United States District Court, District of Nebraska
Thomas D. Thalken, United States Magistrate Judge.
This matter is before the court on the petitioner’s, Edward Robinson, Jr. (Robinson), Motion for Evidentiary Hearing (Filing No. 45). The petitioner filed a brief (Filing No. 46) in support of the motion. The respondent, Diane Sabatka-Rine, filed an Objection to Motion for Evidentiary Hearing (Filing No. 48) in response. The petitioner filed a brief (Filing No. 50) in reply.
On November 15, 2004, Robinson was convicted of first degree murder and use of a firearm to commit a felony. As relevant to the instant motion, during trial Michael Whitlock (Whitlock) testified about phone calls he had with Robinson on the day of the murder. Specifically, Whitlock testified,
[Robinson] just said -- he asked where [the victim] was at and I was like, I don’t know. He was like, Well, [the victim] came by my girl house trippin’ and callin’ her all out of her name and disrespecting her, and I’m looking for him. I was like, Well, I can’t give you the number, but I’ll call you back.
See Filing No. 14-1 - Trial Tr. p. 45:9-14. Ten to fifteen minutes later, Whitlock testified he received another call from Robinson, “Well, when [Robinson] called, I said, Hello. He was like, Man, your cousin[, the victim, ] wrong for coming by my house disrespecting my girl like that. You don’t go by nobody house and disrespecting. And then he was like, I don’t want to have to pop him.” Id. at 49:10-14. During a third phone conversation, Whitlock testified the following exchange with Robinson occurred, “[Robinson] said, Are you with [the victim]? And I said, What? And he said, Is you with your boy? Is you in that Impala? And then I said, No.” Id. at 51:3-5. Four to five minutes later, Whitlock received a call the victim had been shot in what Whitlock identified as the victim’s Impala. Id. at 35:12 - 36:7, 53:5-6.
Following an appeal, the Supreme Court of Nebraska affirmed Robinson’s conviction and later denied a petition for post-conviction relief. In addressing Robinson’s challenge to his conviction for first degree murder, the Supreme Court of Nebraska concluded “there [was] sufficient evidence to support the conclusions that the defendant killed the victim and that he committed the killing with deliberate and premeditated malice.” State v. Robinson, 724 N.W.2d 35, 74 (Neb. 2006). The Supreme Court of Nebraska relied, in part, on the statement Robinson made that he did not want to have to “pop” the victim. Id. The Supreme Court of Nebraska reasoned the “statement could easily be interpreted as a reference to killing the victim and, while not conclusive, supports an inference that the defendant was contemplating the possibility of killing the victim well before their actual confrontation.” Id. Additionally, the court relied on Whitlock’s testimony wherein he “indicates that the defendant was angry with the victim and had been searching for the victim, suggesting both a motive and a deliberate intent to confront the victim and perhaps to kill him.” Id.
Robinson subsequently filed a petition for writ of habeas corpus in this court. See Filing No. 1 - Petition; Filing No. 39 - Amended Petition. Robinson now requests an evidentiary hearing to expand the record pursuant to 28 U.S.C. § 2254(e)(2). See Filing No. 45 - Motion. Robinson seeks to develop facts that demonstrate Robinson is actually innocent of first degree murder. See Filing No. 46 - Brief p. 2. The new evidence is an August 8, 2014, affidavit from Whitlock, which Robinson received in August 2014. Id.; see Filing No. 36-1 - Whitlock Aff. Whitlock’s handwritten affidavit provides:
I Michael Whitlock am writing this affidavit to let the state and anybody else it may concern, that the statements about this case that the statement that I made was not wat [sic] I actully [sic] said, the state took my words and turned them around, I never said that Eddie Robinson did what he was accused of. Yes he did call my phone the nite [sic] of the incident, yes I did talk to him, but he never said that he was going to hurt somebody, he jus [sic] wanted to talk it out. During the time of the trial, I was under arrest of the Federal Goverment [sic], and was told that if I said wat [sic] they wanted me to say that I may get a time cut on my sentence, at that time the Feds said I was looking at 24yrs, which was not true because I ended up pleading out to 12yrs 7 months, but I never got a time reduction [sic], I did my full time, the prosetor [sic] on the case never contacted me or my family and like I said I never got a time cut I did all my time. For the record, Eddie Robinson never told me on the phone that he was going to kill Herb Faint, he jus [sic] said that he jus [sic] wanted to talk to him.
See Filing No. 36-1 - Whitlock Aff.
Robinson argues Whitlock’s affidavit recants Whitlock’s trial testimony, explaining Robinson never actually made the statement, “I don’t want to have to pop him.” See Filing No. 46 - Brief p. 2-4. Robinson contends the Supreme Court of Nebraska solely relied upon Whitlock’s testimony in affirming Robinson’s conviction for first degree murder and without this evidence, no reasonable juror could have found Robinson guilty of first degree murder beyond a reasonable doubt. Id. Instead, Robinson argues the evidence only supports a finding of manslaughter. Id. Robinson asserts he could not have previously discovered Whitlock’s recantation and has met the threshold for an evidentiary hearing under § 2254(e)(2). Id.
The respondent argues the proffered evidence does not approach the quantum of proof necessary to show actual innocence and therefore this court should deny the motion. See Filing No. 48 - Response. The respondent contends the affidavit, which raises the question whether Whitlock lied at trial or is lying now, is hardly enough to meet the high threshold of proof necessary to demonstrate actual innocence. Id. at 5. The respondent asserts the affidavit is suspect because it comes in existence ten years after Whitlock’s testimony, it contains hearsay about an alleged agreement between Whitlock and the prosecution, and it demonstrates Whitlock’s dissatisfaction with his federal court case motivated Whitlock’s allegations. Id. at 5-6. The respondent contends the evidence presented at trial, even when considered along with Whitlock’s late impeachment evidence, supports Robinson’s conviction. Id. at 6-8.
In reply, Robinson reiterates he acted diligently, which the respondent has not contested, and Whitlock’s affidavit shows Robinson is actually innocent of first degree murder. See Filing No. 50 - Reply 1-9. Robinson clarifies to succeed on his claim of actual innocence he need only demonstrate he is actually innocent of first degree murder, not of any other offense. Id. Robinson contends there is no authority to support the conclusion factual guilt of a separate offense would be grounds to enforce the conviction based on the charged crime. Id. Robinson further argues Whitlock’s ...