U.S. 722, 750 (1991). Demateojuan does not claim that he 

is actually innocent, nor is there any indication, upon careful review of the petition and 

records before the Court, that Demateojuan suffered any actual prejudice from his 

inability to raise his habeas claims. 

Because Demateojuan’s claims are procedurally defaulted, the Court will dismiss 

the petition with prejudice.

III. CERTIFICATE OF APPEALABILITY

A petitioner cannot appeal an adverse ruling on a petition for writ of habeas 

corpus under § 2254 unless granted a certificate of appealability. 28 U.S.C. § 

2253(c)(1); 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b)(1). The standards for 

certificates (1) where the district court reaches the merits or (2) where the district court 

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rules on procedural grounds are set forth in Slack v. McDaniel, 529 U.S. 473, 484-85 

(2000). The Court has applied the appropriate standard and determined that 

Demateojuan is not entitled to a certificate of appealability.

IT IS THEREFORE ORDERED that:

1. Respondent’s Motion for Summary Judgment, Filing No. 11, is granted.

2. Petitioner’s habeas petition, Filing No. 1, is dismissed with prejudice 

because Petitioner’s claims are procedurally defaulted.

3. The Court will not issue a certificate of appealability in this matter.

4. A separate judgment will be entered.

Dated this 21st day of October, 2024.

BY THE COURT:

Joseph F. Bataillon

Senior United States District Judge

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