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Robinson v. Sabtka-Rine

United States District Court, D. Nebraska

September 2, 2016

DANNY R. ROBINSON, Petitioner,
v.
DIANE SABTKA-RINE, Neb. Stat. Penitentiary, and SCOTT FRAKES, Respondents.

          MEMORANDUM AND ORDER

          Joseph F. Bataillon, Senior United States District Judge.

         This matter is before the court on Danny R. Robinson's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Filing No. 1 (Petition). A jury found Robinson guilty of first degree murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a felon in connection with the 2001 shooting death of Daniel Lockett. Id. at 2; Filing No. 19-3 at 3 (Robinson III).[1] The state district court initially sentenced Robinson to life imprisonment without parole on the first degree murder charge and to two consecutive sentences of five to ten years' imprisonment on the use and possession charges. Filing No. 19-1 at 7-8 (Robinson I). After a direct appeal to the Nebraska Supreme Court, the Court affirmed Robinson's convictions and sentences for the use and possession charges but resentenced Robinson to life in prison. Id. at 29. After an extended and careful review of the record, the court finds no violation of Robinson's constitutional rights and thus denies his Petition for a Writ of Habeas Corpus.

         I. FACTUAL BACKGROUND

         The Nebraska Supreme Court summarized the relevant facts as follows:

On January 13, 2001, Dupree Reed and his brother Terez Reed attended a party in Omaha, Nebraska. A confrontation occurred between two street gangs, and shots were fired. Terez died as a result. On the way to Terez' funeral on January 22, Robinson told Courtney Nelson and James Edwards that he thought Gary Lockett had murdered Terez.
After Terez Reed's funeral, friends and relatives gathered at the home of his aunt. A few hours later, Dupree Reed left the gathering and got into a green Chevrolet Tahoe driven by Robinson. At trial, Dupree described three other people who were in the Tahoe by their gang names: Killer C (Nelson), Boomerang (Edwards), and B Dub (Antonio Witherspoon). Dupree stated that while he was riding in the Tahoe, Robinson said he knew who killed Terez. Robinson was referring to Gary Lockett, whose gang name was "Pipe." As the Tahoe passed a house located in North Omaha, Robinson said, "That's the house that they be at."
Robinson parked the Tahoe, and he and Dupree Reed got out. They approached the above-mentioned house by crossing various yards. According to Dupree, he stayed back by the alley while Robinson jumped a fence and "went on the side [of the house] by the window." Robinson was standing on something, but Dupree could not see what it was. Dupree testified that Robinson was "[r]ight up close" to the house and was looking in the window.
Dupree testified that as he and Robinson walked toward the house, he knew they were going to "shoot it up" because that is what they had said in the Tahoe earlier when they drove past the house. Dupree said that Robinson shot first and that he then started firing. Dupree had a .22- caliber handgun, and he fired six or seven shots at the house. He quit firing because his gun jammed, but Robinson was still shooting. According to Dupree, when they returned to the Tahoe, "[Robinson] said, he'd kill us if we say anything." Edwards testified that while he waited in the Tahoe, he heard numerous shots fired. He heard different noises that did not sound like they all came from one gun. Edwards said that after he heard the gunfire and saw flashes from the guns, Dupree Reed and Robinson came running back to the Tahoe. When Robinson got into the Tahoe, Edwards saw a 9mm Beretta gun in Robinson's hands.
Edwards noticed that Robinson's weapon had fired all its rounds because it was "cocked all the way back." He said Reed had a .22-caliber "German-style looking gun." Edwards claimed to be familiar with guns and to have fired them before. Edwards told Robinson that he was not happy with Robinson, and Robinson said, "Don't tell nobody." Edwards testified: "He, like, threatened to kill people or whatever."
Nelson testified that he met Robinson in 1993 and that at that time, Robinson claimed to be affiliated with the "Hilltop Crips" gang. Nelson said he left the funeral reception for Terez Reed in the green Tahoe driven by Robinson. He saw Robinson with a 9-mm handgun, and he saw Dupree Reed with a .22-caliber automatic handgun.
Daniel Lockett was the victim of the above-described shooting. As he was bending down to put on his shoes in the living room of his mother's house in North Omaha, he was shot. Lockett's sister, Teresa Mountain, who was also in the living room, heard at least 15 or 20 shots fired. The gunfire which came through the side window in the front of the house sounded different than the shots she heard in the back. She heard the shots in the front before she heard shots from the back. After the shooting, Mountain shook Daniel, but he did not respond. According to Mountain, Gary Lockett was not in the house at the time of the shooting.
Daniel Lockett died as a result of the incident described above. He sustained four gunshot wounds: one to the right shoulder, two to the right side of his chest, and one to the right forearm. One of the bullets passed through the upper lobe of Lockett's right lung and then through his heart.
Omaha police observed nine bullet holes in the window in the front of the house where the Lockett shooting occurred. Shell casings from a 9mm handgun and bullet fragments found at the scene were determined to have been fired by the same 9-mm weapon. The bullets retrieved from Lockett's body were most consistent with having been fired from a 9-mm handgun. The police suspected that Daniel Lockett's murder could have been in retaliation for the murder of Terez Reed.
Robinson was subsequently charged with first degree murder in the death of Daniel Lockett, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a felon. Following a jury trial, Robinson was convicted and sentenced to life imprisonment without parole on the murder charge and two consecutive sentences of 5 to 10 years' imprisonment on the use and possession charges.

Filing No. 19-1 at 6-8 (Robinson I).

         II. PROCEDURAL HISTORY

         In 2006, on direct appeal, the Nebraska Supreme Court affirmed Robinson's convictions on all three counts and the sentences for the use and possession convictions, but vacated the sentence of life imprisonment “without parole.”[2] Filing No. 19-1 at 29 (Robinson I). The Court found that the “without parole” feature of the murder sentence was not authorized by statute and remanded the case with directions to the trial court to resentence Robinson to life imprisonment. Id. at 28-29. In March 2008, Robinson filed a motion for postconviction relief in which he made numerous claims of ineffective assistance of trial counsel. Filing No. 19-3 at 3 (Robinson III). In March 2009, the district court granted an evidentiary hearing limited to certain issues. Id. In February 2010, the district court concluded that Robinson failed to show that his counsel's performance was deficient. Id. at 4. The district court further noted that even if Robinson could show deficient performance by his counsel, he could not show any prejudice resulting from counsel's alleged deficient performance. Id.

         In May 2011, Robinson filed a pro se motion he titled as a second motion for postconviction relief.[3] Id. In effect, Robinson sought reinstatement of his appeal by this motion. Id. Accordingly, the district court denied the motion, reasoning that a postconviction action was not the appropriate vehicle to request a reinstatement of the appeal from the denial of an earlier postconviction motion. Id. at 4-5. Robinson appealed this denial to the Nebraska Supreme Court. Id. at 5. The Court determined that although Robinson's motion was titled as a postconviction action, it included a request for reinstatement of his appeal due to official negligence, which is a claim cognizable under Nebraska law. Id. The Court reversed the denial of the motion and remanded the case to the district court to consider the motion. Id. Under its nunc pro tunc power, the district court reinstated Robinson's appeal from the February 2010 order in April 2013. Id. The district court denied this motion after an evidentiary hearing. Id. Robinson then appealed the state district court's decision to the Nebraska Supreme Court, who denied it in March 2014.[4] Id.

         On March 19, 2014, Robinson filed a motion for rehearing with the Nebraska Supreme Court. Filing No. 19-19 (Motion Rehearing Brief Robinson III). The Court denied this motion as it was untimely filed. Filing No. 29 at 11 (Brief of Respondents). Robinson then submitted a petition for a writ of habeas corpus on March 21, 2014. Filing No. 1 at 174 (Petition).

         III. ...


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